DIVISIONAL COURT FILE NO. 147/07

COURT FILE NO.: 03-CV-249024SR

DATE: 20080307

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT MOTIONS

RE: Sider et al. v. City of Toronto

BEFORE: Mr. Justice Ferrier

COUNSEL: William G. Scott for the plaintiffs/moving parties/appellants

Christina Porretta for the defendant/responding party/respondent

HEARD: February 27, 2008

E N D O R S E M E N T

[1] The appellant appeals the decision of Master Brott dismissing a motion to set aside a Registrar's order which dismissed this action for delay.

[2] This action was instituted under the simplified rules: the Registrar's order was made pursuant to rule 76.06.

[3] The relevant facts are fully and clearly set out in the reasons of the Master.

[4] After a thorough review of the facts and the law, the Master made the following findings:

[31] During the period of delay, the limitation period passed. Memories faded. The principal plaintiff passed away. I accordingly find that the evidence supports and inexcusable delay that gives rise to a substantial risk that a fair trial may not now be possible.

[32] Even if I had found that the plaintiffs have satisfactorily rebutted the presumption of prejudice because medical records do exist, and the City was able to properly investigate liability, the fact that the principal plaintiff is now deceased is in and of itself convincing evidence of actual prejudice to the City.

[5] The appellant concedes that there was inexcusable delay and submits that the only issue is that of prejudice to the defendant. The appellant argues that there is no prejudice to the defendant; rather any prejudice is to the plaintiff by reason of the death of the plaintiff. Further, that on a balancing of the two factors, inexcusable delay in the context of no prejudice, the delay here does not trump the lack of prejudice. That, in the end, is the issue.

[6] The appellant's submissions exhibit the correct approach in dealing with the issues.

[7] Scaini v. Prochnick et al. (2007), 2007 ONCA 63, 85 O.R. (3d) 179 (C.A.), and Marché v. D'Alimentation; Denis Theriault v. Giant Tiger Stores Ltd. (2006), 87 O.R. (3d) 600, set out the contextual approach that is to be followed. Giant Tiger was decided after the Master's decision here. Scaini was decided only a few weeks before and does not appear to have been brought to the attention of the Master (she did however refer to the motion judge's decision in Scaini).

[8] Giant Tiger and Scaini were decisions having to do with a Rule 48 dismissal order. Here, there was a Rule 76 dismissal order.

[9] It makes no difference. The same principles apply. This is apparent from the opening words of Sharpe J. in Giant Tiger:

When should a litigant be permitted to revive an action that has been dismissed for delay?

[10] The oft referred to criteria in Reid v. Dow Corning Corp., [2001] O.J. No. 2365; 11 C.P.C. (5th) 80 (S.C.J.), were considered in Scaini and Giant Tiger. But in Scaini and Giant Tiger, the court held that it is required to consider and weigh all relevant factors, including those in Reid.

[11] An appellant need not satisfy each relevant criterion in order to have the registrar's order set aside. The court should exercise its discretion upon a consideration of the relevant factors and will attempt to balance the interests of the parties to determine what is just in the circumstances of the particular case. A contextual approach is required. Scaini paras.21-23; Giant Tiger para.21.

[12] The submission that there is no prejudice to the defendants is not entirely devoid of merit. There are many cases which go to trial, often in personal injury matters, when the plaintiff is deceased; and although the defendants have not been able to examine the plaintiff on discovery, similarly he will not testify at a trial. Even had the defendants examined him on discovery, that discovery may have been evidence at a trial to the defendant's detriment. See Hartman Estate v. Hartfam Holdings Ltd., 2006 266 (ON CA), [2006] O.J. No. 69, paras.90 and 91.

[13] I also note that the city was able to properly investigate liability and the medical records do exist.

[14] It may well be that the plaintiff's death results in greater prejudice to the plaintiff's estate than it does to the defendants. Nevertheless, the defendants clearly are prejudiced to some extent by not being able to cross-examine the plaintiff.

[15] I am mindful that the limitation period has long passed and that, in and of itself, is presumed prejudicial: Kassam v. Sitzer, [2004] O.J. No. 3431.

[16] Nevertheless, even assuming that there is no prejudice to the defendant, I remain of the view that the appeal should be dismissed.

[17] Here the statement of claim was issued May 20, 2003. Little was done by the plaintiff thereafter.

[18] The action was dismissed February 23, 2004.

[19] The Plaintiff's solicitors claim not to have received the order dismissing the action. It was told about it by the plaintiff. Nothing effective was done before the launch of the motion on October 19, 2006.

[20] The motion was heard February 21, 2007.

[21] From the dismissal until the hearing of the motion was a period of three years; and to the date the motion was launched two years and eight months.

[22] Accordingly, the delay was not one of mere inadvertence and it is conceded to be inexcusable.

[23] Second, the plaintiff will not be left without a remedy, an important consideration: Giant Tiger, para.28.

[24] Third, excusing a delay of this magnitude and gravity risks undermining public confidence in the administration of justice: Giant Tiger, para.32.

[25] Fourth, one must have regard to the security of the legal position gained by a litigant through a court order granted because of delay or default: Giant Tiger, para.36.

[26] Fifth, when an action has been disposed of in favour of a party, that party's entitlement to rely on the finality principle grows stronger as the years pass: Giant Tiger, para.38.

[27] In my view a three year inexcusable delay, or even a two years and eight months inexcusable delay, in the circumstances here and for the foregoing reasons, trumps any lack of prejudice.

[28] Appeal dismissed with costs fixed at $4,000, including disbursements and GST.

Ferrier J.

Released: March 7, 2008

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