CITATION: Iacolucci v. TD Waterhouse Canada Inc., 2018 ONSC 1027

DIVISIONAL COURT FILE NO.: 211/17 DATE: 20180214

ONTARIO SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

JOSEPH IACOLUCCI and ANNA IACOLUCCI

Plaintiffs/Appellants

– and –

TD WATERHOUSE CANADA INC. and CARRIE ANDERSON

Defendants/Respondents

Alfred J. Esterbauer, for Lissaman & Associates, Counsel for the Plaintiffs/Appellants

Gillian Dingle and Aria Laskin for the Defendants/Respondents

HEARD at Toronto: December 19, 2017

SPIES J.

Overview

1This is an appeal by the Plaintiffs, Joseph Iacolucci and Anna Iacolucci (the "Appellants"), from the Order of Master Wiebe dated April 4, 2017 (the "Order") dismissing the Appellants' motion to set aside the Registrar's administrative dismissal order dated November 20, 2013 (the "Dismissal Order").

2This action was commenced in 2007 but never proceeded beyond the documentary discovery phase. The Appellants seek to recover more than $1,600,000.00 in damages they allege were caused by the conduct of the Defendants, TD Waterhouse Canada Inc. ("TD Waterhouse") and Carrie Anderson ("Anderson"), as the Appellants' investment advisors (collectively, the "Respondents").

3The Appellants, who are in their late 70’s, have been long-standing clients of the Toronto-Dominion Bank ("TD"), and its successors, since 1967. At the suggestion of an account manager at TD in May, 2001, the Appellants began utilizing the services of the Respondents as investment advisors. The Appellants allege that their investment goals were conservative and risk-averse, with the paramount objective of capital maintenance.

4Commencing in 2003, the Appellants allege that the Respondents improperly recommended that they invest in certain investment vehicles operated by Norshield Financial Group ("Olympus Funds"). Unbeknownst to the Appellants, the Olympus Fund investments were risky hedge funds which they allege were totally inappropriate for them, given their low risk tolerances and stated objectives.

The Issues

5It is the position of the Appellants that contrary to the Order, the manifestly just order in the circumstance of this case was to allow the action to be restored, so that it could be determined on its merits. It is their position that the Dismissal Order was a result of inadvertence on the part of Appellants' counsel, Hugh Lissaman of Lissaman & Associates who suffered from health issues for a significant period of the relevant time.

6The Appellants allege that the learned Master made palpable and overriding errors in his findings of fact, and made errors in principle in failing to consider and give due weight to the relevant circumstances present in this case. In particular the Appellants allege that the Master failed to give due weight to a number of significant contextual factors, and mischaracterized the evidence in numerous respects, including:

a. there was no evidence on the motion that the Respondents' ability to have a fair trial was prejudiced by any litigation delay;

b. the Respondents were complicit in and acquiesced in the delay, and should have been estopped from raising delay that they had waived in consenting to the timetables;

c. the action is primarily a documents-based case in which one particular class of investment in Olympus Funds is at issue, rather than general management of the Appellants' portfolio;

d. the severe prejudice to the Appellants in losing their right of action, when restoring the action would not have caused any injustice to the Respondents, whose ability to have a fair trial was not impaired; and

e. failing to give due weight to the evidence of inadvertence led by the Appellants, and the fact that they were unaware of any procedural concern and reasonably relied on their counsel to effectively progress the matter.

7The Appellants submit that these erroneous findings of fact and inferences drawn by the Master, resulted in the Master being unable to undertake a reasonable contextual assessment of the case. The Appellants argue that an appropriate consideration of the circumstances in this case would have made it evident that the manifestly just order was to allow the motion and restore the action.

8The position of the Respondents is that in reaching his decision to dismiss the motion, the Master properly applied the contextual approach to the facts before him. He applied the Reid factors and found the Appellants had failed to meet any of them. He explicitly noted that he was guided not only by the Reid factors, but by consideration of all relevant contextual factors and consideration of the "overall just result in the context of this case." On the evidence before him, the Respondents submit that the Master reasonably concluded that dismissal was the just result.

9The Respondents submit that a master's decision to dismiss a motion to set aside an administrative dismissal should not be overturned unless it was made on an erroneous legal principle or includes a palpable and overriding error of fact. None of the errors alleged by the Appellants meet this stringent standard. Instead, the Respondents argue that Appellants are attempting to re-litigate their case in front of this Court, and invite this Court to engage in its own assessment of the evidence. They submit that I should decline to do so because the Master's decision was reasonable, and is entitled to deference. The appeal should be dismissed.

Jurisdiction and Standard of Review

10The refusal to set aside an administrative dismissal order and restore an action is a final order. An appeal from a final order of a master lies to a single judge of this Court, without leave.

11The motion was brought pursuant to rule 37.14, which provides that the court may set aside an administrative dismissal order "on such terms as are just." As such, it was a discretionary order and is entitled to deference on this appeal.

12There is no dispute as to the standard of appellate review that applies in this case. For alleged errors of fact the Appellants must establish that there has been a palpable and overriding error. Errors of law are subject to a standard of correctness. Questions of mixed fact and law, which involve applying a legal standard to a set of facts, are subject to a standard of palpable and overriding error, unless the master made some extricable error in principle with respect to the characterization of the standard or its application, in which case the error amounts to an error of law.

13It is an error in principle, and consequently an error of law to which the correctness standard applies, for a master, when hearing a motion to set aside a dismissal order, to fail to take a contextual approach and weigh all the relevant factors and all of the circumstances of the case, including the conduct of both parties, in order to arrive at a just result.¹

The Facts

14The reasons for decision of the learned Master (the “Reasons”) set out a very detailed chronology of the action. At the outset of the hearing of this appeal the parties agreed the Master’s chronology is accurate. The only factual issue appears to be who was first in serving an affidavit of documents. Accordingly, I need not refer to the detailed facts set out in the facta and I will simply rely on the Reasons and some of the key dates where necessary.

15Prior to the motion before the Master, the Appellants were represented by Mr. Lissaman and he dealt with Respondents' counsel, Laura Paglia of Torys LLP.

16The main issue that caused delay in this action proceeding is the fact that Ms. Paglia took the position at the time of the exchange of documents that she required production by the Appellants of the account opening documents and monthly statements from third party brokers that the Appellants dealt with in the same time period as their accounts with the Respondents (the "Third Party Documentation").

17Mr. Lissaman has testified that because he had known Ms. Paglia for some time and they had been successful at working things out together in other cases, he did not raise an objection to her position at that time. Whatever his motives were, the evidence is clear that at no time did Mr. Lissaman object to Ms. Paglia’s position that she would not schedule discoveries until the Third Party Documentation was produced. In my view, given that the Appellants’ stated investment objectives and investment experience would be a central issue in this action, the Third Party Documentation is clearly relevant.

18The Appellants assert that they endeavoured to obtain the Third Party Documentation but were not successful. I will come back to this. The fact the Third Party Documentation was not produced by the Appellants meant that the discoveries were never scheduled and so in the face of each status notice they received, Mr. Lissaman and Ms. Paglia consented to a new timetable setting out when the action would be set down for trial. At no time did Ms. Paglia express any concern about the pace of the litigation, the delay or suggest the delay might prejudice her clients.

19Each time Mr. Lissaman's office attempted to schedule discoveries Ms. Paglia maintained that the matter was “not ready to proceed to discovery" because she required the Third Party Documentation related to the Appellants' "prior and contemporaneous investment experience." Mr. Lissaman made no objection or any attempt to have the issue of the relevance of these documents dealt with by a master.

20In late 2012 Ms. Paglia provided a form of authorization and direction that would enable her to make direct contact with the relevant dealers to obtain the Third Party Documentation should the Appellants continue to experience difficulty in obtaining these documents. The Appellants executed the applicable authorizations and directions and provided them to Ms. Paglia in June 2013.

21One of the third party brokers from which documents were being requested; Echlin Investments (Echlin), corresponded with Ms. Paglia on September 24, 2013, which letter was forwarded to Mr. Lissaman. Echlin responded that Ms. Paglia should check with the Appellants as they should have their copies of the documents. They did not say whether or not they still had their file or whether they would retain it. Mr. Lissaman advised Ms. Paglia that as the Echlin documents were not in the Appellants' possession, a motion to compel production from a non-party should be considered. Neither he nor Ms. Paglia took steps to bring such a motion.

22Unbeknownst to Mr. Lissaman and Ms. Paglia, the motion that had been filed by Mr. Lissaman "over the counter", on consent, for what would have been the fifth extension (the “2013 Timetable”) was reviewed by Master Dash. In an endorsement made by Master Dash on July 14, 2013 (the “July endorsement”), he directed that an in-person case conference be held on August 19, 2013.

23The July endorsement of Master Dash was not provided to either counsel. As a result, no one attended the case conference on August 19, 2013 and Master Dash dismissed the motion to amend the timetable, but without prejudice to the parties moving again with a more fulsome explanation, together with specified discovery and mediation dates. He extended the deadline for the dismissal of the action to August 30, 2014. There is no evidence that this endorsement was delivered either.

24The Dismissal Order of November 20, 2013 appeared in Ms. Paglia’s file but there is no evidence that this order was delivered to Mr. Lissaman. Mr. Lissaman has testified that he was not aware of the Dismissal Order until September 2015. I will come back to this as the Master found otherwise.

25In the fifth timetable that was sent to Master Dash, the action was to be set down by July 2014. As the Master noted, there is no evidence that any attempt was made by Mr. Lissaman to submit a sixth timetable to the court. Mr. Esterbauer, counsel for the Appellants, suggested that since the order confirming the 2013 Timetable was never received by Mr. Lissaman’s firm the new date was never diarized. The only evidence that supports this theory is that when cross-examined Mr. Lissaman stated that he was not involved “with those sorts of issues” and so it appears that Mr. Lissaman left these tasks to other members of his firm. The explanation however is far from clear.

26Beginning in the latter half of 2013, Mr. Lissaman began treatment for health issues that negatively affected his ability to fully attend to the demands of his practice. Mr. Lissaman started experiencing difficulties with stress, sleep, memory and concentration. These symptoms got progressively worse, to the point where Mr. Lissaman sought medical attention beginning in November, 2013. Mr. Lissaman was diagnosed with severe sleep apnea, depression and anxiety. He was referred to a specialist for treatment and took some time away from his office in February, 2014. Although the sleep apnea was successfully remedied, Mr. Lissaman continued to receive regular treatment and medication.

27The Appellants continued to look for the Third Party Documentation into 2015, some of which they were successful in locating. They were able to produce the full trading records that the Appellants had with Scotia McLeod between 2001 and 2006 but, so far, the account opening documents have not been produced. It is unknown at this stage if they are still available. With respect to Echlin, some limited trading documents have been produced but, again, the account opening documentation has not been produced. The Appellants also had an account with BMO Nesbitt Burns and the account opening documentation in the summer of 2000 for that account has been produced. Unfortunately neither party has put any Third Party on notice to ensure that their files are maintained.

28It is significant that the Respondents never communicated any complaint regarding the pace of the litigation. Each time Ms. Paglia agreed to a new timetable without complaint or asserting that the Respondents were going to or might suffer prejudice.

29There was some communication between counsel in late January 2014. John Fabello of Torys LLP, who had assumed carriage of the file from Ms. Paglia, sent an email to Mr. Lissaman attaching a copy of the Dismissal Order, on January 28, 2014, following a voice mail message from Mr. Lissaman. A voice message was left by Mr. Fabello for Mr. Lissaman at the time as well, referring to the Dismissal Order. Mr. Lissaman has testified that he has no recollection of these communications, which came at a time when he was most severely afflicted with his health issues.

30In March 2014, Mr. Lissaman contacted Mr. Fabello to discuss the action. Counsel exchanged emails on scheduling time for this discussion, with Mr. Fabello suggesting a date and time, and requesting that Mr. Lissaman send him a calendar invite. The email correspondence between Mr. Lissaman and Mr. Fabello continued the same email chain that included Mr. Fabello's January 28, 2014 email but it does not appear that the Dismissal Order was attached. No calendar invite was sent, no discussion occurred, and Mr. Lissaman did not contact Mr. Fabello regarding the case again until August 2015, almost a year and a half later.

31A fact not referred to in the detailed Reasons of the Master is that a supplementary affidavit of documents was provided by Mr. Lissaman on August 27, 2015 to Mr. Fabello. In response, Mr. Fabello informed Mr. Lissaman by letter dated September 1, 2015 (the “September 2015 letter”) that the action had been dismissed for delay. The fact Mr. Lissaman provided a supplementary affidavit of documents to Mr. Fabello at this time is strong evidence that corroborates his evidence that he was previously unaware of the Dismissal Order.

32Once Mr. Lissaman became aware of the Dismissal Order, the matter was reported to the Appellants. Mr. Lissaman also reported this matter to his professional liability insurer ("LawPRO") who appointed Mr. Esterbauer to investigate and proceed with a motion to restore the action.

33Initially, a request was made for consent to restore the action, which was made in an email on February 23, 2016. The request for consent was not rejected by the Respondents, but rather, a dialogue began, with a view to providing information and documents that would enable the Respondents to make a decision regarding the request for consent.

34The Respondents have no issue with steps that took place in respect of the motion to restore the action following February 23, 2016. Much of that time was devoted to the dialogue between counsel, and the Respondents formulating their position which was only communicated in early November, 2016, that the motion would be opposed. They do submit, however, that Mr. Lissaman did not proceed expeditiously after he received Mr. Fabello’s September 2015 letter.

35The period of delay from the Dismissal Order; November 20, 2013, to the motion to restore this action before Master Wiebe on February 23, 2016, when discussions began between counsel, was approximately 2¼ years.

36The Order dismissed the Appellants' motion, and the Master made numerous findings in his Reasons that the Appellants respectfully submit were erroneous, including:

1. the learned Master concluded that the Appellants had not provided an adequate explanation for the delay prior to August 30, 2013;

2. the Master concluded that the failure of the Appellants to meet the set down deadline was deliberate;

3. the Master found that there was unjustified delay in bringing the motion to set aside the Dismissal Order;

4. the Master concluded that the Appellants were not able to establish that the Respondents were not prejudiced by the delay in the case;

5. that the Appellants had failed to fulfill "their undertaking to obtain Third Party Documentation", and

6. that the Appellants' conduct brought the administration of justice into disrepute.

Analysis

The Test for Setting Aside an Administrative Dismissal Order

37The test for setting aside administrative dismissal orders has evolved. Initially, a moving party was required to satisfy the four "Reid" factors² in order to be successful:

1. provide an adequate explanation for the litigation delay;

2. establish inadvertence in missing the deadline;

3. demonstrate that the motion to set aside the dismissal order was brought reasonably promptly; and,

4. establish that there was no significant prejudice to the defendant in presenting its case at trial as a result of the plaintiff's delay.

38In a 2007 unanimous decision, the Ontario Court of Appeal specifically overruled this unduly rigid approach.³ The Court directed that a contextual approach be employed, which includes an examination of the Reid factors and other relevant circumstances, in order to arrive at the just result. This was confirmed by the Ontario Court of Appeal in 2015⁴, where the Court held, at para. 21:

Requiring a party moving to set aside the order dismissing its action for delay to satisfy each of the four factors is too rigid an approach… Instead, the judge must adopt an overall contextual approach and, as well, take factors unique to the case into consideration. The factors are not an end in themselves. Rule 37.14(2) requires that a judge arrive at a just result in the particular circumstances of the case.

39In setting aside a Registrar's dismissal order, the Court of Appeal in HB Fuller established and reiterated its policy for preferring merits determinations, as opposed to formulaic adherence to rigid timelines,⁵ as follows:

The factors that guide the court's choice between ending the plaintiff's action before trial and forcing the opposite party to defend the case despite the delay require a judge to resolve the tension between two underlying policies. The first is that civil actions should be decided on their merits. The second is that civil actions should be resolved in a timely and efficient manner in order to maintain public confidence in the administration of justice.

When reviewing a registrar's dismissal for delay under the former rule 48.14, the weight of authority from this court has leaned towards the first policy consideration. As Laskin J.A. stated in Hamilton (City), at para. 20, quoting with approval the motion judge's comment"[T]he court's bias is in favour of deciding matters on their merits rather than terminating rights on procedural grounds." While failure to enforce the rules may undermine public confidence in the capacity of the justice system to process disputes fairly and efficiently, as Sharpe J.A. observed in 1196158 Ontario Inc., at para. 19, nonetheless:

[P]rocedural rules are the servants of justice not its master ... We should strive to avoid a purely formalistic and mechanical application of time lines that would penalize parties for technical non-compliance and frustrate the fundamental goal of resolving disputes on their merits. [T]he Rules and procedural orders are construed in a way that advances the interests of justice, and ordinarily permits the parties to get to the real merits of their dispute. [Emphasis added]

The court's preference for deciding matters on their merits is all the more pronounced where delay results from an error committed by counsel. As the court stated in Habib, at para. 7"[O]n 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." In Marché, Sharpe J.A. stated, 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."

40The Divisional Court's decision in Micallef v. Dodig⁶ is also instructive on the application of the required contextual approach. In that case the court noted that, even though the master had undertaken a thoughtful and careful review of the Reid factors, the master nevertheless erred by failing to consider the matter in its full context and failing to make the just order to restore the action:

31 The Master did thoroughly examine the four so-called Reid factors, and concluded that the absence of prejudice was outweighed by the insufficiently explained delay, and that the motion should be dismissed. Only then did he turn his mind to an examination of the context. When he did this, he concluded that the fact that the case was subject to case management supported his conclusion, and that there was no merit to the Plaintiff's argument that the Defendant was acting improperly in resisting the motion. What he did not do was to step back and answer the ultimate question that resides at the core of the exercise: what order would do justice in all of the circumstances. Had he done so, I am confident that he would have come to a different decision. [Emphasis added]

41The contextual approach was reaffirmed by the Ontario Court of Appeal in Finlay v. Van Paassen.⁷ In that case, a balanced consideration of the relevant factors excused a more than two-year delay after a Registrar's dismissal order as it was in the interests of justice to do so. In that case however, the reinstatement motion was preceded by the "reasonably prompt" progression of the action up to that point, which is not this case.

42In Kerr v. CIBC World Markets,⁸ which involved a related Rule 48 issue of restoring an action to the trial list, Justice Newbould of this Court overturned an order refusing to restore the action, even though there had been findings of intentional delay and presumed prejudice. Justice Newbould held that the Court must consider above all, whether in context of the particular case, it would be fair to dismiss the action.

43While the Reid factors and common contextual factors are relevant, prejudice has been identified in many cases, as the "key consideration." If a defendant can still have a fair trial, the manifestly just order is to determine an action on its merits; see Chiarelli v. Wiens,⁹ Micallef¹⁰ and Finlay.¹¹

Alleged Errors of Fact and Law by the Master

44The Appellants submit that the Master erred in drawing incorrect factual conclusions and in failing to consider and give due weight to a number of important contextual factors as follows. I will consider each issue in turn.

(a) Findings on the first two Reid Factors – the Delay

45The Appellants submit that the Master erred in his assessment of the evidence and had he undertaken an appropriate contextual assessment of the conduct of the litigation, he would have concluded that the Appellants did have an acceptable explanation for the delay. They submit that there was evidence before the Master upon which he could reasonably conclude that the Appellants' failure to meet the deadline to set the matter down for trial was inadvertent.

46The Appellants submit that the Master's finding that missing the deadline in this case was deliberate, is perverse given Mr. Lissaman’s health issues for some period of time, and most acutely, from the latter part of 2013 and continuing thereafter. The Appellants also submit that Mr. Lissaman's evidence that he did not appreciate that the action had been administratively dismissed until September 2015 should have been accepted.

47The Master concluded at para. 49 of his Reasons that the Appellants delayed this case prior to August 30, 2013 and there is no reason to disturb that finding. There is no doubt that much of the delay in prosecuting this action prior to Mr. Lissaman’s health reasons was as a result of Mr. Lissaman’s failure to prosecute this action very diligently. It is clear from the chronology that he would take one or more steps to advance the action and then the file would fall dormant for varying periods of time with no action being taken on his part. It also appears that the Appellants were not very diligent in following up on the Third Party Documentation in that time frame, or at least there is not much evidence on the efforts they did make. However, this was also the time frame when the Respondents were consenting to new time tables by which the action was to be set down, which as I will come to is a relevant factor to be considered in this matter.

48It was the Master’s further conclusions that drove his decision to find that there had not been an acceptable explanation for the delay and that the Appellants had abandoned the action. The Master concluded that Mr. Lissaman became aware of the Dismissal Order when Mr. Fabello communicated with him in January 2014. The Master did acknowledge that in this timeframe Mr. Lissaman was suffering from significant medical issues. Furthermore, the parties agree that Mr. Lissaman left a voicemail message for Mr. Fabello and Mr. Fabello returned the call and left a voicemail message for Mr. Lissaman but that they did not have an actual conversation. Mr. Fabello then sent an email to Mr. Lissaman attaching the Dismissal Order on January 28, 2014 (the “January email”). Mr. Lissaman has testified that he has no recall of receiving that email or the Order. Mr. Fabello continued this chain of emails in a further email but it appears that the Dismissal Order was no longer actually attached.

49During Mr. Lissaman's cross-examination, he was asked to produce the metadata associated with the January email that would show whether and when the email was opened. This request was taken under advisement, but was never answered. The Master, at paragraph 57 of his Reasons, drew an adverse inference from this and concluded that Mr. Lissaman in fact opened and read the email and the Dismissal Order on January 28, 2014. The Master went on at paras. 58-59 to find that while Mr. Lissaman was suffering from his health condition at this time “a seasoned lawyer like Mr. Lissaman would have and should have, known enough to at least get another lawyer to bring the necessary motion in a timely way … if Mr. Lissaman had instruction from the plaintiffs to move the case forward.”

50I have some difficulty with this finding of the Master as to what Mr. Lissaman would have done despite his significant health issues. In my view even if the email was opened, it may be that because of Mr. Lissaman’s health issues he did not deal with it and did not appreciate its significance. That said the Appellants did not argue that this was not a conclusion that the Master could have reasonably arrived at based only on this evidence. It is clear that this is the reason for the Master’s conclusion that he did not believe Mr. Lissaman that he did not know about the Dismissal Order until September 2015.

51The Master, however, made no reference to the letter Mr. Lissaman wrote to Mr. Fabello on August 27, 2015 when he sent Mr. Fabello the Appellants’ supplementary affidavit of documents. This action strongly suggests that Mr. Lissaman still believed that the action was “alive” and that he and the Appellants had not in effect abandoned the action. The Master failed to consider this evidence and the supplementary affidavit of documents and the significance of it, which in my view was critical evidence. Had he considered this evidence I expect he would have come to a different conclusion as to when Mr. Lissaman became aware of the Dismissal Order and accepted his evidence that it was not until September 2015. This would have materially altered his analysis of how to decide the motion. He certainly could not have reasonably concluded that Mr. Lissaman had deliberately ignored the Dismissal Order.

52The Appellants submit that the deadline that was missed was the August 19, 2013, when the parties were to appear before Master Dash. It was, in fact, missed by all parties, since there was an agreement to consent to the 2013 Timetable. The extension was submitted to the court in a regular fashion, and no party discovered that Master Dash had directed a case conference, instead of endorsing the 2013 Timetable. On the evidence, there is absolutely no doubt that missing the August 30, 2013 deadline that resulted in the administrative dismissal in 2013, was as a consequence of inadvertence and/or mistake.

53The Master noted in paragraph 53 of his Reasons that no further timetable was requested by Mr. Lissaman in the summer of 2014 which is the case. There is no clear explanation for why Mr. Lissaman did not attempt to obtain a sixth timetable on consent before July 2014, which was when the 2013 Timetable provided that the action be set down. It appears that Mr. Lissaman left these tasks to other members of his firm and Mr. Esterbauer speculated that because the order of Master Dash was never received that the new date was never diarized. The only evidence that supports this is that on cross-examination Mr. Lissaman stated that he was not involved “with those sorts of issues”. There is no other evidence explaining this lapse but as I have already said, given that Mr. Lissaman arranged for a supplementary affidavit of documents to be served by his clients in August 2015 strongly suggests that he believed the action still to be alive, which in turn suggests that his failure to take further steps to obtain a sixth timetable was not deliberate. As I have already said this evidence ought to have been considered by the Master.

54For these reasons in my view the Master’s finding that Mr. Lissaman found out about the Dismissal Order upon receipt of the January email and his refusal to accept Mr. Lissaman’s evidence that it was not until September 30, 2015 that he discovered this and that his delay in prosecuting the action was deliberate, not inadvertent, was a palpable and overriding error of fact.

55The Master also found that the Appellants had abandoned their action. The Respondents argue that the Master was reasonable when he concluded that the Appellants caused the delay as they failed to obtain the Third Party Documentation requested by the Respondents, which they demanded before scheduling examinations for discovery. The evidence of Mr. Iacolucci, in an affidavit sworn in support of the Appellants’ motion, was that he was never told that there was any jeopardy that might result in the action being dismissed for delay. Mr. Lissaman agreed with this evidence. He also testified that it was not his practice to send Status Notices to the client. When Mr. Iacolucci was cross-examined on this issue he did not remember when he was first asked for the Third Party Documentation by Mr. Lissaman but he maintained that when he was asked he did provide what he had and that he was not responsible for any delay in that regard.

56When Mr. Lissaman was cross-examined he testified he and Mr. Iacolucci had a lot of communication where Mr. Iacolucci asked him what he was doing to move the action along and Mr. Lissaman asked him where he stood with the Third Party Documentation. According to Mr. Lissaman, Mr. Iacolucci expressed to him that his attempts to obtain the Third Party Documentation, which he apparently no longer had in his personal possession, had been frustrating and to no avail. It was at this point that Ms. Paglia was given authorization so that she could obtain the documents directly from the firms in question. At this point Mr. Lissaman testified that Mr. Iacolucci reasonably believed Ms. Paglia was going to get the documents and so he cannot be blamed for not taking further steps.

57The Master appears to have concluded, at para. 45, that based on the fact that both Mr. Iacolucci and Mr. Lissaman said there was regular communication between them, and Mr. Iacolucci confirmed that he was advised in a timely way of the Third Party Documentation issue that the delay was not that of Mr. Lissaman or at least not his alone and the Appellants actually caused the delay that lay the foundation for the Dismissal Order and that they do not have an adequate explanation for it.

58The Master then went on to consider whether there was inadvertence in missing the set down deadline set by Mast Dash for the end of August 2013. He observed at para. 51 that Mr. Lissaman’s significant health problems, which he conceded may have played some role in causing Mr. Lissaman to avoid investigating the consent motion that was filed before Master Dash, would generally be sufficient to conclude that missing the set down deadline was inadvertent but given the conduct of the Appellants he was not prepared to make such a finding in this case. The Master went on to consider the fact that there was no real effort to abide by the Fifth Timetable and concluded at para. 53 that because Mr. Lissaman made no attempt to get a sixth timetable when the set down deadline in the fifth timetable approached gave rise to a reasonable inference, based on the regular communications between him and Mr. Iacolucci, that the Appellants had effectively abandoned their case after the fifth timetable for at least two years.

59The Master did not accept nor refer to the evidence of Mr. Iacolucci and Mr. Lissaman on this point and instead relied only on their evidence that the Appellants had regular contact with Mr. Lissaman. As the Appellants submit, there is no evidence that they were asking Mr. Lissaman why the action was proceeding so slowly, there is no evidence as to what their experience in litigation is or their expectations as to how quickly the action should have proceeded. Their evidence that they relied on Mr. Lissaman to progress the action to a successful conclusion and that they never knew their action was in jeopardy was confirmed by the evidence of Mr. Lissaman.

60By not considering what in my view was significant evidence suggesting that the Appellants did not know their action was in jeopardy, the Master made a palpable and overriding error of fact as both parties to those conversations agree that there was never any discussion of the potential of the action being dismissed for delay. There was certainly no evidence to support his conclusion that the Appellants had instructed Mr. Lissaman to abandon the action.

61The Master’s conclusion at para. 59 that the Appellants had effectively abandoned their action was based on the delay between January 2014, when he found Mr. Lissaman knew of the Dismissal Order, and January 2015, when Mr. Esterbauer was retained. He found at para. 59 that as a result the reasonable inference to draw was that at some time prior to August 2015 the appellants had effectively abandoned their action. That, however, as I have stated, was an erroneous conclusion.

62In my view had the Master accepted Mr. Lissaman’s evidence that he was unaware of the Dismissal Order until the end of September 2015 and had he considered the evidence that I have referred to and in particular the Appellants' evidence, which was supported by Mr. Lissaman’s evidence, that at all times, they intended to prosecute the action to a final determination on the merits and that at no time did they know that their action was in jeopardy, he would not have found that the Appellants were complicit in the delay caused by Mr. Lissaman. The evidence is that the Appellants were unaware of any procedural issue or any deadline until Mr. Lissaman advised them in or about September, 2015, whereupon they provided prompt instructions to take steps to restore the action. By failing to accept that evidence, in my view the Master made a palpable and overriding error.

63This error also means that the Master did not consider the application of the policy that a plaintiff should not suffer the loss of a right of action as a result of the inadvertence and mistake on the part of counsel, was not given any weight by the Master. As the Court stated in HB Fuller at para. 27:

The court’s preference for deciding matters on their merits is all the more pronounced where delay results from an error committed by counsel. As the court stated in Habib, at para. 7, “[O]n 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.” In Marche, Sharpe J.A. stated, 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” (citations omitted).

(b) Findings on the fourth Reid Factor - Prejudice

64The Appellants assert that the Master also fell into error in concluding that there was some actual prejudice to the Respondents' ability to have a fair trial based on conclusions regarding the Third Party Documentation. At para. 63 of the Reasons the Master identified that two account opening statements from two brokers; Scotia McLeod and Echlin, were missing which caused prejudice to the defence.

65The Appellants assert that the Master erroneously found that the Appellants had given an undertaking to obtain the Third Party Documentation that had been requested by the Respondents, when in fact there is no evidence to support that finding and such a finding could not be reasonably inferred from the evidence on the motion. The Appellants also argue that not making an objection to Ms. Paglia’s request did not elevate Mr. Lissaman’s conduct to an undertaking. The Appellants also argue that the Master’s finding that there was an undertaking is inconsistent with the position taken by Ms. Paglia when she sought authorizations to obtain the Third Party Documentation directly. I disagree with this last submission. Ms. Paglia had received none of the Third Party Documentation from the Appellants and this step was consistent with her desire to get the action moving.

66The Master found that there was an inference to be drawn that the Appellants “implicitly if not explicitly undertook to obtain the requested documentation before discoveries.” In my view this was a fair assessment of the evidence and a reasonable conclusion. In any event whether or not Mr. Lissaman’s conduct amounted to a formal undertaking in my view is not material. It is undisputed that Mr. Lissaman never objected to Ms. Paglia’s request for the Third Party Documentation before scheduling the discoveries. As the Master found, these documents were either in the Appellants’ possession or within their power to obtain. There could, therefore, be no dispute that Ms. Paglia could reasonably presume that Mr. Lissaman’s clients were making efforts to obtain the Third Party Documentation and that was how the Master approached his analysis of whether or not the Respondents were responsible for any of the delay. The Appellants cannot argue now that her position was unreasonable given Mr. Lissaman never took that position. Furthermore the Appellants cannot argue that Ms. Paglia “resisted” in agreeing to proceed with the discoveries or that she contributed in any way to the delay.

67The Appellants argue that there was no evidence led by the Respondents that the Third Party Documentation is no longer available. That presumes it was up to the Respondents to establish prejudice. The onus was not on the Respondents to demonstrate “significant and actual prejudice” but on the Appellants to rebut the inference of prejudice to the Respondents’ ability to defend the action¹² and so for the purpose of this appeal I will assume that the outstanding Third Party Documentation is not available.

68Mr. Esterbauer argued that this is a single issue case – namely were the Respondents negligent in recommending the Olympus Funds for the Appellants to invest in? This is the only investment in issue and he submitted that there is a lot of documentation available in this case and that the missing documents will not result in significant prejudice to the Respondents. It is Mr. Esterbauer’s position that the relevant evidence about the Appellants' expectations and risk profile is established in the account opening documentation with TD Waterhouse and the other evidence that has been fully preserved. The Appellants argue that instructions that may have been given to other brokerage firms in account opening documentation, of which the Respondents were never aware at any relevant time, would not impact the standard of care which the Respondents were subject to and against which their advice to buy Olympus Funds will be assessed.

69Although I agree that this case will necessarily be determined primarily on the Respondents’ documents, the Appellants allege in their statement of claim that they had never consulted an investment advisor prior to coming to TD Waterhouse and had "very limited" investment experience. The Third Party Documentation requested by Ms. Paglia concerning other accounts opened by the Appellants in the same relative timeframe is important as it may contradict these allegations and shed some light on what the Appellants represented to others as to their tolerance of risk, their investment experience and investment goals. Although those factors could well be different for different investment accounts, to the extent there is a dispute on these issues in this action, this other evidence could be of assistance to the Respondents.

70The Appellants argue that in any event there is a remedy for any prejudice resulting from the missing opening account statements and rely on a case from this Court where the same issue was considered: Klaczkowski v. Blackmount Capital Inc.¹³ That case involved a similar appeal from a refusal of a master to set aside a registrar's dismissal order. The appeal was allowed and the action restored.

71In Klaczkowski, the same position was taken as the Respondents take here, namely, that the Appellants should be required to produce all investment accounts with other firms, in order to support the defence position that the Appellants were sophisticated and experienced investors. J. Wilson J. of this Court found at para. 22 that "these ancillary documents", if found to be relevant and no longer available, would not prejudice the defence, as an adverse inference could be drawn against the plaintiffs.

72I agree with Ms. Dingle, counsel for the Respondents, that to the extent these missing documents might have had positive information that the Respondents could rely on, the solution of drawing an adverse inference if these documents are not produced is not going to cure such prejudice. It would only mean at most that an inference might be drawn that the missing documents would have been adverse to the Appellants’ position but there would be no positive evidence that the Respondents could rely upon to contradict the allegations made by the Appellants.

73At para. 66 of the Reasons, the Master stated that he preferred what he viewed was a competing decision to Klaczkowski, namely, the decision in Melanson v. ControlChem Canada Ltd.¹⁴ The Appellants argue that this case is clearly distinguishable because they assert that the particular evidence that the defence in Melanson sought, was clearly relevant to the defence, and would establish facts that were not otherwise capable of being ascertained. That, however, in my view is the case here. At para. 67 of the Reasons the Master found that the contents of the missing Third Party Documentation may have value to the Respondents in excess of what a simple adverse inference could bring them and that the Appellants had not rebutted the presumption of some actual prejudice to the Respondents on account of the lost documents due to the delay. For the reasons already stated, I agree with this conclusion.

74At para. 68 the Master went on to note the prejudice to the Respondents arising from simply the passage of time. The Master observed that the limitation period had expired several times over, creating a strong presumption of prejudice for the Appellants to rebut. That conclusion was a questionable conclusion on the law; see for example Finlay at para. 34. The Master also found that there was evidence that Mr. Iacolucci’s memory had faded. The Master then concluded at para. 69 that the Appellants had failed to establish that the Respondents are not prejudiced by the delay of this case.

75The Appellants argue that the Master’s prejudice analysis failed to give any weight to the lack of urgency and passivity that was demonstrated by the Respondents throughout, which undercuts their claim to actual prejudice. Here, the Respondents did not express any urgency at any time, and they consented to multiple timetable extensions, without every suggesting there might be some prejudice as a result of the delay.

76The Appellants submit that the Master misconstrued their argument about the Respondents' “forgiveness” of any delay. The Master relied on 1196158 Ontario Inc. v. 6274013 Canada Limited,¹⁵ as support for his conclusion, at para. 45, that the consent timetables were only "lifelines", not forgiveness of the delay. The Appellants submit that 1196158 Ontario Inc. is distinguishable as in that case it was only at the first status hearing that an agreed timetable was arrived at. At the second/last status hearing counsel for the defendants asked that the action be dismissed.

77As submitted by the Respondents, the lack of consent in 1196158 Ontario Inc. does not render that case inapplicable as the first timetable was agreed to and that was the timetable that the court considered a “lifeline”. I agree with the Master that consenting to the various timetables does not mean that the Appellants emerged with a “clean slate” and that he could consider the entire history of delay.¹⁶

78That said, in my view the Master erred in applying the decision of the Court of Appeal in HB Fuller. He found at para. 48 of his Reasons that the Respondents were not passive because they did not sit on their hands while demanding the Third Party Documentation, and that is true, but in HB Fuller, at para. 42, the Court quoted, with approval, a comment by Rosenberg J.A. in Aguas v. Rivard Estate:¹⁷ while “the appellant, as plaintiff, bore responsibility for moving the action along … respondents’ counsel’s lack of display of any sense of urgency undercuts the claim of actual prejudice.” [Emphasis added]

79This has been confirmed by the Court of Appeal in two more recent decisions as well. In MDM Plastics Ltd. v. Vincor International Inc.,¹⁸ the Court of Appeal held at para. 33 that the court must consider whether the defendant’s actions are consistent with a finding of prejudice. The Court went on to note at para. 34, that the defendant had consented without conditions to setting aside the first dismissal order, which suggested that “there was no actual prejudice to its ability to defend the action at that point as a result of the delay or the dismissal.” The Court went on to find at para. 39 that any presumption of prejudice was rebutted by the defendant’s own conduct indicating that there was no actual prejudice to its ability to defend the action as a result of the plaintiff’s delay in prosecuting the action. [Emphasis added]

80The Respondents submit that this case is distinguishable because the defendant agreed to set aside a dismissal order less than six months before the subsequent, contested order, in a case involving only two and a half years of delay. I do not read the MDM Plastics decision as limiting the principle I have set out to the first consent or to any number of consents or to the period of delay. The point is that by consenting to new timetables without expressing any concern about the pace of the litigation or suggesting that there might be prejudice to the Respondents as a result of the delay Ms. Paglia’s conduct suggested there was no actual prejudice to the Respondents’ ability to prosecute the action. If it were otherwise I am sure she would have objected to the extensions sought by Mr. Lissaman.

81In Cariocas’s Import & Export Inc. v. Canadian Pacific Railway Limited,¹⁹ the Court of Appeal acknowledged, at para. 53, that it has stated frequently that the plaintiff bears the primary responsibility for moving a case forward but the suggestion that it is normal and acceptable for a defendant to simply wait for the plaintiff to make the next move, may be based on a conventional view of litigation strategy. The “objectives of timely and efficient access to justice, and effective use of court resources require all parties to play their part in moving actions forward, and for counsel to act in a way that facilitates rather than frustrates access to justice: Hryniak, at para. 32. For these reasons … the conduct of all parties in relation to the litigation is relevant in determining whether to restore an action to the trial list.” [Emphasis in original]

82Although I do agree with the finding of the Master that the Respondents did not do anything to resist proceeding with the discoveries that they were not entitled to do, and that they were not entirely passive, for the reasons stated, in my view the Master made a palpable and overriding error of fact in not finding that the conduct of the Respondents in consenting to multiple new timetables without expressing any concern about the delay or the possibility of prejudice does undercut the Respondents assertion of actual prejudice at least prior to the time the Fifth Timetable was consented to.

83For these reasons I find that the Master was correct in finding that the Respondents’ ability to have a fair trial will suffer some actual prejudice as a result of the missing documentation but he erred in failing to consider the conduct of the Respondents up to the time when the Fifth Timetable was agreed to that undercut their assertion of prejudice.

(c) Finding on the third Reid Factor - Delay in Bringing Motion to Set Aside

84The Master concluded that the Appellants' motion to set aside the Dismissal Order had been unjustifiably delayed by the Appellants. The Appellants submit that the motion was brought reasonably promptly.

85This finding by the Master was as a result of his conclusion that Mr. Lissaman actually knew upon receipt of the January email that the action had been administratively dismissed and that he delayed two years before bringing the motion to set aside the Dismissal Order. As I have already found, this finding was a palpable and overriding error of fact. As a result his conclusion that there was unjustifiable delay in bringing the motion is flawed.

Should the Appeal be Allowed?

86Having found that the Master made palpable and overriding errors of fact the appeal is allowed. The matter can be sent back to another master to be dealt with or dealt with by me as the judge hearing this appeal. Neither party asked that the matter be sent back to another master. Therefore I will deal with the matter afresh and weigh the relevant considerations. In that regard I must balance what is an inordinate delay caused by the inaction of the solicitor, which I find that the Appellants are not responsible for, against the prejudice that that Respondents will suffer presuming the Third Party Documentation cannot be located.

Should the Action be Restored to the List?

(a) The first two Reid Factors - Delay

87As I have said there is no basis to interfere with the conclusion of the Master that there was unexplained delay that was not inadvertent before the August 30, 3013 set down deadline. That however was also the period of time when Ms. Paglia was consenting to new timetables without asserting any concern. I will come to the significance of that. Any delay of the Appellants in obtaining the Third Party Documents ended once they signed the authorizations so that Ms. Paglia could obtain the documents. Furthermore, I have already set out my reasons for why I conclude that the Appellants were not aware the action was in jeopardy and did not abandon the action.

88As I have already stated, when Mr. Lissaman wrote to Mr. Fabello on August 27, 2015 and sent him the Appellants’ supplementary affidavit of documents he must have still believed that the action was “alive” and in my view this is a critical piece of evidence that supports Mr. Lissaman’s evidence that he did not become aware of the Dismissal Order until September 15, 2015. There is therefore no reasonable basis to conclude, given the evidence of the significant health issues that Mr. Lissaman was experiencing, that his delay in prosecuting the action in that period of time was deliberate.

89Because of the Master’s findings on the first two Reid factors, he did not consider the applicable law with regards to the delay of counsel, rather than litigants, other than refer briefly to the principle in para. 70 of his Reasons. The Appellants argue that, in general, courts will not hold innocent litigants responsible for clerical or technical errors of counsel. However, as the Respondents point out, where a missed deadline is part of a longer pattern of delay, the courts may hold that the delay was deliberate regardless of the litigants' knowledge. It is the nature of the delay that matters, not who caused it.

90On this issue I have already referred to HB Fuller at para. 27 and Carioca at para. 53. In addition, in Finlay at para. 33, the Ontario Court of Appeal stated that 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. The Court went on to refer to Marché d’Alimentation Denis Thériault Ltée v. Giant Tiger Stores Ltd.²⁰ at para. 28.

91In Marché the Court of Appeal noted at para. 28 that one important consideration is that the plaintiff will not be left without a remedy. At para. 29, the Court stated that where the solicitor’s conduct is not mere inadvertence, but amounts to conduct very likely to expose the solicitor to liability to the client, refusing the client an indulgence for delay will not necessarily deny the client a legal remedy. The Court also stated at para. 31, that a second consideration is the nature of the delay and the solicitors’ conduct which in that case amounted “to more than that kind of lapse or inadvertent mistake that the legal system can countenance.” In that case, however, reinstating the action would have excused a five-year delay after the dismissal of the action in a case where the lawyer formed a deliberate intention not to advance to litigation toward trial and the defendant had destroyed its files. The Court found at para. 32 that in those circumstances that excusing a delay of this magnitude and gravity risked undermining public confidence in the administration of justice, clearly preferring that the client seek their remedy by suing the lawyer.

92In 1196158 Ontario Inc. the Court stated at para. 33 that “[a]t 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.” This was a case where the plaintiff failed to take steps within the time limits required by a timetable agreed upon at a status hearing and at a subsequent status hearing, the defendant asked that the action be dismissed for delay and the court agreed, having found there was no explanation for the delay.

93This is a difficult case on this issue because there is no doubt that at times when Mr. Lissaman does not assert that he had health troubles that he let the action go dormant without any explanation. This case is hardly an example of how a lawyer ought to represent clients, particularly elderly clients, who assert a substantial claim for damages. The more critical period of delay however was when Mr. Lissaman was suffering from significant health concerns, which is a different matter. The Appellants might have a remedy against Mr. Lissaman if this appeal were dismissed. However, given that Ms. Paglia was not complaining about the delay, the fact counsel were not made aware of the order of Master Dash and given Mr. Lissaman’s health concerns at a critical time in the action, which delayed his knowledge of the making of the Dismissal Order for some time, I am satisfied that reinstating this action would not undermine public confidence in the administration of justice.

(b) Findings on the fourth Reid Factor - Prejudice

94I have already set out my reasons for agreeing with the Master that the Respondents will suffer some prejudice as a result of the missing Third Party Documentation. However, I would not say that the prejudice will be significant in light of the documentation that is available.

95Given the full Scotia McLeod trading records have been produced, there is evidence of the actual securities that were purchased throughout the relevant period. From this evidence some inferences can be made as to at least the risk tolerance and investment goals of the Appellants with respect to that account. Ms. Dingle submitted that this presumed the advisors at Scotia McLeod acted in accordance with their instructions from the Appellants and that is true but it seems extremely unlikely that the Appellants would argue otherwise. If they should do so, that would be a case where an adverse inference could be drawn from the absence of certain documents.

96The same conclusion applies to the trading documents produced by Echlin although those are limited. The fact the full records from the Appellants’ BMO Nesbitt Burns account, including the account opening documentation, have been produced, is also of possible assistance to the Respondents.

97As for the concern that Mr. Iacolucci’s memory had faded, the reality is that the issues that the documents will be relevant to of investment experience, risk tolerance, and investment goals will be reflected in the opening account documents and in the case where those are missing, the actual purchases made by the Appellants.

98Furthermore, for reasons already stated, the conduct of the Respondents in consenting to multiple new timetables without expressing any concern about the delay or the possibility of prejudice does undercut their argument about prejudice at least to the time of the Fifth Timetable.

99The Appellants take the position that, consistent with the wording from Reid, the issue is whether or not the Respondents will suffer significant prejudice if the action is restored to the list. The Respondents assert that the issue is just one of prejudice, referring to Chrisjohn at para. 37. None of the cases referred to me by counsel expressly address this issue. None expressly suggest that the fourth Reid factor has been modified. It seems to me that when the Court of Appeal relaxed the rigidity of a moving party need to satisfy all four Reid factors the intention was that the court consider all of the relevant factors and make a decision that is just in all of the circumstances of the case. I do not accept the submission of the Respondents that if there might be minimal prejudice to their rights to a fair trial that that necessarily means that the action should not be restored.

100The prejudice to the Respondents must be balanced against the enormous prejudice to the Appellants in losing their right of action. The alternative remedy of an action against Mr. Lissaman could potentially minimize this prejudice but clearly that is uncertain and would mean the Appellants would be left with two claims instead of one. On balance I would say on the issue of prejudice clearly favours the Appellants and the Respondents can still have a fair trial.

(c) Delay in Bringing Motion to Set Aside

101There is no dispute that by September 1, 2015, Mr. Lissaman knew of the Dismissal Order. Mr. Esterbauer was retained, it would appear, in late January 2016. All Mr. Lissaman testified he did was to check the court file to ensure that there was in fact a dismissal order and then begin to prepare material to seek to set the order aside before he realized he needed to report the matter to LawPRO. There is no evidence as to how long it took for Mr. Lissaman to appreciate that he had to report the matter to LawPRO. This does suggest some unnecessary delay in bringing the motion, because of the delay in retaining Mr. Esterbauer although I appreciate it would take some time once Mr. Lissaman reported the matter to LawPRO for LawPRO to appoint counsel.

102In my view although almost five months in retaining Mr. Esterbauer seems excessive, the delay was certainly not as long as found by the Master nor was he correct in concluding that it was evidence of the Appellants’ decision to abandon the action.

103Delays in bringing motions have been excused in a variety of circumstances, and for much longer time periods:

a) in Micallef, a delay of five years and ten months between the dismissal order and the motion to restore the action, was excused. The plaintiff was not responsible for the delay and there was an absence of any prejudice; and

b) in Ciarelli, a delay in bringing a motion to extend the time for service of a statement of claim, which amounted to a delay of approximately six years, was excused on the basis that there was almost no prejudice and the solicitor "froze".

104In this case the delay between discovery of the Dismissal Order by Mr. Lissaman in September, 2015, and Mr. Esterbauer initiating the motion proceedings in February, 2016, is not so unreasonable that it cannot be excused. It is another factor to consider.

(d) What is the overall just result in the context of this case?

105I have considered the relevant contextual factors including the conduct of Mr. Lissaman, the Appellants and Ms. Paglia and the prejudice to the parties.

106In my view, in this case any prejudice to the Respondents will be very minimal, assuming the Third Party Documentation is no longer available, and the Respondents can still have a fair trial. Although the Appellants may have come up short on the explanation of the delay prior to August 2013 and on the question of prejudice, considering the conduct of the Respondents in failing to communicate any sense of urgency or concern with the pace of the litigation, in my view those concerns are minimized if not eliminated. Considering all of the relevant factors in the circumstances of this particular case for all of the reasons stated, in my view the overriding policy in this case is that the Appellants should be able to have their action heard and decided on the merits.

107For these reasons I conclude that the manifestly just order in the circumstances is to restore the action.

Disposition

108For these reasons the appeal is allowed and the Dismissal Order is set aside. This action shall be restored to the list.

Costs

109The Appellants are entitled to their costs of this appeal, on a partial indemnity basis, to be fixed and payable by the Respondents.

110I thank counsel for coming to an agreement that the successful party should be paid $8,000 for costs all-inclusive. Accordingly, costs are awarded to the Appellants in the amount of $8,000 all-inclusive, payable by the Respondents within 30 days of the release of this decision.

___________________________ SPIES J.

Footnotes

1. 1HB Fuller Co. v. Rogers, 2015 ONCA 173 at para. 192 and Faris v. Eftimovski, 2013 ONCA 360 at para. 22.
2. 2Reid v. Dow Corning Corp., [2001] O.J. No. 2365 (S.C.J.) at paras. 40-41; rev’d on other grounds [2002] O.J. No. 3414 (Div. Ct.)
3. 3Scaini v. Prochnicki, 2007 ONCA 63 at paras. 19-28.
4. 4HB Fuller, supra.
5. 5HB Fuller, supra, at paras. 25-27.
6. 6[2009] OJ No 5564 (Div. Ct.) at paras. 18, 29-31, 33, 35.
7. 72010 ONCA 204 at para. 27.
8. 82013 ONSC 7685 (Div. Ct.) at para. 41.
9. 92000 3904 (ON CA), [2000] O.J. No. 296 (C.A.) at para. 10.
10. 10Supra at paras. 33.
11. 11Supra at para. 28.
12. 12Chrisjohn v. Riley, 2015 ONCA 713 at para. 40.
13. 132015 ONSC 1650.
14. 142013 ONSC 4297, aff’d at 2014 ONCA 82.
15. 152012 ONCA 544 at para. 25.
16. 161196158 at para. 25
17. 172011 ONCA 494 at para. 19.
18. 182015 ONCA 28.
19. 192015 ONCA 592.
20. 202007 ONCA 695, paras. 27-33.