CITATION: Brampton Hardwood Floors Ltd. v. Kingsbury Technology Canada Inc., Gouskov, 2015 ONSC 2305
DIVISIONAL COURT FILE NO.: 505/14 DATE: 20150409
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
BRAMPTON HARDWOOD FLOORS LTD.
Plaintiff
(Appellant)
– and –
KINGSBURY TECHNOLOGY (“CANADA”) INC., ANDREI GOUSKOV, VLADIMIR GOUSKOV and SERGEY REBROV
Defendants
(Respondents)
Rocco A. Ruso, for the Plaintiff (Appellant)
Fabio M. Soccol, for the Defendants (Respondents)
HEARD at Toronto: April 9, 2015
HARVISON YOUNG J. (ORALLY)
[1] Master Abrams dismissed the plaintiff’s action for delay at a Status Hearing pursuant to Rule 48.14. The action had been started in 2011. The Master summarized what the plaintiff had done since that time:
To date, all that has been done to advance the litigation by the plaintiff is delivery of a statement of claim in 2011; delivery of a notice of change of lawyers by its present counsel, on its behalf; the making of a request for an extension of time to file a reply (with no reply having been provided to the court for its consideration, even as of the date of the show cause hearing); the making of a promise to serve an affidavit of documents (with no affidavit of documents having been served, even at the date of the show cause hearing); and the service of a trial record, after a status notice was received by the plaintiff’s lawyers.
Standard of Review
[2] A dismissal of an action at a Status Hearing under Rule 48.14(13) is a discretionary order and is entitled to deference on appeal. It may only be interfered with on the basis of an error of law or principle or on the basis of palpable and overriding error of fact. Where the Master has exercised his or her discretion, the Court on appeal must determine whether the correct legal principles were applied and whether the Master misapprehended the evidence such that there is a palpable and overriding error. It is not the function of the Court on appeal to weigh the various factors and come to its own conclusion as to how to exercise an available discretion: see Zeitoun v. The Economical Insurance Group (2008), 91 O.R. (3d) (Div. Ct.) and 1196158 Ontario Inc. v. 6274013 Canada Ltd. 2012 ONCA 544, 2012 CarswellOnt. 10154 (OCA) at para. 16.
Test on a Status Hearing
[3] The plaintiff bears the burden to show cause why this hearing should not be dismissed for delay. It is a two-part test and the plaintiff bears the onus in respect of both aspects:
(a) the plaintiff must demonstrate that there is an acceptable explanation for the litigation delay; and
(b) the plaintiff must demonstrate that if the action is allowed to proceed, the defendant would suffer no non-compensable prejudice.
[4] The test is conjunctive, meaning that the plaintiff must satisfy the Court with respect to both (a) and (b).
[5] There are a number of recent decisions with respect to this test but the most recent and leading Court of Appeal decision is Faris v. Eftimovski 2013 CarswellOnt 7172 at para. 32.
[6] In the case at bar, the Master clearly applied the two-part test. She found first that the evidence filed by the plaintiff on the motion did not offer any explanation for the delay. She stated at para. 3 of her reasons:
No explanation has been proffered for the plaintiff`s failure to deliver a reply, serve an affidavit of documents, schedule a mediation or arrange for discovery. The plaintiff and its lawyers are silent in this regard.
[7] The appellant argues that the Master misapplied the legal test in effectively imposing too harsh an onus upon the plaintiff, particularly in light of the fact that this was the first Status Hearing citing Kostruba and Sons Inc. v. Pervez, 2011 ONSC 2411. I disagree.
[8] While it may be somewhat more unusual to dismiss an action at a first Status Hearing, there is no basis to suggest any special leniency on the basis that there have been no prior Status Hearings. Moreover, the Master found that there was no explanation for the delay. This conclusion was amply justified on the evidentiary record before her. In offering no explanation for the delay it is hard to see how the plaintiff may be considered to have discharged its onus.
[9] The appellant also argues that the Master erred in drawing unsupportable inferences from the evidence with respect to prejudice. Again, I do not agree.
The Master found that there was “not a scintilla of evidence before her as to the whereabouts and continued existence of documents. I do not know who the witnesses are and whether the plaintiff knows their whereabouts. I do not even know who, from the plaintiff’s corporation has knowledge of the action and its status.” (Reasons, para. 4)
[10] Given the absence of evidence as set out by the Master, the Master was entitled to conclude, as she did, that the plaintiff had not discharged its burden of showing that the defendant would not be prejudiced. In short, the plaintiff did not discharge its onus to show that the plaintiff would not suffer prejudice if the action were to proceed.
[11] While it might have been more prudent for the Master not to make any reference to the stress and anxiety suffered by the defendants, she clearly was alive to the fact that this is not a determinative or dispositive consideration and noted that it was not a determinative or dispositive consideration.
[12] She concluded at para. 6 of her Reasons:
Even balancing the plaintiff’s interest in having a hearing on the merits and the defendants’ interest in having the claims against them resolved in an expedient and time-efficient manner, I come to the view that the balance tips in favour of the defendants. There is no acceptable explanation for the plaintiff’s delay in advancing its claims on their merits. Indeed, there really is none. And knowing nothing about the documents and witnesses, I am not satisfied that the defendants will not suffer non-compensable prejudice if the action is permitted to proceed. Then too, and in any event, there is no evidence from the plaintiff (either directly or indirectly) that is either persuasive or credible as to a constant and continued desire to see the action prosecuted.
[13] I am satisfied that she did not base her decision on the observation that she made earlier in her decision that the defendants had suffered anxiety and distress with respect to the nature of the allegations.
[14] In short, the Master was alive to and applied the correct test. I find no error of law or principle or palpable or overriding error that could justify the intervention of this Court with the Master’s exercise of her discretion to dismiss the action for delay. The appeal is therefore dismissed.
Costs
[15] I have endorsed the Appeal Book, “Appeal dismissed for reasons delivered orally. Costs payable by the plaintiffs to the defendants in the amount of $8,500.00.”
___________________________ HARVISON YOUNG J.
Date of Reasons for Judgment: April 9, 2015
Date of Release: April 15, 2015
CITATION: Brampton Hardwood Floors Ltd. v. Kingsbury Technology Canada Inc., Gouskov, 2015 ONSC 2305
DIVISIONAL COURT FILE NO.: 505/14 DATE: 20150409
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
BRAMPTON HARDWOOD FLOORS LTD.
Plaintiff
(Appellant)
– and –
KINGSBURY TECHNOLOGY (“CANADA”) INC., ANDREI GOUSKOV, VLADIMIR GOUSKOV and SERGEY REBROV
Defendants
(Respondents)
ORAL REASONS FOR JUDGMENT
HARVISON YOUNG J.
Date of Reasons for Judgment: April 9, 2015
Date of Release: April 15, 2015