ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Hambly, Murray, and Ray, JJ.
B E T W E E N:
BONNIE BERG Plaintiff (Respondent)
- and -
STEVEN WAYNE ROBBINS and JOAN MARY ROBBINS Defendants (Appellants)
Marinus L. Lamers for the Respondent Bonnie Berg
A. Paul Parlee, for the Appellants Steven Wayne Robbins and Joan Mary Robbins;
HEARD AT LONDON: November 23, 2009
RAY, J:
1This is an appeal from the order of Little J. dated January 30, 2009 dismissing the defendants’ motion for an order seeking to dismiss the plaintiff’s action on the ground of delay. Being an interlocutory order, leave was sought and obtained from Granger J. dated June 19, 2009 on the ground that he doubted the correctness of Little J.'s decision.
2The delay from the cause of the initial cause of action to the date of the motion to dismiss for delay is 11 years, and from the date the Trial Record was passed is 9 years. It is now 13 years from the issuance of the Statement of Claim and according to both parties the action is still not ready for trial. There is no evidence from the plaintiff as to the reasons for the delay.
Standard of Review
3The decision of Housen v. Nikolaison, 2002 SCC 33, [2002], 2 S.C.R. 235 [Housen], confirms that the standard of review for a decision of a trial judge or a motions court on a question of law is that of correctness, and on a question of fact is palpable and overriding error. On a question of mixed fact and law there is a more stringent standard. The court is to determine whether the question of mixed fact and law is closer to fact or if there is an extricable principle of law. If there is an extricable principle then the standard of review is one of correctness.
4Judicial discretion ought not to be interfered with unless it is apparent that the judge applied erroneous principles of law that rendered the result clearly wrong. For the Appellate Court to interfere, the judge must have acted on a wrong principle (Cosyns v. Canada (AG),(1992), 7 O.R. (3rd) 641 (SCC)).
5The defendants contend that the standard of review is correctness, and that this analysis involved matters of law. The plaintiff argues that the motions judge was exercising a discretion, requiring deference.
6We conclude that whether the standard is one of correctness based on a question of law or whether one of determining whether the result was clearly wrong on the basis of wrong principles amounts to the same thing.
The Facts
7This action was launched August 1, 1996, claiming damages in the amount of $300,000 as a result of an incident March 16, 1996 when the defendants’ dog had entered onto the plaintiff’s property, and had attacked her, her thirteen horses, one dog, and four cats.
8The defendants defended, and were examined for discovery February 18, 1997. The examination of the plaintiff commenced that day, and at its continuation August 13, 1997, the plaintiff disclosed additional dog attacks that allegedly occurred between September 6, 1996 and July 4, 1997. The Statement of Claim was amended January 14, 1998. A resumption date for discoveries on June 1, 1999 was further adjourned as undertakings of the plaintiff were still outstanding. In the meantime, the defendants had passed the trial record June 5, 1998 (It was defective in a number of respects. The plaintiff filed a further trial record in July, 2006. It too was defective in a number of respects requiring a further trial record, which has not yet been completed). On December 15, 1998, Killeen J. ordered the plaintiff to comply with undertakings and awarded costs of the motion. A further continuation of the plaintiff’s examination for discovery took place on June 1, 1999. Additional undertakings were given and it was adjourned.
9Following an appearance in assignment court on October 3, 2006, the defendants launched a motion returnable February 27, 2007 to dismiss the plaintiff’s action for delay.
10This was followed by a flurry of activity from the plaintiff which included delivery of considerable documentary evidence regarding damages, and draft expert reports dated September 10, 2002 through December 17, 2002. The plaintiff later learned that the expert had died sometime after December 17, 2002. No steps have been taken to find a replacement expert. The plaintiff was admittedly not ready for trial then, and is not ready for trial now.
The reasons of the motions court judge
11There was no evidence before the motions judge from the plaintiff as to the reasons for the delay. He correctly found that no real reason was provided for the delay. The defendants’ evidence was that they had no notes of the events of March 16, 1996, nor the later events through to July 4, 1997. An intended witness, who knew the dog, had a stroke in 2003 and is unavailable. The Plaintiff countered that proceedings before the Ontario Court of Justice in November, 1996 recorded the evidence of the defendants as well as the witness – all of which is available.
12The motions judge held that a delay of some 8 years by the plaintiff in prosecuting an action did not merit dismissal without proof of prejudice by the defendants, and found that the defendants had not met the burden.
The Analysis
13Any delay in the prosecution of an action by a plaintiff requires an explanation. The onus rests with the plaintiff to show that the delay was not intentional. (Gigliotti v. Fantino, [2009] O.J. No. 1567, 250 O.A.C. 57, Div Ct)). In the absence of an explanation from the plaintiff for the delay, it is to be presumed that the delay was intentional, and that would appear to be the end of the matter
14However, whether, the delay is 8 years, 9 years, or 11 years, the fact remains that it is now 11 years since the events described in the Statement of Claim. That length of time presumes prejudice. The onus is upon the plaintiff to rebut the presumption of prejudice by showing that documents have been preserved, and that the issues in dispute do not require the recollection of witnesses, or that necessary witnesses are available with detailed recollection of events. Even if the plaintiff rebuts the presumption, the action may still be dismissed if the defendants lead evidence of actual prejudice.(Woodheath Developments Ltd. v. Goldman, [2003] O.J. No. 3440, leave to appeal ref’d [2004] O.J. No. 1021 (C.A.) at paras. 4 and 5).
15The plaintiff says that the evidence of the plaintiff and another witness was recorded during proceedings before the Ontario Court of Justice in 1996 (which only dealt with one of the dog attacks), and that, absent expert evidence which he intends to marshal, the balance of the case is documentary. The claim, apparently, is for some $650,000 arising out of alleged dog attacks to the plaintiff, her 13 horses, her 4 dogs and cat in 1996 and 1997. This is contained in a written summary first provided to the defendants in February, 2007. No witness statements, will-say statements, or notes were referenced. The defendants were not examined for discovery regarding events that allegedly occurred in September 1996, April 1997, June 1997 and July 1997. The plaintiff learned that an expert hired in 2002 to address the plaintiff’s damages had died, but no steps have been taken to identify a new expert. Prejudice to the defendants is to be viewed through the lens of the availability of witnesses, witnesses’ recollection, documentary evidence, and preserved evidence (Gigliotti, supra, para. 11.) The plaintiff has failed to meet the onus. It would be unfair for the defendants to be compelled to prepare for and deal with a trial, which we note still requires considerable work before it can be ready.
16The defendants contend that they have suffered actual prejudice. Their recollections are not good, and a witness has since had a stroke and is unreliable. Only one of the incidents claimed in the plaintiff’s claim was addressed in the transcribed proceedings. We note that that was 13 years ago. Any independent recollections would be very doubtful.
Conclusions
17In our view the plaintiff has not met the burden to provide an explanation for the delay, and has not rebutted the presumption of prejudice. Therefore the appeal is allowed, and the plaintiffs claim is dismissed for delay.
Costs
18The defendants are entitled to their costs of the appeal fixed at $8,000.00.
19They are also entitled to their costs of the leave motion, and the action. If the parties cannot agree, then written submissions may be made within 14 days by the defendants, and 20 days by the plaintiff, to this court at London.
“Mr. Justice Hambly”
HAMBLY J
“Mr. Justice Murray”
MURRAY J.
“Mr. Justice Ray”
RAY J.
RELEASED: November 26, 2009
COURT FILE NO.: 1777-09
DATE: November 26, 2009
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
HAMBLY, MURRAY and RAY JJ.
B E T W E E N:
BONNIE BERG Plaintiffs (Respondents)
- and -
STEVEN WAYNE ROBBINS and JOAN MARY ROBBINS Defendants (Appellants)
REASONS FOR JUDGMENT
RELEASED: November 26, 2009