Alexander v. Rosedale United Church, 2011 ONSC 785
CITATION: Alexander v. Rosedale United Church, 2011 ONSC 785
DIVISIONAL COURT FILE NO.: 397/10
DATE: 20110203
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
THE REV. ARLEIGH ALEXANDER
Plaintiff/Appellant
– and –
ROSEDALE UNITED CHURCH and TORONTO SOUTH PRESBYTERY of THE UNITED CHURCH OF CANADA and TORONTO CONFERENCE of THE UNITED CHURCH OF CANADA and THE UNITED CHURCH OF CANADA
Defendants/Respondents
Ernest J. Guiste, for the Appellant
Alexander D. Pettingill, for the Respondents
HEARD AT TORONTO: January 31, 2011
Reasons for Decision
LEDERER J.:
[1] At the outset of the hearing of this motion, counsel for the plaintiff advised of his client’s concern that many members of the bench were associated with the defendant, Rosedale United Church. I was asked if I had such an association. I was married there thirty-four years ago, but I have never had any association with the church. Counsel did not object to my proceeding. I mention this because counsel for the defendants asked me to and because, after the hearing commenced, as I asked questions of counsel for the plaintiff, he suggested he might wish to re-consider his agreement that I proceed.
[2] This is an appeal from the order of Master Glustein, in which he dismissed the action due to delay.
[3] Counsel for the plaintiff submitted that there was a fundamental error in the decision of the Master. In making this submission, he relied on sentences which appear early in the reasons being appealed. They say:
For the reasons discussed below, I grant the motion to dismiss for delay on the basis of Alexander's failure to restore the action to the trial list within 30 days from September 11, 2006. Consequently, I do not consider the undertakings issue, and my reasons below address only the motion to dismiss for delay for the failure of Alexander to restore the actions of the trial list within 30 days from September 11, 2006.
[4] It was the position of counsel for the plaintiff that these sentences indicate that the Master evaluated the delay from September 11, 2006 and did not take into account intervening factors which, as counsel sees it, recognize that additional time was required.
[5] The standard of review for an appeal from a decision of a Master has been commented on as follows:
…there is no reasoned basis to distinguish between the decision of a Master and that of a judge for the purpose of the standard of review on appeal.
(Zeitoun v. Economical Insurance Group, 2009 ONCA 415, [2009] O.J. No. 2003, at para. 1 (C.A.))
[6] The same Court has more recently defined the standard of review, in circumstances such as this, as:
…on questions of fact and mixed fact and law, deference applies and the role of the reviewing court is limited. An appellate court cannot substitute its interpretation of the facts or reweigh the evidence simply because it takes a different view of the evidence from that of the master. On questions of law, the correctness standard applies.
(Wellwood v. Ontario (Provincial Police), 2010 ONCA 386, [2010] O.J. No. 2225, at para. 28 (C.A.))
[7] The plaintiff alleges that she was employed by the defendant, Rosedale United Church, on a part-time basis from September 1, 1997 to July 31, 2000, and in a full-time capacity from July 31, 2000. She was terminated as of July 31, 2001. The plaintiff initiated this action for wrongful dismissal, by Statement of Claim, on November 20, 2002.
[8] On September 11, 2006, on consent, an order was obtained vacating the trial date and striking the action from the trial list.
[9] From the date the action was struck off the list, there is no evidence of any steps taken in the action until the defendants brought a motion to dismiss for delay. It was heard by Master Egan on February 5, 2007. In response to the motion, the plaintiff filed affidavit evidence which fully addressed her medical condition. It had caused her to withdraw from her friends and life in Toronto. As a result, Master Egan held that the delay was excusable. Master Egan ordered that the plaintiff serve an amended Statement of Claim by February 21, 2007. An amended claim was delivered on February 13, 2007. The proposed changes included adding a senior minister from the church as a defendant and sought damages for sexual harassment, intentional infliction of mental suffering and inducement of breach of contract. The defendants did not consent to the changes being made. No motion was brought to amend the pleadings until March of 2008, despite the requests of the defendants’ solicitor that this be done. An order amending the Statement of Claim was made. The senior minister was not added as a party, but the allegations of sexual harassment remained to support claims of negligence made against the church.
[10] These were the intervening factors, counsel submitted, that were ignored by the Master in his decision.
[11] In particular, counsel for the plaintiff drew the court's attention to the following statement contained within the order of Master Egan, dated February 5, 2007:
An order can be sought – probably on consent – to restore the actions of the trial list once the parties no longer need to bring any discovery related motions and an extension to do so is given accordingly.
[12] Counsel for the plaintiff submitted that, by this statement, Master Egan provided an extension in the time allowed to restore the action to the trial list. According to counsel, this is a principal factor the Master ignored when he measured the delay from September 11, 2006. As counsel sees it, this statement demonstrated the recognition by Master Egan that more time would be required.
[13] In making this submission, counsel relied on Armstrong v. McCall, 2006 17248 (ON CA), [2006] O.J. No. 2055 as demonstrating that a failure to take into account intervening events was a fatal error to the determination made by the Master. Counsel for the plaintiff was of a view that, given the statement made by Master Egan, only the time since her order was made should be accounted for in evaluating the delay. Counsel for the defendants, the responding parties, disagreed. It is his submission that the case does not stand for the principle as enunciated by counsel for the plaintiff. Counsel for the defendants said it was open to the Master to consider the full length of any delay and not just the delay beginning with the order of Master Egan. In any event, the Master had given full consideration to that decision and the intervening factors present in this case.
[14] In Armstrong v. McCall, supra, the plaintiff sued doctors for malpractice. The action was commenced during the month of August 1998. On March 7, 2003, the physicians brought a motion to dismiss action for delay. It was denied by the judge. On September 23, 2003, a second motion to dismiss the action for delay was brought. It, too, was dismissed. A motion seeking leave to appeal the decision in the second motion also failed. On August 2, 2005, a third motion to dismiss the action of the plaintiffs for delay was argued. It was granted. The action was dismissed.
[15] The decision of the Court of Appeal overturned the dismissal. The question it asked was: What was it that worsened the position of the defendants from the time the leave to appeal of the second refusal was dismissed? The court found there was nothing. By that time, the action had been set down for trial and the trial co-ordinator was awaiting the co-operation of counsel for the doctors to provide available dates for the trial.
[16] The court did not hold, as counsel for the plaintiff suggested, that the case requires a delay to be measured from the intervening order as opposed to the commencement of the action. Rather, the Court said:
While it was not wrong for the motion judge to consider ‘the whole course’ of the action in determining whether it should have been dismissed, as the appellant contended, given that the respondents failed to establish a fatal delay before Sachs J. and B. Wright J., she should have focused on the delay subsequent to the decision of O’Driscoll J. The question which the court must address is whether delay that is properly described as inordinate and inexcusable has given rise to a substantial risk that a fair trial for the defendant will not be possible.
[17] The case noted that the prejudice, to which the Court of Appeal referred, could be presumed. The Court quoted the decision of the Divisional Court in an appeal from a Master in Woodheath Developments Limited v. Goldman (2003), 2003 46735 (ON SCDC), 66 O.R. (3d) 731 at 732:
Specifically, I accept as correct the principles applicable to motions to dismiss for delay derived by the learned Master from the case law and accurately summarized in the headnote at (2001), 2001 28019 (ON SC), 56 O.R. (3d) 658 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 be possible. It is presumed that memories fade over time, and then inordinate delay after the cause of action arose or after the passage of limitation period [sic] 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.
[18] The decision of the Master in the case I am asked to decide clearly demonstrates he was aware of these principles (see: Alexander v. Rosedale United Church, 2010 ONSC 4224, at para. 57(b), (d), (e), (f), and (h)).
[19] In particular, the Master noted that he was entitled to consider all of the delay in the action and not just the time from the date the action was struck off the list. The court was entitled to consider all of the conduct of the litigation up to the date of the motion (see: Alexander v. Rosedale United Church, supra, at paras. 63 and 64).
[20] The Master reviewed the entire history and concluded that the delay was inordinate (see: Alexander v. Rosedale United Church, supra, at para. 62).
[21] In respect of the point that the full period of delay could be considered, the Court of Appeal, in Armstrong v. McCall, supra, quoted Christie Corp. v. Lee (1999), 29 C.P.C. (4th) 181 (Ont. C.A.) as follows:
In some cases, under Rule 24, it will be appropriate to consider the time elapsed from the time an action was commenced in considering the reasonableness of the delay relied on by the defendant. In the circumstances of this case, however, it is our view that the motions judge erred in principle and placing undue weight on this factor.
[22] In this case, it cannot be said that the Master applied undue weight to the period following the initiation of the action. He observed:
In any event, even if I only consider the time period from September 11, 2006, the date the action was struck from the trial list (or even from Master Egan's order on February 5, 2007), up to the present motion (which I do not find to be an appropriate approach for the reasons discussed above), this further delay of 3 1/2 to 4 years would be inordinate on its own, as very little has happened in the action since the 2006-07 time period.
(Alexander v. Rosedale United Church, supra, at para. 66)
[23] The Master, having found that the delay was inordinate, went on to determine that it was inexcusable. In doing so, he considered the evidence as to the medical condition of the plaintiff. He found that he did not have evidence that established that the delay was excusable for medical reasons (see: Alexander v. Rosedale United Church, supra, at paras. 71-76). The assertion that it would be necessary to conduct some discovery on the amended pleadings which was proffered as demonstrating that the delay in setting the action down for trial was excusable was found by the Master to be "contrived and not supported by the evidence" (see: Alexander v. Rosedale United Church, supra, at paras. 77-79).
[24] Finally, counsel for the defendants pointed out that the prejudice that could be presumed was, in this case, demonstrably present. The senior minister against whom the allegations have been made has lived under their cloud since the first draft of the proposed amended Statement of Claim was presented on February 13, 2007. Given these allegations, he will be the principal witness called on behalf of the defendants. He is now eighty-one years old, an age when memory loss is a factor in many lives. Unlike Armstrong v. McCall, supra, the matter has not been set down for trial. The case is not waiting for counsel to provide the dates they are available for trial. Consistent with the requirements outlined by the Court of Appeal in Armstrong v. McCall, supra, the Master considered what was before him and found that the plaintiff did not rebut the presumption of prejudice created by the passage of time (see: Alexander v. Rosedale United Church, supra, at paras. 85-96).
[25] Finally, I add that counsel for the plaintiff misreads the Order of Master Egan made on February 5, 2007. It does not, as he suggested, extend the time for restoring the action to the trial list. Rather, it does nothing more than say that an order to that effect can be requested when there are no more discovery-related motions to be brought. To do otherwise would limit the discretion of any judicial officer to whom the request was made.
[26] To my mind, this all demonstrates that the Master fully considered the issue of whether and how to account for the full history of the conduct of the action and properly balanced the concerns it raised.
[27] There is no error of law made by the Master. His reasons are comprehensive and fully review the relevant history. He properly applied the law to that history.
[28] The appeal is dismissed.
[29] The parties requested that they be permitted to make submissions as to costs in writing once the decision had been released. Accordingly, if the parties are unable to agree, I will consider submissions as to costs made in writing on the following terms:
On behalf of the defendants, no later than fifteen days after the release of these reasons. Such submissions are to be no longer than three pages double-spaced, excluding any Cost Outline or Bill of Costs and case law that may be included.
On behalf of the plaintiff, no later than ten days thereafter. Such submissions are to be no longer than three pages double-spaced, excluding any Cost Outline or Bill of Costs and case law that may be included.
If necessary, submissions, on behalf of the defendants, in reply to those of the plaintiff, no later than five days thereafter. Such submissions are to be no longer than one page double-spaced.
LEDERER J.
Released: 20110203
CITATION: Alexander v. Rosedale United Church, 2011 ONSC 785
DIVISIONAL COURT FILE NO.: 397/10
DATE: 20110203
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
THE REV. ARLEIGH ALEXANDER
Plaintiff/Appellant
– and –
ROSEDALE UNITED CHURCH and TORONTO SOUTH PRESBYTERY of THE UNITED CHURCH OF CANADA and TORONTO CONFERENCE of THE UNITED CHURCH OF CANADA and THE UNITED CHURCH OF CANADA
Defendants/Respondents
JUDGMENT
LEDERER J.
Released: 20110203