Court File and Parties

CITATION: Gilchrist v. Meraw, 2016 ONSC 1645

DIVISIONAL COURT FILE NO.: 281/15

DATE: 20160307

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: SCOTT Gilchrist and 1744782 Ontario Inc, Plaintiffs/Appellants

AND:

MATTHEW MERAW, Defendant/Respondent

BEFORE: Thorburn J.

COUNSEL: Rahul Keserwani, for the Plaintiffs/Appellants

Robert Wilson, for the Defendant/Respondent

HEARD at Toronto: March 7, 2016

ENDORSEMENT

REQUEST FOR RELIEF

[1] A clerk of the Small Claims court dismissed this action for delay. An Order was issued by a Deputy Judge of the Small Claims court confirming the dismissal for delay.

[2] The Appellant now seeks to set aside the Order dismissing this action for delay.

STANDARD OF REVIEW

[3] An Order dismissing an action for delay is a discretionary order which is entitled to deference on appeal.

[4] A decision will be interfered with only if the Court made an error of law, applied the wrong principles of law, or misapprehended the evidence such that there is a palpable and overriding error. (Zeitoun v. Economical Insurance Group, [2008] CarswellOnt 2576 (Ont. Div. Ct), aff’d (2009) 2009 ONCA 415, 96 O.R. (3d) 639).

[5] A party seeking to set aside a dismissal Order must address the following four issues:

i. the litigation delay;

ii. inadvertence in missing the deadline;

iii. whether the motion to set aside was brought promptly; and

iv. whether the Defendant will suffer prejudice.

A contextual approach should be taken such that the court should “consider and weigh all relevant factors to determine the order that is just in the circumstances.” (Marche d’Alimentation v. Giant Tiger 2007 ONCA 695, [2007] O.J. No. 3872.)

THE APPELLANT’S POSITION

[6] The Appellant claims the delay was due to the fact that the Respondent was difficult to serve (and thus it took six months). Thereafter, in November 2013 the Appellant fell and was seriously hurt, his counsel was hospitalized in March 2014, and the Court Office failed to serve his counsel with the new date after the March 2014 date was adjourned, as Ordered by the Court.

[7] Deputy Judge Ashby made an error of law in failing to consider the context of the delays, and the merits of the claim. As such, the order should be set aside.

THE RESPONDENT’S POSITION

[8] The Respondent claims the Appellant has failed to satisfy the court that he at all times maintained the intention to proceed with the claim and has adequately explained the delay. In particular:

i. there is no affidavit from counsel;

ii. there is no complete chronology of the steps taken to advance the litigation;

iii. the Tiwari affidavit (filed in support of the motion to set aside the Clerk’s Order returnable on March 19,2015) contains conclusory, unfounded statements; and

iv. the affidavit regarding the Appellant’s health issues are vague and unsupported by documentary evidence;

as required by the court. (See Dunn v. Best Built Doors Inc. (2011) 3 C.L.R. (4th) 207, 203 A.C.W.S. (3d) 629, (Master Muir)

[9] He disputes the assertion that the Appellant has outlined a meritorious claim as neither side filed evidence on the merits.

[10] The Respondent claims he has suffered actual prejudice as the promissory note was made on November 7, 2012 and contains a 2 year limitation period.

[11] The Respondent claims there is no contextual element that would warrant setting aside the Order to dismiss the claim.

ANALYSIS OF THE FACTS AND CONCLUSION

[12] A Statement of Claim was issued on February 13, 2013 alleging non-payment of monies owing pursuant to a promissory note.

Service Delays

[13] The Claim was served on July 26, 2013. The Appellant claims this is because the Respondent was difficult to serve. (The documents show 4 futile attempts at service during the 6 month period).

[14] The Appellant did not note the Defendant in default 20 days after service was effected (on August 16, 2013). The Appellant concedes that he took no action for 18 days after the 20 day period had expired. The Appellant says he did not note the Respondent in default as he expected the Statement of Defence was coming.

First Order Dismissing for Delay

[15] The Clerk made an Order dismissing the action for delay on September 4, 2013, pursuant to Rule 11.01(1) of the Small Claims Court rules, O. Reg. 258/98 under Courts of Justice Act, R.S.O. 1990, c. C.43.

[16] At this point, the Appellant could and should have been on notice of the importance of providing an adequate explanation for the delay and bringing on the motion to set aside the Clerk’s Order expeditiously.

Motion to Set Aside the Clerk’s Order of Dismissal

[17] The Appellant brought a motion to set aside the dismissal returnable on January 16, 2014. The motion was adjourned to March 6, 2014 “to permit the Plaintiff [Appellant] to file material explaining service Feb 2013 + July 2013.” (The Respondent did not attend.)

[18] On March 6, 2014, the motion was adjourned because the Appellant’s solicitor was taken to hospital. The matter was to be adjourned to the first available date.

[19] The motion was adjourned to April 10, 2014. The Order provided that “Plaintiff’s counsel to be notified”. They were not. The Order was however sent to the Appellant personally.

Second Order Dismissing for Delay

[20] The Appellant provided no evidence as to when counsel for the Appellant found out that the motion was adjourned to April 10, 2014.

[21] The Claim was struck on April 10, 2014 as no one attended.

Motion to Set Aside Orders of Dismissal

[22] The matter was not rescheduled until March 19, 2015 (10 1/2 months after the Order striking the Claim for failure to attend the motion on April 10th, 2014).

[23] On March 19, 2015 the motion to set aside the dismissal was adjourned on consent as the Defendant attended and filed materials late. The Appellant agreed to accept the documents but sought time to review them.

THE DECISION APPEALED FROM

[24] On May 4, 2015, the motion to set aside was denied by the Small Claims Court judge, Deputy Judge Ashby.

[25] The Small Claims court judge applied the test set out in Marche d’Alimentation v. Giant Tiger 2007 ONCA 695, [2007] O.J. No. 3872 regarding dismissal for delay. He held that that there were “two problems with service” of the Statement of Claim that were “explained in part”.

[26] The focus of the judge’s concern was the 10 1/2 month delay between April 10, 2014 and March 19, of 2015. He held that,

“A new motion was issued but not until March 2015 returnable on March 19, 2015 … the Plaintiff suffered a serious accident in November 2013 but there is no explanation as to why the Plaintiff through his counsel waited almost a year before issuing the second motion. Given the earlier inconsistencies over service and the delay described I am not satisfied this test has been met. The most recent motion was not as prompt as it should have been as described above. I am satisfied no actual prejudice has been suffered by the defendant. The claim was issued within the 2 year limitation period and reinstatement of this action is not a new action. As the 4-part test has not been met the motion is dismissed but in the circumstances without costs.”

[27] For these reasons, he did not accept that there was a reasonable explanation for the delay and dismissed the motion to set aside the Order dismissing the action.

Conclusion

[28] As noted above, an Order dismissing an action for delay is a discretionary order which is entitled to deference on appeal. Such a decision will be interfered with only if the Court made an error of law, applied the wrong principles of law or misapprehended the evidence such that there is a palpable and overriding error.

[29] For the reasons that follow, I am unable to find such an error in the reasons of Deputy Judge Ashby.

[30] He articulated the correct test. He held that the motion brought after the claim had been struck by the Clerk and after it had again been struck for failure to appear, was not brought within reasonable time.

[31] He noted the context of the delay including:

i. a 6 month delay in serving the Respondent and only 4 futile attempts to serve him, the failure to take any action after the time for filing a Defence had expired and for 18 days thereafter, and the failure to explain why it took almost a year after the Claim was struck in March 2014 to bring back a motion to set aside the Order dismissing the action; and

ii. the explanation offered by the Appellant for the delay between April 10, 2014 and March 19, 2015. The Appellant states that,

“In November 2013 I had an accident wherein I fell from a scaffolding during the renovation of my home and suffered 16 broken bones including skull and brain injuries, I am currently in rehabilitation and suffer from dizziness and inability to focus or concentrate on business matters.”

[32] No medical evidence was provided regarding the Appellant’s condition.

[33] On the evidence available on this Appeal, the delay in bringing the motion after April 2014 and before March 2015 is not explained by the Appellant’s accident, as the Appellant had already provided instructions to his counsel to bring a motion to overturn the Order striking the Claim prior to March 2014 and counsel for the Appellant conceded that there were no new issues regarding the motion.

[34] Moreover, the Appellant provided no information as to:

i. the particulars of the Appellant’s condition;

ii. what further instruction counsel needed as he had already obtained instructions to move to set aside the dismissal order;

iii. what efforts counsel took to contact his client during the 10 ½ month period if further instruction was needed; and

iv. what efforts counsel for the Appellant made to contact the court office to find out what happened to the motion scheduled for March 2014, after counsel had not received notice of a new date, although it had been adjourned “to the next available date”.

[35] Without this information, the motions judge made no error of law or palpable and overriding error of fact, under the circumstances. He correctly determined that in the face of two Orders dismissing the action, the matter should have been brought as soon as possible. Unfortunately it was not.

[36] For these reasons the Appeal is denied.

[37] The Respondent is awarded costs of this Appeal in the amount of $3,000.00 inclusive of $510.48 in disbursements.

Thorburn J.

Date: March 7, 2016