COURT FILE NO.: 1718/08
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
VALIN, J.M. WILSON, RAY, JJ.
B E T W E E N:
ROSARIO GIGLIOTTI
Faisal B. Joseph, for the Plaintiff (Respondent)
Plaintiff (Respondent)
- and -
JULIAN FANTINO, RON HITINGA, JOHN DOE AND THE LONDON POLICE SERVICES BOARD
André I. G. Michael, for the Defendants (Appellants)
Defendants (Appellants)
HEARD: April 15, 2009
THE COURT:
[1] This is an appeal from the order of Gorman J. who dismissed the appellant’s motion seeking a dismissal of the plaintiff’s claim for delay. She gave no reasons.
[2] As a result we were required to hear this matter de novo.
[3] After giving consideration to full argument of this matter, we conclude that the motion for dismissal for delay should be dismissed.
[4] While we have some concern concerning the respondents’ evidence which was largely based on the information and belief of counsel – the same counsel on this appeal, we are satisfied that the reasons for the delay are insufficient to establish that the plaintiff intended to abandon his cause of action.
[5] The action was commenced July 20, 1998 claiming damages in excess of $450,000 for injuries inflicted by the defendants on April 8, 1998 during the course of an alleged false arrest and wrongful imprisonment. A statement of defence was delivered October 15, 1998 followed by examinations for discovery at which the plaintiff gave certain undertakings. Virtually nothing occurred until January 2008 when the plaintiff served an expert report. That prompted the defendants to launch their motion. While the defendants wrote to the plaintiff from time to time, no letter was sent to the plaintiff demanding that the plaintiff comply with undertakings and set the action down for trial failing which, the defendants would launch a motion to dismiss for delay.
[6] After the launch of this motion initially returnable March 4, 2008, the plaintiff set the action down for trial, a pretrial was conducted, and a trial date set. It was not proceeded with because of this pending appeal.
[7] The defendants contend that the plaintiff’s delay is evidence in and of itself of prejudice but have failed to meet the burden upon them to show no prejudice.
[8] The plaintiff contends that the delay was caused by great difficulty in obtaining an expert who would prepare an opinion and be prepared to give evidence against the police defendants. He was also impecunious although his impecuniosity was more of an impediment than a reason for the delay.
[9] We are satisfied that the plaintiff has met the burden upon him, and that the delay was not intentional or contumelious.
[10] In order to succeed the defendants must show the delay to be inordinate and inexcusable; and that there is a substantial risk that a fair trial will not be possible for the defendants (Belanger v. Southwestern Insulation Contractors Ltd., [1993] 16 O.R. (3d) 457 at p. 471 (Borins J.).
[11] Prejudice to the defendants is to be viewed through the lense of the availability of witnesses, witness’ recollection, documentary evidence, and preserved evidence (Belanger v. Southwestern Insulation Contractors Ltd., supra at p. 471).
[12] The defendants provided no evidence of prejudice but argued that it should be inferred from the delay. Affidavits of documents were completed and exchanged shortly after the close of pleadings. Examinations for discovery of the parties were completed, thereby preserving their evidence. Any presumption of prejudice has therefore been rebutted (Woodheath Developments Ltd., [2003] 66 O.R. (3d) 71 (Ont. Div. Ct.) at 732, approved in Armstrong v. McCall (2006) 28 C.P.C. (6th) 213 at 229 (Ont. C.A.)
[13] We therefore conclude on the evidence before us that there is not a substantial risk the defendants could not obtain a fair trial.
[14] The defendants’ appeal is, therefore, dismissed. Costs to the plaintiff fixed at $3,500.
Failure to give Reasons
[15] The failure of the motions judge to give reasons as required is unacceptable and created needless delay and expense for the parties.
[16] It is regrettable that the motions judge neglected to give any reasons for dismissing the motion or for ordering no costs.
[17] It is the expectation of the parties that reasons be given.
[18] The rule is that an error of law is committed where the absence of reasons prevent meaningful appellant review of the correctness of the decision (R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869 at para 28).
[19] It is acknowledged that a motions judge may be under workload pressures that prevent extensive reasons (Crudo Creative Inc. v. Narin, [2007] O.J. No. 5334 at para. 6).
[20] But the failure to even attempt a few lines to explain the decision making process places unnecessary burdens upon the litigants, upon the court, and is unacceptable. A delay of in excess of a year has resulted.
_____“Valin J.”
Valin J.
“J. M. Wilson J.”
J. M. Wilson J.
______“Ray J.”
Ray J.
Released: April 16, 2009