ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
MICHELE MICALLEF, RICHARD MICALLEF, CHRISTIAN MICALLEF, MATHEW MICALLEF, by their Litigation Guardian Richard Micallef, MARY DELICATA and PAUL DELICATA
Plaintiffs/Appellants
- and -
FRANK DODIG
Defendant
- and -
ING INSURANCE COMPANY OF CANADA
added by Order pursuant to section 258(14) of the Insurance Act, R.S.O. 1990, c.I.8
Third Party/Respondent
Alfred J. Esterbauer, for the Plaintiffs/Appellants
P. Ho, for the Third Party/Respondent
HEARD AT TORONTO: October 6, 2009
M. Dambrot J.
1The Plaintiffs appeal from the order of Master Glustein, delivered April 17, 2009, refusing to set aside an order of the registrar dated June 2, 2003, which dismissed the plaintiffs’ action for delay.
BACKGROUND
2On November 16, 2000, the plaintiff Michelle Micallef (“Micallef” or “the plaintiff”) was operating a motor vehicle in the City of Mississauga when she became involved in a motor vehicle accident with a vehicle driven by the defendant.
3At the time of the accident, the defendant was insured by the ING Insurance Company pursuant to a standard automobile insurance policy.
4Micallef, along with the other plaintiffs (who brought claims under the Family Law Act), issued a claim against the defendant on October 20, 2002, seeking damages against the defendant due to his alleged negligence in causing the accident.
5At the time, some actions commenced in Toronto were randomly assigned to “civil case management.” This was one such case. Mandatory civil case management is no longer in effect in Toronto. Pursuant to Rule 77.08(1) of the Rules of Civil Procedure, in cases subject to the civil case management regime, if no defence was filed and the proceeding was not disposed of by final order or judgment within 180 days, the registrar was obliged to dismiss the proceeding as abandoned.
6The plaintiffs served their claim on the defendant on February 15, 2003.
7On February 27, 2003, the defendant’s trustee in bankruptcy advised counsel for the plaintiffs that Dodig had entered bankruptcy on December 13, 2002, and that all actions against him were thereby stayed.
8In March 2003, counsel for the plaintiffs received a case expiry notice from the court advising that the proceeding would be dismissed as abandoned if no defence were filed or the proceeding was not disposed of by final order or judgment before April 28, 2003. On April 11, 2003, approximately two weeks prior to the deadline date stated in the case expiry notice, counsel for the plaintiffs swore an affidavit for an “over-the-counter” ex parte motion to add the trustee in bankruptcy as a party to the action. Master Hawkins apparently adjourned the motion “to be dealt with by the Bankruptcy Court on April 22, 2003.” The matter was not dealt with by the Bankruptcy Court on April 22, 2003, or at any time prior to the order of dismissal.
9On June 2, 2003, the registrar issued the Dismissal Order, as no defence had been filed and no disposition by final order or judgment had occurred within 180 days of issuance of the statement of claim.
10On September 29, 2004, the defendant’s Trustee in Bankruptcy advised the plaintiffs that the stay had been lifted on June 3, 2004.
11I do not consider it necessary to otherwise recount the sorry conduct of this proceeding by counsel for the plaintiffs (not counsel who appeared for the plaintiffs before me) between June 2, 2003, and the hearing of the motion to set aside the order of dismissal on April 3, 2009, except to explain how ING became involved, and to note that Master Glustein found as a fact that no prejudice was occasioned by the delay in bringing the motion.
12On July 3, 2003, counsel for the plaintiffs wrote to ING, and advised that Micallef was involved in a motor vehicle accident with Dodig, who was insured by ING, on November 16, 2000 in Mississauga. Counsel provided an insurance policy number to ING, and enclosed the statement of claim that had been served on Dodig on February 16, 2003.
13On July 11, 2003, a representative of ING contacted counsel for the plaintiffs and advised that the policy number found on the police report did not correspond with ING’s numbering system and that they were unable to find a record of Dodig as their insured. ING took no further steps to ascertain its responsibility for the matter at that time.
14No further communication between the plaintiffs and ING took place until January 26, 2007, when counsel for the plaintiffs wrote to ING and reiterated that a statement of claim had been served on Dodig on February 16, 2003, and requested that ING file a defence to the action.
15On September 12, 2007, ING obtained an order adding itself as a statutory third party, pursuant to section 258(14) of the Insurance Act.
16On October 1, 2007, ING served the plaintiffs with a statement of defence and jury notice. The parties jointly scheduled examinations for discovery to proceed on March 14, 2008.
17On January 9, 2008, counsel for ING advised the plaintiffs that when ING attempted to file its statement of defence, the court office indicated that the action had been dismissed as abandoned. This precipitated the motion to set aside the dismissal order.
THE DECISION OF MASTER GLUSTEIN
18In considering whether or not to set aside the registrar’s order, the Master recognized that, as a result of the decision of the Court of Appeal in Scaini v. Prochnicki (2007), 2007 ONCA 63, 85 O.R. (3d) 179, he was obliged to consider and weigh all relevant factors to determine the order that was just in the circumstances of the particular case, and that the analysis must be contextual in order to permit the court to make the order that is just. In applying this test, he placed primary, if not exclusive emphasis on the four factors mention by Master Dash in Reid v. Dow Corning Corp. (2001), 11 C.P.C. (5th) 80, namely, in the language of the decision: (i) an explanation of the litigation delay, (ii) inadvertence in missing the deadline, (iii) the motion is brought promptly, and (iv) no prejudice to the defendant.
19With regard to these four factors, the Master concluded that:
(i) There was no satisfactory explanation of the delay for obtaining judgment or having a defence filed.
(ii) There was no evidence of inadvertence in missing the April 28, 2003, deadline to obtain a defence or note the defendant in default.
(iii) The motion to set aside the Dismissal Order was not brought promptly.
(iv) ING did not establish actual prejudice.
20After making these findings, he stated, at paras. 111-112:
111 On the basis of the Reid factors, I would dismiss the motion to set aside the Dismissal Order. The plaintiffs failed to establish any of the factors except for lack of prejudice. The paucity of evidence on the other factors is compelling. Parties cannot be permitted to ignore deadlines imposed by the Rules and then wait four years to attempt to set aside a dismissal order, when they understood that their motion to set aside the dismissal order must be “renewed”.
112 To permit the action to continue simply because there is a lack of prejudice to ING would be to elevate the “prejudice” factor into a determinative factor …
21Before actually dismissing the motion, the Master went on to consider what he referred to as “other contextual factors at issue in this case” and concluded that they supported dismissing the motion. As I read the decision, he considered two such factors. The first was the fact that the case was subject to case management, and the second was an allegation by the plaintiffs that ING was acting improperly in opposing the motion.
22With respect to the former, he noted that because the action was subject to case management, the plaintiffs were required to move promptly to trial. He concluded that the plaintiffs’ conduct had been “the opposite of the purpose behind case management.”
23With respect to the second, he stated, at para 123:
123 Finally, I reject the submission by plaintiffs' counsel that there is any improper conduct by ING in opposing the motion to set aside the Dismissal Order after ING sought to be added as a statutory third party, served a statement of defence, and scheduled dates for examinations for discovery.
24In other words, he did not consider ING`s conduct to be a factor. As a result, in reality, the only contextual factor that he did consider was the fact that the case was subject to case management.
25Finally, the Master considered a separate argument raised by the plaintiffs that the registrar did not have jurisdiction to make the Dismissal Order because there was a stay of proceedings in effect under both section 69.1 of the Bankruptcy and Insolvency Act and under Rule 11.01 of the Rules of Civil Procedure. The Master rejected the argument. He concluded that the power of the registrar to dismiss an action under Rule 77.08(1) was unaffected by a stay.
26He stated, at paras. 131-133:
131 Rule 77.08(1) provides that the registrar shall dismiss the action if no defence has been filed and the proceeding has not been disposed of by final order or judgment within 180 days after the date of issue of the originating process. There is no exception under Rule 77.08(1) for a bankrupt defendant.
132 Rule 11.01 provides that upon bankruptcy, the plaintiff can move forthwith to obtain an order to continue. This rule does not refer to the registrar’s power to dismiss an action.
133 In order that the two rules can be read together in a consistent and logical manner (a principle of statutory interpretation), the plaintiff remains subject to Rule 77.08(1), but can seek an order to continue under Rule 11.01 in the event of bankruptcy to avoid a dismissal order.
27The Master then dismissed the motion.
ANALYSIS
28On this appeal, the appellants argued that the Master erred both in his determination of the order that is just in the circumstances of the particular case and in his conclusion that the provisions of the Bankruptcy and Insolvency Act did not deprive the registrar of jurisdiction to dismiss this action. I will consider these issues in turn. In discussing the first issue, I will assume that the Registrar’s order dismissing the claim was regular.
THE ORDER THAT IS JUST IN THE CIRCUMSTANCES
29No reader of the judgment of Master Glustein could fail to be impressed by his thoughtful, careful and learned discussion of this issue. Nonetheless, I am of the view that he fell into error.
30Without doubt the Master understood that the issue under consideration involved more than a rote application of a four part test. He understood that his analysis must be contextual, and that it was necessary to weigh all relevant factors to make an order that is just in the circumstances of the case. But I am of the view, nonetheless, that he failed to look at the matter in context, other than the context of Case Management, and as a result, he did not make the order that is just.
31The Master did thoroughly examine the four so-called Reid factors, and concluded that the absence of prejudice was outweighed by the insufficiently explained delay, and that the motion should be dismissed. Only then did he turn his mind to an examination of the context. When he did this, he concluded that the fact that the case was subject to case management supported his conclusion, and that there was no merit to the plaintiff’s argument that the defendant was acting improperly in resisting the motion. What he did not do was to step back and answer the ultimate question that resides at the core of the exercise: what order would do justice in all of the circumstances. Had he done so, I am confident that he would have come to a different decision.
32In the end, this case involves:
a plaintiff who apparently suffered serious and permanent injury as a result of a motor vehicle accident with the defendant Dodig
a series of lawyers acting for the plaintiff who through their unprofessional conduct, and through no fault of the plaintiff, missed a litigation deadline that was neither occasioned by inadvertence nor adequately explained, and occasioned unconscionable delay in bringing on this motion (I reiterate that I leave aside for the moment the effect of my determination of the bankruptcy stay issue)
a defendant who went bankrupt immediately after being served with the claim, who never notified his insurer of the accident, who was not served personally with the claim and who has never been located by the plaintiff or ING
an insurer that was notified of the accident by the plaintiff, albeit imperfectly, that waited four and a half years to add itself as a party, that was then prepared to proceed to trial, and that had actually served a statement of defence and a jury notice, and that had scheduled discoveries
a complete absence of prejudice to ING
33Despite the importance of moving cases forward expeditiously, these circumstances cry out for relief. I agree with the Master that lack of prejudice is not a determinative factor, but I am equally of the view that the absence of prejudice should not too easily be swept aside in the name of efficiency and finality.
34With this view of the matter in mind, I turn to the standard of review on an appeal from a Master. This was authoritatively described by Ferrier J. in Wellwood v. Ontario, 2009 1476 (ON SCDC), [2009] O.J. No. 235 (Div. Ct.) at para 45, as follows:
On a question law alone, a master's decision is to be reviewed on a standard of correctness. On a question of mixed fact and law, the master's decision should only be interfered with in the presence of palpable and overriding error. The master's decision on a motion to set aside a dismissal order is a discretionary decision of mixed fact and law, and thus, should not be interfered with absent palpable and overriding error. Palpable and overriding error is plain and obvious to see. This standard of review does not entitle the Appellant to a rehearing or to a reweighing of the evidence: Zeitoun v. Economical Insurance Group (2008), 2008 20996 (ON SCDC), 91 O.R. (3d) 131 (Div. Ct.) at paras. 40-41; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 at paras. 3-6.
35In this case, as I have already noted, the Master correctly stated, in accordance with Scaini v. Prochnicki, that a court asked to set aside a registrar’s order dismissing a claim under Rule 77.08 must consider and weigh all relevant factors to determine the order that is just in the circumstances of the particular case, that the analysis must be contextual to permit the court to make an order that is just, and that among the factors to be considered are: an explanation of the litigation delay; inadvertence in missing the deadline; whether the motion was brought promptly; and whether there was prejudice to the defendant. I am of the view that although the Master addressed these factors with care, his failure to address the ultimate question of what order would do justice in all of the circumstances discloses a palpable and overriding error in the exercise of his discretion.
36In case I am wrong, I turn to the second issue: did the provisions of the Bankruptcy and Insolvency Act deprive the registrar of jurisdiction to dismiss this action?
THE EFFECT OF THE STAY UNDER THE BANKRUPTCY AND INSOLVENCY ACT
37The Master stated at the outset of his consideration of this issue that the power of the registrar to dismiss an action under Rule 77.08(1) does not depend on whether an action is stayed. He began his discussion of his reasons for this conclusion by recognizing that the action against the defendant was stayed by operation of the Bankruptcy and Insolvency Act. Although the Master made reference to s. 69.1 of the Act, it appears that the applicable provision is s. 69.3. The error is of no moment, since s. 69.3(1) is, in all relevant respects, identical to s. 69.1(1). Section 69.3(1) provides:
Subject to subsections (1.1) and (2) and sections 69.4 and 69.5, on the bankruptcy of any debtor, no creditor has any remedy against the debtor or the debtor’s property, or shall commence or continue any action, execution or other proceedings, for the recovery of a claim provable in bankruptcy.
38While the word “stay” does not appear in s. 69.3(1), I observe that it does appear in the heading that precedes the section, and that the effect of s. 69.3(1) is commonly referred to as a stay and does, in fact, amount to a stay. It has been said that s. 69.3 creates a stay ipso facto on the filing of a notice of intention or of a proposal or consumer proposal or on bankruptcy by prohibiting a creditor from instituting or continuing to proceed against the person or property of the debtor for a “claim provable in bankruptcy” (see Houlden & Morawetz, Bankruptcy and Insolvency Law of Canada, (Toronto: Carswell, 2009) at p 3-349, citing Re Cohen (1948), 1948 282 (ON CA), 29 C.B.R. 111, aff’d 29 C.B.R. 163 (Ont. C.A.) and 3-354 ). The stay arises by operation of law, and by virtue of s. 69.3(1.1), it continues until the trustee is discharged. Its purpose is to maintain control over the distribution of the assets and property of the bankrupt, and, in turn, reflects one of the primary purposes of the Act, namely to provide for the orderly and fair distribution of the bankrupt’s property. (See R. v. Fitzgibbon, 1990 102 (SCC), [1990] 1 S.C.R. 1005.)
39After referring to s.69.1 of the Act, the Master noted that a stay under the Bankruptcy and Insolvency Act may be lifted pursuant to s. 69.4 of the Act. Section 69.4 of the Act provides for the lifting of a stay by order of a court invested with jurisdiction in bankruptcy, which in the Province of Ontario is the Superior Court of Justice. Section 69.4 provides:
A creditor who is affected by the operation of sections 69 to 69.31 or any other person affected by the operation of section 69.31 may apply to the court for a declaration that those sections no longer operate in respect of that creditor or person, and the court may make such a declaration, subject to any qualifications that the court considers proper, if it is satisfied
(a) that the creditor or person is likely to be materially prejudiced by the continued operation of those sections; or
(b) that it is equitable on other grounds to make such a declaration.
40This test that must be met before a stay is lifted serves the aim of s. 69.3, which I have already mentioned, by preventing any proceeding by one creditor that may give the creditor an advantage over other creditors absent equitable grounds.
41Returning to the judgment, the Master then referred to Rule 11.01, which he said was similar to s. 69.4, and, he continued, like s. 69.4, addresses only the issue of how litigation can proceed once bankruptcy ensues. Rule 11.01 provides:
Where at any stage of a proceeding the interest or liability of a party is transferred or transmitted to another person by assignment, bankruptcy, death or other means, the proceeding shall be stayed with respect to the party whose interest or liability has been transferred or transmitted until an order to continue the proceeding by or against the other person has been obtained.
42An order to continue may be obtained by requisition by any interested party pursuant to Rule 11.02(1). That rule provides:
Where a transfer or transmission of the interest or liability of a party takes place while a proceeding is pending, any interested person may, on filing an affidavit verifying the transfer or transmission of interest or liability, obtain on requisition from the registrar an order to continue (Form 11A), without notice to any other party.
43The Master then stated that Rule 11.01 provides that upon bankruptcy, the plaintiff can move forthwith to obtain an order to continue. This rule, he said, does not refer to the registrar’s power to dismiss.
44It is here that the Master fell into error. His error infected the remainder of his reasons on this issue.
45Despite its superficial similarity, Rule 11.01 is not the equivalent of sections 69.3 and 69.4 of the Bankruptcy and Insolvency Act, nor can it substitute for sections 69.3 and 69.4 in the circumstances here.
46Rule 11.01 provides a mechanism to regulate a proceeding that is before the court when the interest or liability of a party is transferred or transmitted to another person. Section 69.3 is both broader and narrower. It precludes all remedies by a creditor against an insolvent and his or her property, including the commencement or continuation of any proceeding, but it relates only to the rights of creditors against bankrupt debtors.
47What is more, a stay that comes into effect by operation of s. 69.3 cannot be lifted by an order requisitioned under Rule 11.02. Provincial subordinate legislation cannot take precedence over validly enacted federal legislation. Section 69.4 requires an applicant for the lifting of a stay to meet a stringent test designed, as I have said, to advance the aim of the legislation. That requirement cannot be avoided by the use of a rule that makes an order of continuance available by requisition.
48It is true that Rule 11.01 makes reference to a transmission of interest as a result of bankruptcy, and Rule 11.02 is intended to be available in reference to bankruptcy. But the reference to bankruptcy can only be a reference to circumstances where s. 69.1 to 69.4 have no application. The most obvious of these is the case of the bankruptcy of a plaintiff. The Act does not stay actions brought by a bankrupt, but Rule 11.01 does. In that case, an order to proceed under Rule 11.02 would be available, and necessary.
49I am reinforced in my view that a stay that comes into effect by operation of s. 69.3 cannot be lifted by an order requisitioned under Rule 11.02 by what is said on the subject by Holmested and Watson. They state that when a defendant becomes bankrupt, s. 69 of the Bankruptcy Act rather than R. 11 governs continuation of proceedings, but when a plaintiff becomes bankrupt, Rule 11 rather than s. 69 governs the continuation of proceedings. (Holmested & Watson, Ontario Civil Procedure, looseleaf (Toronto: Carswell, 2002) v. 2 at 11-12 to 11-13).
50I have said that this misunderstanding of the applicability of Rule 11.01 infects the remainder of the Master’s reasons. I say this because he resolves the issue of whether or not the Registrar can validly dismiss an action that is stayed as a matter of statutory construction. He embarks on an effort to determine if Rule 77.08(1) and Rule 11.01 can co-exist. He addresses the matter in paras. 133-134 of his judgment, where he states:
133 In order that the two rules can be read together in a consistent and logical manner (a principle of statutory interpretation), the plaintiff remains subject to Rule 77.08(1), but can seek an order to continue under Rule 11.01 in the event of bankruptcy to avoid a dismissal order.
134 An interpretation which gives the registrar jurisdiction to dismiss an action under Rule 77.08(1) when there is a stay against one of the defendants under Rule 11.01 is also consistent with the legislative policy relevant to the registrar's power to dismiss an action. Whether under Rule 77 (case management actions), Rule 76 (simplified procedure actions), or Rule 48.14 (all actions not on the trial list within two years), the intention is that plaintiffs must take steps to ensure that their actions proceed and that they comply with the timelines under the Rules. Whether it is a question of ensuring prompt service of the claim, prompt receipt of the defence, obtaining default judgment, or moving the action towards trial within two years, plaintiffs have to take the steps to comply with the Rules.
51With respect, this case does not raise the question of whether Rule 11.01 and Rule 77.08(1) can be interpreted in a manner that is consistent and logical, far less that advances the policy underlying the registrar’s power to dismiss. Instead, s. 69.4 must be interpreted in a manner that is consistent with the purposes of the Bankruptcy and Insolvency Act, and without reference to the goals of the case management regime in the Rules. Rule 77.08(1), in turn, must simply give way if it is inconsistent with s. 69.4. In other words, it must be interpreted in a manner that avoids the inconsistency, and not vice versa. As a result, for example, contrary to the view of the Master, that fact that there is no exception under Rule 77.08(1) for a bankrupt defendant cannot affect the proper interpretation of s. 69.3. Instead, Rule 77.08(1) must be read in a manner that gives full effect to s. 69.3.
52The Master saw no inconsistency between Rule 77.08(1) on the one hand, and Rule 11.01 on the other. He then implicitly applied his conclusion to s. 96.4. He began by stating, in para. 134, as I have already noted, that under the rules,
… plaintiffs must take steps to ensure that their actions proceed and that they comply with the timelines under the Rules. Whether it is a question of ensuring prompt service of the claim, prompt receipt of the defence, obtaining default judgment, or moving the action towards trial within two years, plaintiffs have to take the steps to comply with the Rules.
53He then continued, at para. 135:
The same principle applies for seeking an order to continue in the context of bankruptcy proceedings. If a defendant becomes bankrupt, a plaintiff can take steps to continue the action and then continue to take steps in the action against the defendant. If the plaintiff fails to do so, and thus fails to comply with deadlines under the Rules, there is no difference why that failure should be treated differently than any other reason why the deadline has not been met, particularly since the Rules provide a mechanism to move the action forward by an order to continue.
54This overlooks the profound difference between obtaining an order lifting a stay under s. 69.4, and requisitioning an order to continue under Rule 11.02(1). It may make sense to oblige a plaintiff in appropriate circumstances to requisition an order to continue under Rule 11.02 or risk dismissal of his or her action, an issue I need not decide, but it does not make sense in reference to an order lifting a stay under s. 69.4. I say this for obvious reasons.
55A plaintiff who seeks an order under s. 69.4 may well fail. As the Court of Appeal observed in Re Ma (2001), 2001 24076 (ON CA), 24 C.B.R. 68 at para. 3 (Ont. C.A.):
… lifting the automatic stay is far from a routine matter. There is an onus on the applicant to establish a basis for the order within the meaning of s. 69.4. As stated in Re Francisco [(1995), 1995 7371 (ON SC), 32 C.B.R. (3rd) 29 (Ont. Bktcy.), aff’d (1996), 1996 10233 (ON CA), 40 C.B.R. (3d) 77 (Ont. C.A.)], the role of the court is to ensure that there are ‘sound reasons, consistent with the scheme of the Bankruptcy and Insolvency Act’ to relieve against the automatic stay.
56In many circumstances the bankruptcy court may conclude that the plaintiff is not likely to be materially prejudiced by the continuation of the stay, and that it is not equitable on any other grounds to set it aside. Extending the Master’s reasoning, in such a case the plaintiff would have failed in the effort to take steps to ensure that the action proceeds, the registrar would be obliged to dismiss the action, and the order dismissing the action would stand.
57What is more, in some circumstances, a responsible plaintiff will know that he or she does not have the grounds to have the stay set aside under s. 69.4. If the Master is correct, that plaintiff would be obliged to act irresponsibly, incur unnecessary expense and waste the court’s time by bringing a motion that is doomed to failure, in the hope that once the bankruptcy ends, he or she can succeed in setting aside the order dismissing the action.
58It seems to me that justice is more reliably achieved by treating an order by the Registrar pursuant to Rule 77.08(1) dismissing an action where a stay pursuant to s. 69.4 of the Bankruptcy and Insolvency Act as a nullity, and setting it aside as of right. The small cost to the efficiency of the court’s processing of claims occasioned by this approach is tolerable.
59For this reason as well, I would allow the appeal.
DISPOSITION
60The appeal is allowed and the order of the Registrar dismissing this action for delay is set aside. If the parties cannot agree on costs, they may make brief written submissions within 14 days of the release of these reasons.
M. Dambrot J.
Released: December 8, 2009
COURT FILE NO.: 218/09
DATE: 20091208
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
MICHELE MICALLEF, RICHARD MICALLEF, CHRISTIAN MICALLEF, MATHEW MICALLEF, by their Litigation Guardian Richard Micallef, MARY DELICATA and PAUL DELICATA
Plaintiffs/Appellants
- and -
FRANK DODIG
Defendant
- and -
ING INSURANCE COMPANY OF CANADA added by Order pursuant to section 258(14) of the Insurance Act, R.S.O. 1990, c.I.8
Third Party/Respondent
REASONS FOR JUDGMENT
DAMBROT J.
Released: December 8, 2009