CITATION: Jodha v. Dineen, 2017 ONSC 298

DIVISIONAL COURT FILE NO.: 671/15 DATE: 20170111

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

BETWEEN:

RONNIE JODHA Appellant

– and –

PAUL ANTHONY DINEEN Respondent

Glenn Bogue, for the Appellant Daniel Bernstein and James Gibson, for the Respondent Dineen Adam Pantel, for the respondents Tracy Warne and Ricketts, Harris LLP

HEARD at Toronto: January 11, 2017

SWINTON J. (Orally)

Introduction

1The appellant appeals from the decision of Master Dash dated November 20, 2015 in which he refused to set aside an administrative dismissal for delay and refused to add further defendants to the action.

Standard of Review

2The decision of the Master is discretionary and entitled to deference. An appeal court will not intervene unless there is an error of legal principle or a palpable and overriding error of fact (Wellwood v. Ontario Provincial Police, 2010 ONCA 386 at para. 28).

3The appellant raises an issue of bias in his factum and states that a transcript was ordered but not found. Bias is not raised as a ground in the Notice of Appeal, and it is too late to raise the issue now. In any event, the allegations in the factum, read in light of the Master’s detailed and careful reasons, would not support a finding of reasonable apprehension of bias, especially given the presumption of judicial impartiality.

Analysis

4The Master properly applied the four step Reid test. He found that the appellant did not satisfy three of the four factors:

(1) The appellant failed to adequately explain the litigation delay, as the medical evidence did not support the proposition that he was unable to pursue the litigation. The Master found that the appellant made a deliberate decision not to pursue the litigation.

(2) The appellant failed to prove that the dismissal was a result of inadvertence.

(3) The appellant failed to rebut the presumption of prejudice arising from the fact that the limitation period had passed at the time of the dismissal. The Master also found no evidence of any conduct or steps by the defendants that would be inconsistent with the presumption of prejudice.

5Ultimately, the Master concluded that it would not be just in all the circumstances to set aside the dismissal order, stating at paragraph 60 of his reasons:

The plaintiff has failed to meet three of the four Reid factors – explanation of delay, inadvertence in missing the deadline and demonstrating an absence of prejudice. His affidavit evidence is sadly deficient and his cross-examination was particularly effective in dismantling his meagre explanation as to delay. In considering all factors on a contextual basis, but particularly the deliberate decision not to pursue the litigation because the plaintiff had lost interest in the litigation and was fed up, and in weighing the public interest in promoting timely resolution of disputes and finality of litigation as against the public interest in deciding actions on their merits and granting an indulgence when appropriate, it would not be just in all the circumstances herein to set aside the dismissal of the action.

6There is no merit to the appellant’s argument that the Master erred in not setting aside the dismissal just because the motion to set aside was promptly brought. That is one factor to be considered in the total context (see Habib v. Mucaj, 2012 ONCA 880 at para. 6). The Court in Habib stated that a deliberate decision not to advance the litigation will usually be fatal.

7The Master made findings of fact that are entitled to deference on appeal. There was ample evidence to support his findings and the appellant has not identified any palpable and overriding error of fact.

8The appellant argues that I should exercise equitable jurisdiction and allow him to proceed. However, I am bound by the legal principles governing an appeal from the discretionary order of a Master.

9I see no basis for appellate intervention in the Master’s decision not to set aside the dismissal, as the appellant has not shown the Master made an error in law or a palpable and overriding error of fact.

10The appellant also seeks to appeal the costs order. He has not demonstrated any error in principle by the Master nor that the costs order is plainly wrong. Therefore, I would not grant leave to appeal the costs order.

11Finally, I need not deal with the other ground of appeal based on the Master’s refusal to add further defendants, given my determination with respect to the set aside appeal.

12Accordingly, the appeal is dismissed.

COSTS

Costs

13I have endorsed the Appeal Book and Compendium of the Appellant as follows: “For oral reasons delivered today, appeal is dismissed. Costs on a partial indemnity basis fixed at $6,000.00 to Dineen and $4,000.00 to Ricketts, Harris LLP and Warne, amounts that are fair and reasonable for an appeal of this type.”

___________________________ SWINTON J.