CITATION: Nadarajah v. Lad, 2015 ONSC 4626

DIVISIONAL COURT FILE NO.: 121/15

DATE: 20150720

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

BAVANEETHAN NADARAJAH, Plaintiff/Appellant

– and –

RATILAL LAD Defendant/Respondent

William G. Scott, for the Appellant,

Daniel Fiorita, for the Respondent

HEARD: June 24, 2015 in Toronto

MOLLOY J.:

REASONS FOR JUDGMENT

A. INTRODUCTION AND BACKGROUND

[1] This is an appeal by the plaintiff from the decision of Master Haberman dated February 10, 2015,[^1] in which the Master dismissed the plaintiff’s motion to set aside the October 25, 2011 Registrar’s Order dismissing the action as abandoned.

[2] The action is a personal injury claim by the plaintiff based on injuries he allegedly received when the car he was driving was rear-ended by a car driven by the defendant in March 2009. There were no passengers in either car and no witnesses to the accident.

[3] In June 2010, the plaintiff retained Paul Wilkins, who at the time was a lawyer with the firm Srebrolow, Lebowitz, Spadafora (“SLS”). Mr. Wilkins appears to have done nothing to advance the matter until February 26, 2011, when he provided notice of the claim to the defendant’s insurer, Economical General Insurance (“Economical”). The statement of claim was issued on March 2, 2011, just days before the two year limitation period would have expired, and served on March 30, 2011. At the request of Economical’s assigned insurance adjuster, Mr. Wilkins agreed to waive the requirement of delivery of the statement of defence so that settlement discussions could be pursued. By that time he had not yet obtained any of the documentation necessary to evaluate the claim or enter into settlement discussions. He requested production to him of various medical and financial records in April 2011, but did nothing else. In particular, he did nothing to advance any settlement discussions and did not require Economical to deliver a defence.

[4] A Notice of Action Dismissal was issued by the court on August 31, 2011. Mr. Wilkins has no recollection of seeing it at that time, likely because the practice at SLS was to simply turn over such notices to an articling student for follow-up. Unfortunately, the articling student to whom this file was assigned had a serious substance abuse problem. He did nothing. Nobody was supervising his work. Accordingly, and inevitably, a Registrar’s Order was issued on October 25, 2011, dismissing the action as abandoned.

[5] Mr. Wilkins acknowledged that the dismissal order came to his attention in the last week of October 2011. After much further delay and many false starts, the plaintiff’s motion to set aside the Order of the Registrar was argued before the Master on December 8, 2014. The Master dismissed the motion on February 10, 2015, with extensive written reasons comprising 153 paragraphs.

[6] For the detailed reasons that follow, the appeal is dismissed. The Master’s decision was an exercise of discretion and is entitled to deference. To the extent there were errors by the Master, those errors did not undermine the result. Alternatively, if I were to set aside the Master’s decision and exercise my own discretion, I would have reached the same conclusion.

B. STANDARD OF REVIEW

[7] The plaintiff does not assert any error of law on the part of the Master. Both counsel agree that the Master’s decision was an exercise of discretion entitled to deference and that this Court can only interfere if she committed a palpable and overriding error in reaching her decision.[^2]

C. GROUNDS OF APPEAL

[8] Plaintiff’s counsel[^3] accepts that the Master identified the correct legal test. The Master noted that the approach to be taken involves reconciling two competing principles: (1) the importance of having civil disputes determined on their merits; and (2) the public interest in a timely and cost-effective resolution of such disputes. The Master also identified the four factors that are well-accepted as being the starting point for any analysis: (1) an explanation for the litigation delay; (2) inadvertence in missing the deadline; (3) prompt action in bring the motion to set aside the dismissal; and (4) no significant prejudice to the defendant as a result of the delay. She held, correctly, that a contextual approach must be taken, that it is not necessary for the plaintiff to be successful on all factors, and that the key factor is usually prejudice.[^4]

[9] Plaintiff’s counsel submits that the Master committed palpable and overriding error in respect of findings of fact and mixed fact and law in the application of these legal principles. In particular, the following grounds of appeal are asserted:

(i) The plaintiff’s evidence was improperly discounted because he testified eventually through an interpreter, but originally delivered an affidavit, and apparently dealt with his counsel, without such assistance.

(ii) The Master erred by considering delay that preceded the issuance of the statement of claim;

(iii) The Master failed to properly take into account the role of the defence insurer in contributing to the delay;

(iv) The Master erred in finding there was no “system” for managing and tracking deadlines and therefore no adequate explanation for why the deadline was missed;

(v) The Master erred in finding the plaintiffs had not rebutted the presumption of prejudice.

(vi) The Master erred by failing to take into account a subsequent amendment to the Rules with respect to the timing of a dismissal for delay.

D. ANALYSIS

(i) Discounting the plaintiff’s evidence

[10] I agree with the submission of counsel for the plaintiff that the Master erred in her treatment of the evidence of the plaintiff. The Master noted that the plaintiff filed two identical affidavits, but that only the second affidavit included an averment from an interpreter that the content of the affidavit had been translated into Tamil for the plaintiff before he signed it. That same interpreter translated for the plaintiff when he was cross-examined on the affidavit. The Master then queried how the plaintiff was able to communicate with his counsel and how he was able to convey his evidence to the firm so that they could prepare the affidavit in its previous version. She then held, (at para. 30), “All of this raises questions about the weight of the plaintiff’s evidence.”

[11] In my view, this is an unfair assessment. The plaintiff testified on cross-examination that he first started learning English upon coming to Canada in 1998 and sometimes has difficulty comprehending what people say to him in English. He said that he speaks Tamil at home, but speaks English in his work life. It is very common for people whose first language is not English to use the services of an interpreter in legal proceedings, particularly when under cross-examination, even though their English is completely adequate for them to converse, explain themselves to others, and understand generally what is said to them. It is important to note in this case that the plaintiff spoke English at work and that his two affidavits were identical. Further, when he was cross-examined with the assistance of an interpreter, his evidence did not vary from what he had said in his original affidavit. In this context, it is not fair to say that there should be any reduction in the weight to be given to his evidence.

[12] However, there was nothing about the plaintiff’s evidence that was controversial in relation to the motion itself. The Master did not base any part of her decision on the failure of the plaintiff to supervise the conduct of his counsel, nor was there any finding that the plaintiff lacked the subjective intention to proceed with the action. Any blame for the failure to move the action forward at all stages was laid squarely at the feet of the plaintiff’s lawyer, where it belonged. Where there was any conflict between the evidence of Mr. Wilkins and that of the plaintiff, the Master did not accept Mr. Wilkins’ version.

[13] Accordingly, while I think there is some merit to this ground of appeal, it had no impact on the decision reached by the motion judge. Having made this observation about the plaintiff’s testimony in her recital of the facts at the beginning of her Reasons, the Master never returned to it again. Therefore, this does not provide any basis for interfering with the conclusion reached by the Master.

(ii) Delay before issuance of the statement of claim

[14] The Master did examine the delay prior to the issuance of the statement of claim and the fact that plaintiff’s counsel did nothing about obtaining the relevant documentation to support the claim, apart from an accident report.

[15] However, this was not a significant part of her analysis. These were important background facts in order to put the other evidence in context. The failure to obtain medical reports and other relevant documents at an early stage was also relevant because of its impact on prejudice to the defence. If that material had been obtained in a timely way and provided to the defence, the defence would not have been in much of a position to argue that it was prejudiced by the delay that ultimately occurred.

[16] I would not give effect to this ground of appeal as it had no impact on the decision.

(iii) Failure to consider Economical’s contribution to the delay

[17] I see no merit to this ground of appeal. The Master did not ignore the conduct of Economical. She simply did not find any conduct by Economical that was relevant to the delay issue. I agree entirely. Economical suggested a waiver of the time for delivery of a statement of defence so that settlement could be discussed. Economical’s insured rear-ended the plaintiff. This was a normal and sensible approach for Economical to have taken. It was also normal and sensible for plaintiff’s counsel to have agreed to this approach. Economical then waited to receive the documents that Mr. Wilkins said he would be sending. Economical’s adjuster confirmed this agreement in writing and stated that if settlement negotiations broke down he would file a statement of defence within 30 days of being asked to do so. There was no obligation on Economical to do anything further.

[18] The Master accepted the evidence of Economical that its adjuster made repeated attempts to reach Mr. Wilkins after receipt of the dismissal order. However, despite lengthy phone messages being left for Mr. Wilkins, and despite Mr. Wilkins’ knowledge by then that the dismissal order had been made, none of these phone calls were returned. In May 2012, having received nothing from the plaintiff’s counsel, Economical quite understandably formed the view that the plaintiff had abandoned his claim and closed its file.

[19] When plaintiff’s counsel eventually contacted Economical in November 2012 to request its consent to an order setting aside the Registrar’s Order, Economical refused. There is nothing wrong with that. It was incumbent on plaintiff’s counsel to bring the appropriate motion and to do so promptly. The defence did not obstruct or delay the motion. Any delay in getting the motion heard is directly attributable to former counsel for the plaintiff.

[20] I find no error in any reasoning by the Master in relation to the role of the insurer in any delay.

(iv) Inadvertence and the absence of any “system” for managing deadlines

[21] The Master made the following findings (at paras. 112-113):

[112] Wilkins made it clear that neither he nor SLS has a system for tracking deadlines. Instead, when dismissal notices or dismissals orders came in, they were given to an articling student. According to Wilkins, that WAS the firm’s system. They did nothing on a proactive basis to avoid receiving these notices by keeping track of these timelines. Instead, they waited until the situation was somewhat dire (dismissal notice) or seriously problematic (dismissal order) before dealing with it.

[113] Wilkins’ failure to diarize cannot be classified as inadvertent in the context of his not having had any form of tickler system. There is no place for inadvertence in this equation. For inadvertence to apply, there had to have been a system in place to track dates, such that the failure to enter a deadline in it can be said have been inadvertent. Inadvertence is a one-off error, not a failure to create a necessary date-tracking system. There was no tracking system here at all. SLS waited for dismissal notices to come in before addressing the issue of timelines. At that point, they left everything to students, who were largely unsupervised. This cannot be viewed as “a system”.

[22] Counsel for the appellant submits that the Master erred in finding that there was “no system” in place for tracking deadlines. The system in place was to wait for the court to issue a dismissal notice and then rely upon articling students to respond. The appellant argues that although this may not be a good system, it was nevertheless a system, and in that sense the default was inadvertent as opposed to deliberate.

[23] I agree with the Master that the purported system relied upon by plaintiff’s counsel is the equivalent of no system at all. I also agree with her characterization of this purported system as “cavalier” and “nothing short of a reckless way to practice law.”[^5]

[24] However, I do not necessarily agree with the Master that upon finding that the solicitor had no system for tracking impending deadlines, his conduct cannot be said to be “inadvertent” within the meaning of the Reid factors. It certainly was not a deliberate act by plaintiff’s counsel in this case to miss the deadline and then do nothing about it. Whether the lawyer’s actions can be said to be reckless, grossly negligent, or even professional incompetence, is only a question of degree. His conduct was not based on any deliberate intent to not proceed with the action, and in that sense was, in my view, inadvertent.

[25] Much of the case law dealing with this point is vague as to what is encompassed within the word “inadvertent.” In particular, it is unclear whether “inadvertent” is the opposite of “deliberate,” or whether it is the opposite of “negligent.”

[26] The Mirriam-Webster Dictionary defines “inadvertent” as: “not intended or planned;” “not focusing the mind on a matter, inattentive;” and, “unintentional.” The Oxford English Dictionary defines “inadvertent” as: “not resulting from or achieved through deliberate planning.” Black’s Law Dictionary defines “inadvertence” as “an accidental oversight: a result of carelessness.” These are the ordinary meanings of inadvertence. It would seem from a plain language approach that conduct that would be characterized as negligent, could nevertheless be inadvertent.

[27] Some of the case law, however, seems to draw a distinction between conduct that amounts to a slip or oversight, as opposed to conduct that can be said to be negligent, with only the former being treated as being inadvertent. The Master in this case appears to have taken that approach, and there is some support for it in the case law.[^6]

[28] However, the Court of Appeal in Finlay v. Van Paasen[^7] cautioned against making determinations about solicitor’s negligence in the context of a motion of this kind. In that case, plaintiff’s counsel had failed to set an action down for trial within the time required under the Rules. The registrar issued a status notice, but due to an error in the registrar’s notice, the status notice was never served on counsel for the plaintiff. The registrar issued an order dismissing the action on April 30, 2007, which first came to the attention of plaintiff’s counsel in mid-May 2007. The motion to set aside the dismissal was not brought until May 2009. The motion judge held that this was not a “deliberate decision not to advance the litigation” but rather a “passive decision to ignore it.” He ruled that the failure to move promptly to set aside the dismissal was fatal to the motion because the third branch of the Reid test had not been met. The Ontario Court of Appeal held that the motion judge erred in applying a rigid test under which a failure to meet one aspect of the four-part test was determinative. Rather, a contextual approach must be taken, which involves weighing all of the relevant factors. The Court of Appeal went on to consider, in obiter, a reference by the motion judge to the plaintiff not necessarily being out of a remedy because of a potential claim against the his own solicitors for negligence. On this point, Laskin J.A. noted at paras. 32-33:

[32] A judge who refuses to set aside a dismissal order will naturally be concerned that the effect of the refusal will be to deprive an innocent party of its day in court. To protect the claim of the innocent party, the judge will often raise the possibility of a negligence action against the party's own lawyer. Although perhaps understandable, I do not find this helpful. Speculation about whether a party has a lawsuit against its own lawyer, or the potential success of that lawsuit, should not inform the court's analysis of whether the registrar's dismissal order ought to be set aside.

[33] In my view, on a motion to set aside a dismissal order, the court should be concerned primarily with the rights of the litigants, not with the conduct of their counsel. As Sharpe J.A. noted in Marché, at para. 28, "The law will not ordinarily allow an innocent client to suffer the irrevocable loss of the right to proceed by reason of the inadvertence of his or her solicitor." Sharpe J.A. went on to recognize that the situation may be different where the lawyer's conduct is not inadvertent but deliberate. In the case before us, however, the conduct of Finlay's law firm was not deliberate, which affords a further basis to call into question whether the motion judge's decision was just: see Chiarelli v. Weins; Gao v. De Keyser, [2008] O.J. No. 2225, 61 C.P.C. (6th) 89 (Div. Ct.), at para. 27.

[29] For similar reasons, I consider it unhelpful in a motion of this nature to characterize conduct as being negligent, as opposed to inadvertent. The term “negligence” is a legal concept with legal requirements and should not be used loosely as part of the determination of a different issue, such as whether or not conduct was inadvertent. It seems to me that the question at this branch of the Reid test ought to be whether the conduct was inadvertent, as opposed to deliberate, and that whether the conduct was negligent is irrelevant.

[30] In fairness to the Master, the question does not appear to have been characterized in this manner before her, nor was it directly argued before me. The Master characterized the failure of the plaintiff’s counsel to avoid the dismissal order as a “deliberate decision to offload [dismissal] notices and orders to students and to provide them with minimal supervision.”[^8] She also characterized this conduct as being “reckless” and “cavalier” and as amounting to no system at all for tracking deadlines. She held, however, that this could not be inadvertence because inadvertence “is a one-off error, not a failure to create a tracking system.”

[31] With respect, I do not believe that a deadline missed due to the absence of a tickler system is by definition something that cannot meet the test for inadvertence. However, the Master in this case did not treat the failure to meet the “inadvertence” standard as fatal to the plaintiff’s motion. Rather, she quite correctly took a contextual approach, weighing this factor along with the others in determining the appropriate just result.

[32] There is a continuum of conduct under this umbrella. If counsel deliberately did not do something for tactical or strategic reasons and a dismissal order was the result, this would be a strong factor weighing against setting aside the dismissal order. On the other end of the continuum is a slight misstep or oversight in otherwise conscientious conduct, such that a deadline gets missed notwithstanding the existence of an efficient tickler system and careful supervision of it. No individual and no system can be perfect and mistakes can sometimes occur. Such circumstances would be inadvertent at the other end of the continuum from deliberate conduct and would weigh strongly towards granting relief to the plaintiff. However, within the spectrum of inadvertent conduct there are vast differences. The conduct of the plaintiff’s counsel in this case, while not deliberate, was egregious. It is at the opposite end of the spectrum from inadvertent conduct that could be considered to be a mere slip. As such, in weighing all of the factors, this factor would tend to weigh against the plaintiff notwithstanding that the conduct itself was inadvertent, as opposed to deliberate. The weighing process is qualitative, not quantitative. It is not a matter of how many of the four tests are satisfied by the plaintiff, but the relative merits and weaknesses of the circumstances in each of the categories.

[33] Thus, although I would not have characterized the conduct in this case as deliberate, and I would have found the conduct to have been inadvertent, I consider it reasonable for the Master to have weighted this factor against the plaintiff. Indeed, I would have done the same, although perhaps labelling it differently.

(v) Prejudice to the defence

[34] The Master held, correctly, that where a significant period of time has elapsed, there is a presumption of prejudice to the defendant and the onus is on the plaintiff to provide evidence rebutting that presumption. If the plaintiff provides sufficient evidence to rebut the presumption, the onus then moves to the defendant to demonstrate actual prejudice.

[35] The Master found that the onus in this case never shifted to the defendant to establish evidence of actual prejudice. Rather, the Master found that the plaintiff had failed to discharge his primary onus of rebutting the presumption of prejudice arising from the delay. Her analysis on the prejudice issue is set out in paras. 142-144 of her Reasons, as follows:

[142] The presumption of prejudice applies here as the limitation period expired shortly after the claim was issued. I am not satisfied that the plaintiff has rebutted that presumption. Though they note what is available, it is premature to know if the plaintiff had pre-existing injuries or other medical issues that would need to be explored before the court can be satisfied that the damages he seeks are strictly from injuries sustained in this accident. There is also no evidence indicating this is the sum total of documents that will need to be gathered – there is no indication that anyone other than Dr. Manuchin [sic] and the Brar Centre were at any time involved with the plaintiff’s post-accident assessment or treatment.

[143] There is also no discussion about liability issues, such as the continuing availability of witnesses or documents. The plaintiff had the onus of displacing this presumption and they have failed to do so.

[144] At the same time, EG points to the fact that this event took place almost 6 years ago and the pleadings have not yet closed. If the matter proceeds, it must go through documentary and oral discoveries and mediation before it can even be placed on a trial list. I expect it will be 2017 before it proceeds to trial. I have concerns about fading memories over that time span, exacerbated by the stage of this action. Where an action has been dismissed for delay at this juncture, they may have already gone through examinations for discovery, so memories have been jogged, committed to writing under oath and preserved. Not so in this case.

[36] The Master’s Reasons on this issue are undermined by some fundamental misapprehensions of fact.

[37] First, the Master held that there was nothing to establish that the only doctors involved in the plaintiff’s post-accident care were Dr. Manucha and Dr. Brar. Therefore, she reasoned, it was not possible to tell if all relevant documents had been produced. That is incorrect. The plaintiff testified on cross-examination that he saw Dr. Brar at a walk-in clinic on the day of the accident and that after that the only doctor he saw was his family doctor, Dr. Manucha. The OHIP Summary for the years from 2006 to 2010 was produced, from which the accuracy of this assertion can be ascertained. The Master failed to take this into account. It would appear from the documents produced by the plaintiff and the plaintiff’s evidence on cross-examination that all documents related to his medical care post-accident are available and have been produced. On this issue, the Master should have found that the presumption of prejudice with respect to post-accident care had been rebutted. Instead, she found the opposite.

[38] Earlier in her Reasons (at para. 40), the Master stated that there was no evidence as to the involvement of Brar Medical. This is also incorrect. The plaintiff stated on cross-examination that this was the walk-in clinic where he saw Dr. Brar on the day of the accident.

[39] Among the documents produced by the plaintiff were employment records at RIM from April 2008 to November 2013. The Master noted at para. 40 of her Reasons that this was “presumably” where the plaintiff was working at the time of the 2009 accident. In fact, this employment was confirmed on the plaintiff’s cross-examination. I take nothing from this oversight, however, as the Master accepted the logical conclusion that these must have been the plaintiff’s employment records.

[40] The Master found at para. 143 that the plaintiff had failed to rebut the presumption of prejudice on the liability issue, stating that the continuing availability of documents and witnesses on that issue had not been discussed. That is not correct. There was evidence on the motion that: this was a two-vehicle accident; the defendant’s vehicle rear-ended the plaintiff’s vehicle; there were no passengers in either car; and, there were no other eye-witnesses to the accident. The police report in respect of the accident was ordered early on and has been produced. Also, the full files from the plaintiff’s own insurer, State Farm, with respect to the property damage and accident benefits were produced. It is hard to see what else the plaintiff needed to do to rebut the presumption in respect of the liability issue. The Master’s finding that there was no evidence with respect to the liability issue was a fundamental misapprehension of fact.

[41] Thus, the Master’s findings with respect to prejudice relating to liability issues and medical care after the accident are fraught with difficulty because of the misapprehension of key aspects of the evidence.

[42] However, the Master’s Reasons must be read as a whole. These three paragraphs (142-144) are the only paragraphs set out under the heading “Prejudice” towards the end of the Master’s Reasons. However, elsewhere in the Reasons, the Master referred to prejudice in relation to the possibility that the plaintiff had prior existing injuries for which there are no documents available. The Master noted, at paras. 73 to 74:

[73] Wilkins ends his affidavit by stating that the notes and records of treating physicians are available and must be maintained under regulations to the Public Hospitals Act. Bearing in mind that this statute sets a finite time frame for retention; that the accident giving rise to the action occurred almost 6 years ago and that the court generally allows a defendant access to medical records going back 3-5 years, depending on the circumstances of the case, it is not clear that entitlement will not surpass that retention period.

[74] Nadarajah agreed that he had been having migraine headaches before this accident, so production of medical records that pre-date the accident would be in order in this case. This issue is not addressed in Wilkins’ evidence.

[43] Obviously, the Master was alive to the fact that there was potential prejudice arising from the lack of records in respect of pre-existing injuries. There is a brief reference in para. 142 of the Reasons to it being “premature to know if the plaintiff had pre-existing injuries” which must be taken as referring back to other portions of the Reasons dealing with the same point. I am confident this would have been part of her overall weighing of the evidence within the final contextual analysis leading to her ultimate decision.

[44] The pre-existing injury issue is also problematic due to the fact that the OHIP records only go back to 2006, just three years before the accident, and are no longer available for any period prior to that date. Compounding the problem is the plaintiff’s fading memory as to when he had which ailments. For example, his family doctor’s records show that he had complained of migraine headaches in 2005 and was prescribed Naproxen. When cross-examined on this point prior to the motion, the plaintiff testified that he did not remember if he took Naproxen in September 2005 and did not remember taking any prescription medications for pain or migraines during that time period. When defence counsel asked how long the plaintiff had been having such headaches and migraines, he was met by an objection by counsel for the plaintiff and no further information was ever provided. This remains an outstanding issue for which the plaintiff has failed to provide an explanation or any documentation.

[45] The Master also noted that there was no evidence from the plaintiff with respect to the availability of witnesses and the state of their memories. This applies to doctors and therapists who saw the plaintiff in respect of his injuries as well as his employer. In fact, there was evidence from the cross-examination of the plaintiff that all of the supervisors he had worked with at RIM are no longer there and no information has been provided as to where they are now. There is also no evidence with respect to the availability of his supervisors at Tim Horton’s where he worked post-accident.

[46] Finally, the Master drew the common sense inference that all memories fade over time. In this case, there have been no examinations for discovery or interviews of any of the potential witnesses, and therefore little means to refresh memories. The length of the delay and the fact that nothing at all has been done in the action exacerbates this problem. The accident occurred in 2009. The pleadings are not yet closed. If the action proceeds, there must then be documentary and oral discovery and mediation before the action can even be placed on the trial list. The Master estimated that it would be 2017 before there would be a trial. Given that 2015 is more than half over now, and the Master was not factoring in the time for this appeal, I expect the 2017 estimate may be optimistic. However, even assuming optimistically that the trial is reached by 2017, this would be eight years after the accident.

(vi) Amendment to the Rule

[47] The plaintiff argued on the appeal that the Master erred in failing to take into account the change in the Rules that occurred after the dismissal order was made, but before the motion was finally heard by the Master. It is clear that the new Rule did not apply to this case. However, the plaintiff argued on appeal that the Master ought to have taken the change in approach reflected by the amendment as a factor in the exercise of her discretion. This argument could have been made before the Master, but was not. Accordingly, it cannot be said that the Master erred by failing to take it into account.

E. CONCLUSIONS AND ORDER

[48] There are two possible approaches here. One approach would be to defer to the discretion of the Master, notwithstanding the errors to which I have referred, on the basis that those errors were not material to her ultimate conclusion and to therefore uphold her decision. The alternative approach would be to determine that the errors sufficiently undermine the reliability of the Master’s conclusion that I should set aside her decision and weigh the relevant factors myself. That is the approach taken by the Court of Appeal in Finlay v. Van Paasen,[^9] in which the Court actually reached a different conclusion to that of the motion judge. In this case, however, regardless of which approach I take, I arrive at the same result.

Deference to the Master

[49] It is neither fair nor appropriate to apply a microscope to the Reasons of the Master and scrutinize them line by line looking for errors, without looking at the Reasons as a whole. Taken as a whole, I find the Reasons support the conclusion reached by the Master and require deference to her exercise of discretion.

[50] Thus far, I have not referred in my analysis to the Master’s Reasons on the third Reid test: the requirement that the motion to set aside the dismissal order be brought at the first available opportunity. The appellant does not raise any error of fact or law in respect of this aspect of the Master’s Reasons. As previously discussed, the conduct of plaintiff’s counsel giving rise to the default in the first place was exceedingly problematic. However, the utter failure of counsel to rectify the default after discovering the dismissal order is even worse.

[51] The dismissal order was issued on October 25, 2011. Counsel for the plaintiff acknowledged that he became aware of the Order during the week it was issued. He gave it to his articling student to deal with and left him completely unsupervised with respect to that task. This was the same student who missed the initial Notice of Dismissal and, to the knowledge of the firm, was struggling with issues of substance abuse. Ultimately, that student left the firm in March 2012 and committed suicide not long afterwards. Even then, Mr. Wilkins (the solicitor with carriage of the file) did nothing to move the action forward. He suggested that the file had been assigned to another student, but there was no evidence that this had ever been done. There was no supervision of the second student either. A motion date had been booked for April 2012, but no materials were drafted or served, so that date was lost. Although the second articling student was supposedly assigned to take care of dismissal orders, apparently there were quite a number of them and this matter was not given priority because other cases were in even worse shape.

[52] Meanwhile, Mr. Wilkins, decided to leave the SLS firm. He notified the firm in June or July of 2012, with the plan that he would leave as of September 2012. He took the plaintiff’s file with him to the new firm. He testified that he was too pre-occupied with the transfer of his practice during July and August to do anything about the dismissal order in this case. Eventually he did book a motion date for January 29, 2013. However, he only booked 15 minutes for the motion he knew to be contested, which was clearly inadequate, and the motion materials were short-served necessitating an adjournment.

[53] The next motion date, May 16, 2013, was also lost because the plaintiff had not booked sufficient time. The motion came on again on October 17, 2013 but had to be adjourned because Mr. Wilkins was purporting to argue it as counsel, while at the same time relying on his own evidence, submitted through the affidavit of another person on information and belief. The matter was then to return on May 22, 2014, only to be adjourned again at the request of the plaintiff’s counsel, who now sought to get his insurer involved. The motion was not argued until December 2014, more than three years after the motion had been dismissed as abandoned. None of this delay is attributable to the defendant; all of the delay is the fault of plaintiff’s counsel.

[54] The Master dealt extensively with this delay in failing to bring the motion in a timely manner and it is clear this formed an important foundation for the exercise of her discretion.

[55] Although there were some misapprehensions of fact by the Master in respect of the prejudice grounds, she was well-aware of some actual prejudice to the defendants and in any event was entitled to base her decision, in all of the circumstances, on the presumption of prejudice given the length of the delay. Whether the initial default could be said to be inadvertent or deliberate, it was nevertheless highly problematic and the Master was entitled to weigh that in the balance. These factors must then be added to the very serious breach of the responsibility on counsel to move promptly to set aside the dismissal order, which was clearly of great concern to the Master.

[56] When the Reasons are looked at in their entirety, I find they stand up to the standard of review and are entitled to deference.

Exercising my own discretion

[57] Alternatively, if I were of the view that the errors made by the Master made it inappropriate to rely on her conclusion, the appropriate route would be to consider the factors myself, applying the same test.

[58] On the first of the Reid tests, I am satisfied that the plaintiff intended to proceed with his action and there is no blame to be attributed to him in respect of what happened here.

[59] Secondly, I am also satisfied that the plaintiff’s solicitor did not deliberately ignore the looming deadline, nor did he deliberately ignore the Notice of Dismissal. It is possible that the initial articling student deliberately ignored both, but that cannot be ascertained due to his death and the fact that nobody was supervising his work. However, even if the dismissal order can be said to have resulted entirely from counsel’s inadvertence, the actions of counsel are particularly blameworthy because of the utter failure to have a reasonable system in place to deal with this very peril and the failure to supervise the work of articling students.

[60] The plaintiff fails abysmally on the third test. Counsel knew about the dismissal order in September 2011; the motion was not argued until December 2014. That delay is entirely attributable to counsel for the plaintiff and it cannot be attributed to inadvertence. Plaintiff’s counsel chose to address other cases and other problems he considered more critical, leaving this action to wallow.

[61] Finally, on the issue of prejudice, the length of the delay gives rise to a presumption of prejudice. Given the nature of the accident and the evidence produced, I would consider that onus to have been discharged on the liability issue. The defence presented no evidence of actual prejudice on the liability issue as a result of the delay. Accordingly, this aspect of the test is not an obstacle for the plaintiff.

[62] However, the situation is different with respect to damages. The plaintiff had a pre-existing condition for which records are not available and about which his own memory is demonstrably faulty. The defence has established on cross-examination that no evidence or witness statements have been obtained from the plaintiff’s supervisors at work prior to the accident. They would be key witnesses on the issues of damages and pre-existing injuries. Those supervisors no longer work at the same place and the plaintiff does not know where they are or if they can be found, much less whether they have any memory of the events in question. The plaintiff has not discharged his onus in rebutting the presumption of prejudice on this issue. Further, there is evidence of actual prejudice, which lies unanswered by the plaintiff.

[63] There is a preference toward having civil actions determined on their merits. There is also a strong inclination to avoid punishing a plaintiff for the actions of his solicitor. However, there is also a countervailing policy concern about the need for timeliness in the delivery of civil justice. It is also important to uphold the Rules of Civil Procedure by which all actions are to be governed. For me, the length of the delay and the egregious conduct of plaintiff’s counsel take this matter over the top. It is one thing to allow indulgences, recognizing that mistakes get made, and to therefore alleviate the harshness of strict compliance with rigid rules. It is another thing to ignore the Rules altogether with impunity. In my view, weighing all of these factors into the balance and taking into account the competing public interest factors, the scales of justice are tipped towards the defence in this matter.

[64] Although the amendment to the Rules of Civil Procedure was not argued before the Master, it was argued before me and it is therefore appropriate for me to take it into account in weighing the relevant factors. Under the new Rule, which came into effect on January 1, 2015, the 180-day rule for dismissal of actions as abandoned was eliminated. The plaintiff’s action was commenced on March 2, 2016 and under the new Rules would not have been dismissed as abandoned for delay until March 2, 2016. There is authority for the proposition that the amendment to the Rule is part of the context to be taken into account in weighing the benefits of timely justice against the determination of cases on their merits.[^10] The argument of the motion in this case should have been completed in 2012, two years before the amendment to the Rule. In that event, the amendment could clearly not have been raised at all. The unconscionable delay by the defendant in bringing the motion forward should not be permitted to stand in his favour. In this case, I would give no weight to that particular factor.

[65] Accordingly, I would not grant the relief sought by the plaintiff and would not set aside the dismissal order.

Order

[66] Thus, regardless of which route I take, my conclusion is that the plaintiff is not entitled to the relief sought. I would therefore dismiss the appeal.

[67] The parties are in agreement that costs of the appeal shall be to the defendant, fixed at $6500.00. Those costs are payable forthwith.

MOLLOY J.

Date: July 20, 2015

CITATION: Nadarajah v. Lad, 2015 ONSC 4626

DIVISIONAL COURT FILE NO.: 121/15

DATE: 20150720

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

MOLLOY J.

BETWEEN:

BAVANEETHAN NADARAJAH, Plaintiff/Appellant

– and –

RATILAL LAD Defendant/Respondent

REASONS FOR JUDGMENT

MOLLOY J.

Released: July 20, 2015

[^1]: 2015 ONSC 925

[^2]: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; Wellwood v. Ontario (Provincial Police), 2010 ONCA 386 at para. 28

[^3]: Counsel on this appeal and on the argument of the motion before the Master, was not the plaintiff’s original counsel, but rather was retained by LawPro after the Master suggested to the original lawyers that the matter should be reported to their insurer.

[^4]: Reid v. Dow Corning Corp. (2001), 11 C.P.C. (5th) 80 (Ont.Div.Ct.); Habib v. Mucaj, 2102 ONCA 880.

[^5]: Reasons of the Master at paras. 119 and 114

[^6]: See, for example, Mollicone v. Caledon (Town), 2010 ONSC 4177 at para. 38; R.A. v. R.D.S., 2012 ONSC 3907 (Div.Ct.); and to some extent Marche D’Alimentation Denis Theriault Lte. v. Giant Tiger Stores Ltd., (2007), 2007 ONCA 695, 87 O.R. (3d) 660 at paras. 27-33. For the contrary view, see Perera v. Pierre, 2010 ONSC 1858 (Div.Ct.) at para 29; Val Metal Fabrications Ltd. v. 1147335 )Ontario Inc. (c.o.b. Weston Road Management), 2012 ONSC 6505, at paras. 50-52

[^7]: Finlay v. Van Paasen, 2101 ONCA 204

[^8]: Reasons, para. 116

[^9]: Finlay v. Van Paasen, supra, Note 7 at paras. 29-30

[^10]: Dang v. Nguyen, 2014 ONSC 7150 (Div.Ct.) at para.4; Klaczkowski v. Blackmount Catpial Inc., 2015 ONSC 1650 (Div.Ct.) at para.33.