Malik v. 1645156 Ontario Ltd., Markham Avenue Taxi & Limousine, 2012 ONSC 2887
DIVISIONAL COURT FILE NO.: 384/11
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JENNINGS J.
BETWEEN:
MUHAMMAD G. MALIK Appellant (Plaintiff)
– and –
1645156 ONTARIO LTD. c.o.b. as MARKHAM AVENUE TAXI & LIMOUSINE and MARKHAM & AVENUE TAXI-LIMO, and AKRAM ABOUCHARAF and ANWAR EID Respondents (Defendants)
Shahzad Siddiqui, for the Appellant (Plaintiff)
Colin Still, for the Respondent, (Defendant), Markham Avenue Taxi
HEARD at Toronto: May 15, 2012
JENNINGS J. (ORALLY)
1The plaintiff appeals the order of Master Sproat dated July 22, 2011, dismissing this action for delay pursuant to the provisions of Rule 48.14(13)(b).
2The standard of review of the Master’s decision is the same as that of a judge – correctness on questions of law, palpable and overriding error on findings of fact. See the decision of this Court in Zeitoun v. Economical Insurance [2008] 2096.
3The Master correctly stated the law – the onus is on the plaintiff to show cause why the action ought to be permitted to proceed by explaining the reasons for the delay and demonstrating no prejudice to the defendant. She understood she was to take a contextual approach to her consideration of the issues so as to ensure a just approach.
4The Master found lengthy delays. There was ample evidence to support that finding; the action had been outstanding for 2¾ years prior to the status hearing and as the Master found, had not progressed beyond pleadings.
5The Master found the explanation for the delay to be wholly lacking in substance. The only reason put forward to explain the delay was that the plaintiff wished to have criminal charges of sexual assault that had been brought against him disposed of prior to deciding whether or not to proceed with this action.
6The difficulty with that explanation, as the Master found, was that the charges arose out of an allegation of assault that occurred on August 29, 2007. In his pleadings in this action, the plaintiff alleges that the defamation complained of arose because of comments made about an alleged assault occurring on September 13, 2007.
7The Master found on the evidence that the second alleged assault was a discrete incident which apparently did not result in criminal charges, and had nothing to do with the August 29, 2007 incident. That finding was inevitable on the basis of the pleadings and the evidence before the Master.
8Accordingly, the Master’s rejection of the excuse for the delay was founded on the evidence that she heard.
9With respect to prejudice, the onus was on the plaintiff to disprove prejudice to the defendants. The Master carefully considered this issue on page 5 of her reasons (page 18 of the Record) and found not only deemed but actual prejudice. The evidence to support that finding was before the Master in the affidavits filed.
10The appellant submits that the Hudon line of authority would permit me to hear this matter de novo. I reject that submission. De novo appeals were put to rest in Zeitoun (see para. 26) to which I previously referred, when the Housen v. Nikolaisen standard of review was adopted for appeals from the Master.
11At root, the appellant’s main argument seems to be that there is a rule that dismissal orders are not made on first status hearings. I reject that submission. Firstly, it is contrary to the plain language of the Rule. Secondly, it is contrary to the main stream of case law, which I prefer to the dicta in Clements v. Greenlaw, 2009 33028 (ON SCDC), 2009 O.J. 2688. See, for example, Khan v. Sun Life Assurance Company of Canada, 2011 ONSC 455 aff’d 2011, ONCA 650, Oberding v. Sun Life Financial, 2010 ONSC 3305 (Div. Ct.) and Canadian Champian Auto Services v. Petro-Canada, 2011, ONSC 6794, paras. 81-83.
12The Master had a discretion to exercise in determining whether to permit the action to continue or to dismiss it for delay. She applied the law correctly to the facts she found. The exercise of her discretion is entitled to deference.
13I should add that the Master reserved her relatively brief reasons for decision for almost a year. That cannot be condoned, but that additional delay does not, in my opinion affect the quality of the decision she delivered.
14The appeal is dismissed.
15In default of agreement on costs, brief submissions not to exceed three pages, plus any written offers may be filed with the Court within ten days of the release of these reasons.
JENNINGS J.
Date of Reasons for Judgment: May 15, 2012
Date of Release: May 18, 2012
CITATION: Malik v. 1645156 Ontario Ltd., Markham Avenue Taxi & Limousine, 2012 ONSC 2887
DIVISIONAL COURT FILE NO.: 384/11
DATE: 20120515
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JENNINGS J.
BETWEEN:
MUHAMMAD G. MALIK Appellant (Plaintiff)
– and –
1645156 ONTARIO LTD. c.o.b. as MARKHAM AVENUE TAXI & LIMOUSINE and MARKHAM & AVENUE TAXI-LIMO, and AKRAM ABOUCHARAF and ANWAR EID Respondents (Defendants)
ORAL REASONS FOR JUDGMENT
JENNINGS J.
Date of Reasons for Judgment: May 15, 2012
Date of Release: May 18, 2012