Court File and Parties
Citation: Dang v. Nguyen, 2014 ONSC 7150 Court File No.: 293/14 Date: 2014-12-10 Superior Court of Justice (Divisional Court) - Ontario
Re: Hoa Dang, Plaintiff/Appellant And: Phuong Xuan Nguyen, Defendant/Respondent
Before: Marrocco A.C.J.S.C.
Counsel: Vic Purewal, for the Plaintiff/Appellant Martin Tiidus, for the Defendant/Respondent
Heard: December 3, 2014
Endorsement
[1] The plaintiff appeals pursuant to section 19(1)(c) of the Courts of Justice Act from a final order of the Master. Pursuant to section 21(2) of the Courts of Justice Act, this appeal is heard and determined by one judge of the Divisional Court.
[2] The plaintiff suffered serious and lasting personal injuries in a motor vehicle accident which occurred on November 22, 2009. The plaintiff was a rear seat passenger in a motor vehicle driven by the defendant. The defendant for no apparent reason drove into the rear end of another motor vehicle which was stopped at an intersection.
[3] On November 14, 2011 the plaintiff on her own behalf issued a statement of claim and on December 15, 2011 the defendant was served with the statement of claim. Thereafter nothing was done until the plaintiff retained her current counsel, the Grillone Law Firm, on October 7, 2013.
[4] Unbeknownst to the plaintiff, her claim was dismissed by the Registrar on July 10, 2012. The Registrar’s order dismissed the plaintiff’s claim as abandoned pursuant to Rule 48.15(1). Although not necessary for my decision, it is part of the context in which this matter arises that Rule 48.15 (1) has been repealed effective January 1, 2015.
[5] On October 15, 2013 the defendant’s insurer, State Farm Insurance Company, was sent notice of the fact that the Grillone Law firm had been retained. On October 25, 2013 the Grillone Law firm was advised that the defendant had retained counsel. On November 4, 2013 the Grillone Law firm was served with a Statement of Defence. On November 21, 2013 Examinations for Discovery were scheduled for May 2, 2014.
[6] On December 4, 2013 counsel for the defendant wrote to the Grillone Law firm advising that this matter had been dismissed and unilaterally cancelled the Examinations for Discovery; counsel also advised that it would oppose a motion to set aside the Dismissal Order.
[7] Counsel for the plaintiff swore an affidavit in support of the motion to set aside in which he stated that the plaintiff had the intention to proceed with the matter and frequently contacted his office to inquire about the status of her claim. Counsel indicated that he had numerous updated medical records of the plaintiff. Counsel deposed that the witnesses required for the trial were available.
[8] The plaintiff’s motion to set aside Registrar’s order was dismissed on May 21, 2014.
[9] The Master noted that the limitation period had expired by the time he was hearing the motion to set aside.
[10] Subrule 48.15 (1) provides as follows:
The registrar shall make an order dismissing an action as abandoned if the following conditions are satisfied, unless the court orders otherwise:
More than 180 days have passed since the date the originating process was issued.
None of the following has been filed:
i. A statement of defence.
ii. A notice of intent to defend.
iii. A notice of motion in response to an action, other than a motion challenging the court’s jurisdiction.
The action has not been disposed of by final order or judgment.
The action has not been set down for trial.
The registrar has given 45 days notice in Form 48E that the action will be dismissed as abandoned. O. Reg. 438/08, s. 46; O. Reg. 394/09, s. 21 (1).
[11] The motion to set aside the Registrar’s order was brought pursuant to Rule 37.14(1).
[12] The Master considered the four well-established factors typically referred to in motions of this type: an explanation of the litigation delay, inadvertence in missing the deadline, whether the motion to set aside was promptly brought and prejudice or lack of prejudice to the defendant. This test was set out in Reid v. Dow Corning Corp, [2001] O.J. No. 2365, and approved by the Ontario Court of Appeal in Scaini v. Prochnicki, 2007 ONCA 63.
[13] The Master indicated that an affidavit of the plaintiff was required to explain the delay. The plaintiff did not file an affidavit. Counsel for the plaintiff filed an affidavit and indicated that the Dismissal Order occurred “unbeknownst to the plaintiff.” The Master ruled that this statement had “no evidentiary value.”
[14] Rule 39.01(4) provides that an affidavit for use on a motion may contain statements of the deponent’s information and belief. While it is true that Mr. Grillone failed to state the source of his belief, it is obvious that the information had to come from his client. Accordingly, Mr. Grillone’s statement that the Dismissal Order was “unbeknownst to the plaintiff” was capable of proving that fact. It was open to the Master to attach little or no weight to Mr. Grillone’s assertion. It was also open to the Master to accept Mr. Grillone’s assertion as proof of the fact that his client did not know about the Dismissal Order. It was a palpable and overriding error to conclude without reasons that Mr. Grillone’s uncontradicted and unchallenged affidavit evidence had “no evidentiary value.”
[15] In deciding whether to set aside the order of the Registrar, the Master was required to consider whether the Registrar could properly conclude that the conditions in Subrule 48.15(1) had been satisfied. One of the conditions in the Subrule is that the Registrar give the applicant 45 days notice in the appropriate form (Form 48E) of the Registrar’s intention to dismiss the action as abandoned. There was no evidence before the Master which was capable of proving that the Registrar could properly be satisfied that this condition had been met. In addition, if there ever was a Form 48E, it is not part of this record. It was a palpable and overriding error to find that the Registrar properly concluded this condition was satisfied in the absence of such evidence.
[16] In Habib v. Mucaj, 2012 ONCA 880, at para. 5, the Court of Appeal remarked that the prejudice that would be suffered by the defendant on a motion to set aside a dismissal for delay under r. 48.15(1) must be significant and arise out of the delay. The Master found that the prejudice in this case arises from the fact that the limitation period has expired. The limitation period expired on November 22, 2011 which was eight days after the plaintiff issued her claim. The plaintiff’s delay began on December 15, 2011 immediately after the defendant was served with the statement of claim and continued until the Grillone firm was retained on October 7, 2013. It cannot be said that the expiration of the limitation period arose during this delay.
[17] If I am wrong and the expiration of the limitation arose during the delay caused by the plaintiff, I must respectfully disagree with the Master’s conclusion concerning prejudice.
[18] It is clear from the Master’s reasons that he attached no significance to the fact that the defendant responded to the claim after the defendant’s insurer was notified that the plaintiff had appointed counsel. The weight to be attributed to that evidence was entirely for the Master.
[19] However, the Master also stated that the plaintiff had not advised whether she sought medical treatment, whether she searched for and obtained medical evidence, what witnesses concerning liability and damages were still available and whether their memories were intact. It is true that the plaintiff did not give this evidence. However, Mr. Grillone did provide an affidavit in support of the motion before the Master. In his affidavit Mr. Grillone stated that both the witnesses to the accident and up-to-date medical records were available. Mr. Grillone was capable of knowing those facts. Mr. Grillone was not cross-examined.
[20] It is true, as the Master observed, that five years had passed since the accident. However it is also true that the plaintiff was a passenger in the back seat of a motor vehicle which rear-ended another motor vehicle for no apparent reason. Liability is unlikely an issue; the relevant evidence is likely medical evidence concerning the plaintiff’s injuries and Mr. Grillone’s affidavit stated that up-to-date medical evidence was available.
[21] The weight to be attached to Mr. Grillone’s evidence was for the Master. However, it is a palpable and overriding error to conclude without giving reasons that Mr. Grillone’s uncontradicted and unchallenged affidavit evidence was not capable of proving that no prejudice arose from the delay insofar as witnesses and medical evidence were concerned.
[22] Accordingly this appeal is allowed. The decision of the Master dismissing the plaintiff’s motion to set aside is quashed. This court has the power to make the order below that ought to have been made: Hudon v. Colliers Macaulay Nicolls Inc., [2001] O.J. No. 1588 (Ont. Div. Ct.), at para 16; Pearce v. UPI Inc., [2006] O.J. No. 1836, at para. 10; 1286110 Ontario Ltd. v. College Manning Professional Centre Inc. (2005), 78 O.R. (3d) 463 (Ont. Div. Ct.), at para. 18. As a result there will be an order setting the Registrar’s order dismissing the plaintiff’s action as abandoned. The plaintiff is entitled to costs in the amount of $2,000 inclusive of disbursements and applicable taxes.
MARROCCO A.C.J.S.C.
Date: 20141210