Malhotra v. Khokhar, 2016 ONSC 2620

minicounsel

CITATION: Malhotra v. Khokhar, 2016 ONSC 2620

DIVISIONAL COURT FILE NO.: 550/15 DATE: 20160418

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

BETWEEN:

ANJU MALHOTRA, SHAUN MALHOTRA, by his Litigation Guardian, SURESH MALHOTRA, RAJ CHOPRA, 1299253 ONTARIO INC., PREETI PUNCHHI, YASH PAL CHHABRA, GLOBAL FINANCIAL MANAGEMENT INC., GLOBAL INVESTMENT HOLDINGS INC., HARISH SETHI, VRINDA SETHI, NEIL SETHI, ARJUN JASUJA, SHUSHILA JASUJA and ANIL JASUJA

Plaintiffs

(Respondents)

– and –

ATIQ KHOKHAR, WASEEM KHOKAR, IMRAN KHOKAR, RANJIT KHOKAR, a.k.a. RANJIT MARWAH, IHSAN KHOKHAR, MASOOD ELAHI a.k.a. MAQSOOD ELAHI, MOHAMMED ZAFAR IQBAL, HAWTHORNE INVESTMENT GROUP LTD., HAWTHORNE BUSINESS CENTRE INC,. NIPISSING BUSINESS CENTRE INC., 1393282 ONTARIO LTD., DREAM HOME INVESTMENTS CORP., CLAIRE L. GRAHAM, JULIE JOCELYN NILES, NILES & ASSOCIATES PARALEGAL SERVICES INC., LORAMB & ASSOCIATES, UMA RAJKUMAR, operating as GRABASC & ASSOCIATES LEAGL SERVICES, WINSTON GAUNTLETT MATTIS and FIONA ANN DOCHERTY, DOMINION MORTGAGE CORPORATION, THE GRABASC GROUP INC., AAMIR MASOOD, VARUN MEDIRRATTA, THE HAWTHORNE INVESTMENT GROUP LTD., SAMIR KHAMISA, MEHNAZ KHOKAR and INDRA MEDIRATTA c.o.b. as SELENA CUSTOM HOMES

Applicants

COUNSEL:

George Gligoric, for the Respondents, Malhotra, 1299253 Ontario Inc., Chhabra & Global et al, and Jasuha et al.

Robin Squires, for the Defendants, Winston Gauntlett Mattis and Fiona Ann Docherty

HEARD at Toronto: April 18, 2016

M. LINHARES DE SOUSA J.

Background

1The motion in writing before me is brought pursuant to Rule 62.02 of the Rules of Civil Procedure, and seeks leave to appeal from the Order of Justice Dow dated October 5, 2015, which upheld the Order of Master Pope dated April 21, 2015.

2Briefly, the Applicants (Defendants) moved to dismiss the action for delay. Master Pope dismissed the actions of some unrepresented plaintiffs as they had filed no responding material to the motion and one of them stated the intention to discontinue his action. Master Pope dismissed the motion to dismiss for delay as it related to the Applicants (Defendants) who were the remaining plaintiffs.

3When the matter came before Justice Dow on Appeal, he found that the Master understood clearly the nature and extent of the facts and argument before her. He further found that the Master correctly stated the law and relied on the appropriate authority (Armstrong v. McCall, [2006] O. J. No. 2055) for the test to be applied in deciding whether to dismiss an action for delay.

4Justice Dow acknowledged that in her Reasons, the Master found that the Applicants (Defendants) had met the initial part of the test that the delay was inordinate, unexcused and hence unreasonable. As a result, the Master found that there was presumed prejudice which according to the correct legal test established by the jurisprudence, could be rebutted by the Plaintiffs, showing that despite the delay the Applicants/Defendants could still have a fair trial.

5Justice Dow concluded that in the analysis of this second stage of the test, the consideration of the presumed prejudice and determining whether the presumption of prejudice has been rebutted, the Master correctly considered all remaining relevant circumstances which Justice Dow lists at paragraph 9 of his reasons. He concluded that the test includes consideration of all relevant factors, as was done by the Master. In coming to this conclusion he relied on the case of Langenecker v. Sauve, 2011 ONCA 803.

6As a result Justice Dow concluded that the Master had applied the correct test and that the result did not constitute an error in law or exercise of the Master’s discretion on a wrong principle such that a palpable or overriding error has occurred.

Analysis

7I can find no error of law in Justice Dow’s dismissal of the appeal before him. Nor do I have any reason to doubt the correctness of his decision. A close reading of the Master’s Reasons show that she correctly stated the test to be applied and correctly applied it as was found by Justice Dow.

8After a detailed discussion of the history of the case, the Master found that there had been inordinate and inexcusable delay with the Plaintiffs failing to prosecute this action with due diligence during a period of approximately 6 years. It would be another 2 years before the matter was to be heard. As a result she found that there was a presumption of prejudice with the Plaintiff’s having the onus to rebut the presumption of prejudice.

9The case before the Master was not a case of case- specific proven actual prejudice. The Master found that, at least at this stage in the proceedings, there was no evidence to show actual prejudice such as the impossibility to locate a potential witness or the loss of important evidence.

10The Master concluded from her analysis of the nature of the case that the trial of the matter would be based equally on the documents and the recollection of individuals. The Master found that the Plaintiffs had rebutted the presumption of prejudice only regarding the preservation of documents which despite the delay were preserved in a timely and diligent fashion.

11As part of her decision as to whether the Plaintiffs’ had rebutted the presumption of prejudice, the Master considered all of the other relevant factors which she was able and obligated to do in this portion of the test. The consideration by the Master of “all of the relevant circumstances” was in the context of determining whether the presumed prejudice was rebutted by the Plaintiffs, or in other words to determine whether, despite the unreasonable delay, the Applicant/Defendants could still have a fair trial. The other relevant factors identified by the Master all spoke to the rebuttal of presumed prejudice and whether a fair trial could still be had.

12Those factors include such things as the nature of the action and its complexity, the retaining of new counsel who was steering the case in the right direction to advance the case to trial within a reasonable and expected time, the drastic step that a dismissal of an action posed and that it should not be done except in exceptional circumstances.

13Another factor considered relevant by the Master was the steps taken early in the action to preserve the documentary evidence. In Armstrong v. McCall, [2006] O. J. No. 2055 such a factor was considered important to its deliberations because as the Court found in that decision documents can be reviewed by witnesses to refresh his or her memory in a case where the passage of time may render memory frail.

14While different wording and form might have been used to better clarify the Master’s approach and analysis, I cannot conclude that her decision conflicts with decisions of other Courts dealing with the legal test to be applied on a motion to dismiss for delay.

Disposition

15For these reasons the motion for leave is refused.

Costs

16I have had an opportunity to consider the parties’ written cost submissions. I see no reason why the costs should not follow the cause in this motion. The Plaintiffs/Respondents are awarded their costs of the motion that I fix in the amount $4,291.74 inclusive of disbursements and HST.

M. LINHARES DE SOUSA J.

Date of Reasons for Judgment: April 18, 2016

Date of Release: April 22, 2016

CITATION: Malhotra v. Khokhar, 2016 ONSC 2620

DIVISIONAL COURT FILE NO.: 550/15 DATE: 20160418

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

Plaintiffs

(Respondents)

– and –

Applicants

ORAL REASONS FOR JUDGMENT

M. LINHARES DE SOUSA J.

Date of Reasons for Judgment: April 18, 2016

Date of Release: April 22, 2016

Malhotra v. Khokhar, 2016 ONSC 2620

Case Summary

Background

Analysis

Disposition

Costs

Malhotra v. Khokhar, 2016 ONSC 2620

Case Summary

Background

Analysis

Disposition

Costs