Bohumil Janicek v. OC Transpo, 2011 ONSC 2601
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Toscano Roccamo J.
BETWEEN:
Bohumil Janicek
Plaintiff (Appellant)
– and –
OC Transpo
Defendant (Respondent)
Self-represented
Matthieu Charron, for the Respondent
HEARD: April 20, 2011
REASONS FOR DECISION
Nature of proceeding
1The Plaintiff, Bohumil Janicek (hereinafter the Plaintiff) appeals from the Order dated June 12, 2009 of Justice C. Tierney dismissing without costs his action issued June 28, 2003 claiming damages of $10,000.00 against the City of Ottawa for injuries which he alleges he sustained on July 28 and August 1, 1997, while a passenger on two different OC Transpo buses.
2The order appealed was on motion brought by the Defendant, OC Transpo (hereinafter OCT) based upon delay on the part of the Plaintiff for: (1) failure to commence his claim within a prescribed limitation period of two years, as required by Section 206(1) of the Highway Traffic Act, R.S.O. 1990, chapter H-8, as amended, and as required by Section 45(1) of the Limitations Act, R.S.O. 1990, chapter L.15, as amended; (2) for failure to advance his claim by proper service upon the Defendant, within the time prescribed in the Rules of the Small Claims Court, nor within the 30-day extension ordered for service of his claim, and (3) for failure to set his action down for trial after a pre-trial conference was held on May 24, 2004.
The facts
3The Plaintiff claims he sustained injuries on July 28, 1997 while a passenger on an OCT bus after signalling his intention to exit. He claimed the driver initially ignored the signal to stop, and then slammed on the brakes, propelling the Plaintiff’s chest against a vertical post causing him injury. On August 1, 1997, his injuries were allegedly exacerbated when on an overcrowded bus, while he was seeking to find a seat, the bus lurched forward, throwing the Plaintiff backwards on a narrow rail attached to the seat. He claims the features of the buses, namely post and rail caused his injuries.
4The Appeal Record includes photocopied photographs of the buses he alleges were involved, and medical records the Plaintiff alleges fully substantiate his claim for damages, and establish wrongdoing on the part of OCT.
Position of the parties
5OCT conceded that it is possible that the Plaintiff properly served the claim by the date of extension of time for service to March, 16, 2004 and may well not have received the registered mail dated January 22, 2008 forewarning of OCT’s plan to move for dismissal of the Action if the Plaintiff did not consent to a dismissal without costs; however, OCT maintains the Plaintiff clearly failed to commence his action within the relevant limitation period, and did not take steps as required by the Rules to set his action down for trial more than four (4) years after the pre-trial.
6The Plaintiff takes the position that Justice Tierney failed to appreciate his claim was not based on negligent operation of the buses, but rather was based on the negligent modification of the buses that created a “pit fall” situation in the buses leading to injury.
7He also asserts that there was no prejudice to OCT based on any delay in failure to set the action down sooner.
Analysis
8OCT correctly sets out the standard of review on this appeal; the applicable standard of review requires a measure of deference to the Court of first instance, and only permits interference in the event of palpable and overriding error in the decision rendering it clearly wrong. This standard applies both to finding of facts and to application of legal principle; Woodheath Development Ltd. v. Goldman (2003), 2003 46735 (ON SCDC), 175 O.A.C. 259 (Div. Ct); appeal to the Court of Appeal dismissed, (2004) 44 C.P.C (5th)101.
9The parties both cite the correct test on a motion to dismiss an action for delay, as follows:
“The principle to be applied on a motion to dismiss for delay is that the action should not be dismissed unless: (1) the default is intentional and contumelious; or (2) the Plaintiff or his or her lawyers are responsible for the inexcusable delay that gives rise to a substantial risk that a fair trial might not now be possible. It is presumed that memories fade over time, and an inordinate delay after the cause of action arose or after the passage of limitation period gives rise to a presumption of prejudice. Where there is a presumption of prejudice, the Defendant need not lead actual evidence of prejudice and the action will be dismissed for delay unless the Plaintiff rebuts the presumption. The presumption of prejudice may be rebutted by evidence that all documentary evidence has been preserved and the issues in the law suit do not depend on the recollection of witnesses or that all necessary witnesses are available with detailed recollection of the events. If the presumption is rebutted, then the action may still be dismissed if the Defendant leads convincing evidence of actual prejudice.”: Armstrong v. McCall et al (2006), 2006 17248 (ON CA), 213 O.A.C. 229 (C.A.) at paragraph 11, citing paragraph 4 in Woodheath Development Ltd. v. Goldman (2001), 2001 28019 (ON SC), 56 O.R. (3d) 658.
10In argument the Plaintiff could not refute the fact that late commencement of his action without prior notice of claim to OCT would have precluded the Defendant from effective investigation of the circumstances of his injuries including interview of drivers and witnesses. Furthermore, with the passage of time the Defendant would have been seriously hampered in investigating whether the Plaintiff’s injuries met the threshold for action prescribed by S. 266 of the Insurance Act¸ R.S.O. 1990, c.I.8. The Plaintiff also could not argue with the fact that, had the bus driver in each instance not operated the bus as he alleges, he would not likely have sustained injury. In other words, operation of the buses was a proximate cause in each instance. Finally, I find that the Plaintiff’s cause of action, as confirmed by production of scant medical records of treatment, on investigation of injury in August 1997, was discoverable by him on July 28 and August 1, 1997 and therefore, the applicable limitation periods for commencement of his action would have begun to run on the dates of injury.
11I find that the pith and substance of the Plaintiff’s cause of action was for personal injury arising from negligent operation of a motor vehicle. There is no meaningful basis in his allegations or in this Appeal Record to support any other cause of action. I, therefore, find the limitation period prescribed by S. 206 of the Highway Traffic Act, R.S.O. 1990, C. H-8 expired by the second anniversary dates of both accidents.
12I must add that the Plaintiff’s production of photographs allegedly taken of the buses in question, coupled with scant records of medical treatment, do not rebut a presumption of prejudice in this matter. These do not serve to establish that all documentary evidence has been preserved, nor that the issues in the lawsuit do not depend on the recollection of witnesses or that all necessary witnesses are available with detailed recollection of the events.
13Moreover, although the Plaintiff excuses his failure to diligently advance the action before and after the pre-trial in 2004 based on unspecified extenuating circumstances in his life, these were not substantiated such that I cannot find that these would be of the kind to relieve him of the requirement to commence his action within the prescribed limitation period and to diligently advance his claim.
14I have considered the reasons of Chadwick J. in Renaud v. OC Transpo and John Doe (1992), 1992 7594 (ON SC), 9 O.R. (3d) 726 (O.C.J.) proffered by the Plaintiff after the hearing of motion, and find that the facts of that case are distinguishable. In Renaud, the Court dealt with a slip and fall case in which operation of the bus was only incidental to injury sustained by the Plaintiff. I am, however, in full agreement with Chadwick J.’s reliance upon the analysis of Osborne J. in Clost v. Colautti Construction Ltd. (1985), 1985 2021 (ON SC), 52 O.R. (2d) 339 at 345 where the leading authorities considered dictate the need to examine the substance of the claim being advanced. In my opinion, the substance of the claim advanced in this case is “for the recovery of damages occasioned by a motor vehicle” and, therefore, captured by S. 206(1) of the Highway Traffic Act.
15I find that in all of the circumstances the Plaintiff has not met the onus upon him to rebut the presumption of prejudice against OCT established on the facts, and accordingly cannot find the Decision of Justice Tierney clearly wrong.
Conclusion
16In the result, I must dismiss this Appeal with costs against the Plaintiff.
17I did not receive a Costs Outline from the plaintiff although he was provided with additional time to do so until April 26, 2011. The Costs Outline submitted by the Defendant persuades me that this is a case for partial indemnity costs, there being no circumstances nor conduct on the part of the Plaintiff inviting substantial indemnity costs. I have also concluded that the matter was not one of significant complexity, noting the submissions of counsel for OCT that the lion’s share of preparation of this Appeal Record and Factum was done by a student at law. That student’s time has been billed at $80.00 per hour. I have reduced the student’s hourly rate payable by the Plaintiff to $60.00 per hour based on consideration of the costs guidelines recommending maximum partial indemnity rates for students at law at $60.00 per hour. I have also reduced the time of counsel for OCT at the hearing to six (6) hours to reflect likely duplication of effort in the preparation of materials on this Appeal. Finally, I have also reduced the claim for fees for counsel’s appearance on this matter, as it took no more than one hour at a partial indemnity rate of $150.00 per hour. Accordingly, I fix costs at $1,650.00 for fees, plus disbursements of $30.00 plus applicable taxes and order these sums forthwith payable by the Plaintiff to OCT.
Toscano Roccamo J.
Released: April 29, 2011
CITATION: Bohumil Janicek v. OC Transpo, 2011 ONSC 2601
COURT FILE NO.: 09-DV-1534
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Madam Justice G. Toscamo Roccamo
BETWEEN:
Bohumil Janicek
Plaintiff (Appellant)
– and –
OC Transpo
Defendant (Respondent)
REASONS FOR JUDGMENT
Toscano Roccamo J.
Released: April 29, 2011