Court File and Parties
CITATION: Dua v. Ontario College of Teachers 2015 ONSC 5969
DIVISIONAL COURT FILE NO.: DC-15-758ML (Oshawa)
DATE: 20150928
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
REILLY, NORDHEMER & CORBETT JJ.
BETWEEN:
HARPREET DUA and NANAK P. SINGH Respondents (Plaintiffs)
– and –
ONTARIO COLLEGE OF TEACHERS, W. DOUGLAS WILSON and MICHAEL SALVATORI Appellants (Defendants)
H. Dua & N. Singh in person
S. D’Souza for the appellants
HEARD at Oshawa: September 15, 2015
Reasons for Judgment
NORDHEIMER J.:
[1] This is an appeal, with leave, from the decision of Howden J. dated September 25, 2014 that set aside an order of the Registrar dismissing this action for delay.
[2] This action was commenced on June 3, 2008. It involves a claim by the plaintiffs, who are husband and wife, for damages arising from the failure of the defendant College to provide Ms. Dua with certification as a teacher.[^1]
[3] Ms. Dua originally sought certification in 1994 when she and her family moved to Canada. She was granted certification in 1995 after completing an additional qualifying course. However, her certification was conditional on obtaining a teaching job within three years. Ms. Dua did not obtain a job in that three year period. She says that she had considerable difficulty finding a teaching job with the result that she eventually went to work for an IT company instead.
[4] In 2005, Ms. Dua sought, once again, to be certified. Over her objections, staff at the College (which had assumed responsibility for the certification process from the Ministry of Education) said that Ms. Dua would have to provide various pieces of information including copies of her degrees and her marks. Mr. Singh then became involved in dealing with the College and it appears that relations between the two deteriorated from that point forward. In the end result, the documentation that the College was requesting to process Ms. Dua’s application for certification was never provided. Instead, this action was started.
[5] Pleadings were exchanged in 2008. The examinations for discovery of the plaintiffs were completed by January 2009. The plaintiffs did not conduct any examinations for discovery of the defendants nor did they take any other steps to advance the action.
[6] On July 9, 2010, the Registrar sent out a notice that the action would be dismissed for delay, unless within ninety days a status hearing was held. On October 18, 2010, the Registrar issued an order dismissing the action for delay.
[7] The dismissal order did not come to the attention of the plaintiffs until March 2014 when Mr. Singh attempted to file the trial record for this action and was advised that the action had been dismissed. Because of the passage of time, the court file had to be ordered from storage so that Mr. Singh could determine why the action had been dismissed. In late June 2014, the file was retrieved and Mr. Singh found out the reason for the dismissal and the date of dismissal. The respondents brought a motion in August 2014 to set aside the Registrar’s order. The motion was argued on September 8, 2014.
[8] By endorsement dated September 26, 2014, the motion judge set aside the Registrar’s order on certain terms. By order dated January 27, 2015, Edwards J. granted leave to appeal.
[9] The endorsement of the motion judge sets out the background of this matter in some detail. It also sets out the appropriate test for setting aside an order dismissing an action for delay as established in Scaini v. Prochnicki (2007), 2007 ONCA 63, 85 O.R. (3d) 179 (C.A.) and confirmed in Marché D'Alimentation Denis Thériault Ltée v. Giant Tiger Stores Ltd. (2007), 2007 ONCA 695, 87 O.R. (3d) 660 (C.A.). That test incorporates the four factors set out in Reid v. Dow Corning Corp. (2001), 11 C.P.C. (5th ) 80 but with an important caveat, as explained in Scaini, at para. 23, where Goudge J.A. said:
In my view, a contextual approach to this question is to be preferred to a rigid test requiring an appellant to satisfy each one of a fixed set of criteria.
[10] The decision in Scaini confirmed, however, that the four factors set out in Reid were still the principle considerations in determining whether the dismissal order ought to be set aside. The point made in Scaini was that the four factors were not to be applied rigidly but, rather, were to act as a guide in determining the order “that is just in the circumstances of the particular case” (para. 24).
[11] The four factors set out in Reid are:
(i) explanation of the litigation delay;
(ii) inadvertence in missing the deadline;
(iii) the motion is brought promptly, and;
(iv) no prejudice to the defendant.
[12] I begin with the first factor by saying that, while it is stated in Reid simply as “explanation of the litigation delay”, it is implicit that the explanation offered must be an acceptable one, not just any explanation. In this case, the motion judge found, for very good reasons, that there was no satisfactory explanation for the respondents’ delay in prosecuting this action.
[13] In terms of the second factor, the motion judge found that the delay was not caused by any inadvertence on the part of the respondents. Rather, the motion judge found that the respondents had simply chosen to give other matters priority over their pursuit of this action. Those other matters included pursuing personal matters such as, for example, constructing a home and starting a business. They also appear to have included pursuing other court proceedings including claims in the Small Claims Court arising out of their business.
[14] In terms of the third factor, the motion judge found that the respondents had moved relatively promptly to set aside the dismissal order once they became aware of it.
[15] Finally, in terms of the fourth factor, the motion judge did not find any actual prejudice to the appellants but he did consider the inherent prejudice that arises when any proceeding is allowed to languish in terms of the effects that that can have on the quality of the available evidence, especially the memories of witnesses.
[16] In the end result, on the motion judge’s findings, three of the four factors militated against setting aside the dismissal order. Nonetheless, the motion judge set aside the order because he found that the respondents had not been given notice of the dismissal proceeding. Specifically, the motion judge said, at para. 31 of his endorsement:
But there is also no evidence that any notice was even sent to them concerning the status of the action and the dismissal.
[17] The motion judge found that this failure to send a notice to the respondents was a breach of the principles of natural justice. For that reason, the motion judge set aside the dismissal order.
[18] We are told that the issue, about whether the Registrar had actually sent notice to the respondents of the potential dismissal of their action, was not the subject of argument before the motion judge. While the fact that the notice did not reach the respondents, for reasons that I will mention below, was the subject of submissions before the motion judge, no suggestion was made before the motion judge that the notice had not, in fact, been sent to them. Rather, it appears that the motion judge reached this conclusion on his own and then relied upon it for the centre piece of the result in his reasons.
[19] When the reasons were received, and counsel for the appellants became aware of the importance of this issue, counsel then reviewed the court file. As a result of that review, the appellants have produced, for this appeal, evidence from the court file that notice was sent to the respondents but that it was returned to the court office by Canada Post marked “moved/unknown”. I should say that insofar as this new evidence can be said to be “fresh” evidence, I am satisfied that this court should receive it. It meets the test for the receipt of new evidence as set out in cases such as Sengmueller v. Sengmueller, 17 O.R. (3d) 208 (C.A.) at para. 9(QL). This evidence is central to the decision that is the subject of this appeal.
[20] This evidence shows that the notice was sent to the respondents at the address that the court had for them. Prior to the notice being sent out, however, the respondents had moved. The respondents did not advise the court of their change of address nor did they advise counsel for the appellants of that change of address, notwithstanding a direct request from counsel for that information. The respondents do say that they had arranged for all of their mail to be forwarded to their new address but, inexplicably, this piece of mail was apparently not forwarded. The respondents did not provide any intelligible reason why they were able to provide their new address to Canada Post for the purpose of having their mail forwarded to them but yet decided not to provide the court with their new address.
[21] Every party, and every lawyer of record, has a positive obligation to keep the court apprised of any change in their contact information. That obligation is inherent in the requirement under the Rules of Civil Procedure, R.R.O., Reg. 194, r. 4.02(2) that every document in a proceeding “shall” contain the name, address and telephone number of the party or of the lawyer of record for a party. The obvious purpose behind that requirement is so the court and the other parties have a current address for service of documents.
[22] In my view, the respondents cannot use their failure to keep the court apprised of their current address as an excuse for avoiding the consequences of the resulting failure of them receiving notice of the potential dismissal proceeding. It is not a breach of the principles of natural justice for a party not to be heard when the reason why that party is not heard is the direct result of their own actions or inactions.
[23] I appreciate that the order made by the motion judge is a discretionary one. However, where a judge exercises his/her discretion based on an error of fact that is central to the issue then the resulting order is not entitled to the deference that discretionary orders normally attract. One reason for that approach is that, as is the case here, it is unknown whether the motion judge would have exercised his discretion, in the same way, had he known the true facts regarding the notice issue.
[24] It then falls to this court to consider what order should have been made with knowledge of the full facts. As I earlier noted, three of the four Reid factors favour upholding the dismissal order. There is also nowadays a much stronger emphasis being put on the need for parties to move actions forward in a timely way. There is a growing, and very legitimate, concern regarding the amount of time that it is taking for even relatively simple proceedings to get to trial or other resolution. Parties no longer have absolute discretion in terms of the speed by which they will bring matters to trial. The court will bring its own view as to what is a reasonable timeframe, as the Rules of Civil Procedure make clear. If a party fails in that regard, then that party can expect that their proceeding will be dismissed. This point is succinctly made in 1196158 Ontario Inc. v. 6274013 Canada Ltd. (2012), 2012 ONCA 544, 112 O.R. (3d) 67 (C.A.) where Sharpe J.A. said, at para. 33:
At some point, a party who has failed to respect the rules designed to ensure timely and efficient justice loses the right to have its dispute decided on the merits. If that were not the case, the rules and the timelines they impose would cease to have any meaning and any hope of ensuring timely and efficient justice would be seriously jeopardized.
[25] This is not a complicated proceeding. There is no reason why more than seven years have now passed without the matter being brought to trial other than the respondents’ failure to pursue it diligently. Indeed, the respondents essentially admitted before us that they had given other matters their attention in priority to their prosecution of this action for at least five years. The appellants should not have the spectre of this claim hanging over them for years and years simply because the respondents choose to pursue interests other than this claim.
[26] I consider the dismissal of the action to be the just result in the circumstances of this particular case. In reaching that conclusion, I have considered the four factors in Reid, three of which, as I earlier noted, favour upholding the dismissal of this action. But I have also considered the fact that, on the surface of the pleadings, there appear to be serious issues about the merits of the underlying claim. I consider the apparent merits, or lack of merits, of the claims involved to be an appropriate factor in considering what is the just result in the case of the administrative dismissal of an action for delay. Any plaintiff who seeks to set aside the administrative dismissal of their action because they have failed to prosecute it in a timely way is seeking an indulgence from the court. That indulgence ought to be more readily granted to permit the continuation of a claim that appears to have merit over one that does not.
Conclusion
[27] The appeal is allowed, the order of the motion judge is set aside and the Registrar’s order dismissing this action is reinstated.
[28] The appellants are entitled to the costs of the appeal. I have reviewed the parties’ submissions on costs. The respondents sought costs of $10,000 if successful. The appellants sought costs of $4,890.08. In my view, the amount sought by the appellants is fair and reasonable for this appeal. The respondents are therefore ordered to pay to the appellants the costs of this appeal fixed in the amount of $4,890.08 inclusive of disbursements and HST within thirty days.
NORDHEIMER J.
REILLY J.
CORBETT J.
Date of Release:
CITATION: Dua v. Ontario College of Teachers 2015 ONSC 5969
DIVISIONAL COURT FILE NO.: DC-15-000758ML (Oshawa)
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
REILLY, NORDHEMER & CORBETT JJ.
BETWEEN:
HARPREET DUA and NANAK P. SINGH Respondents
– and –
ONTARIO COLLEGE OF TEACHERS, W. DOUGLAS WILSON and MICHAEL SALVATORI Appellants
REASONS FOR JUDGMENT
NORDHEIMER J.
Date of Release:
[^1]: It is unclear what the legal basis is for the claim by Mr. Singh. However, since that issue was not the subject matter of the appeal that is before us, I will make no further comment on it.