Court File and Parties
CITATION: Karagiannis v. Riapov, 2018 ONSC 2575
DIVISIONAL COURT FILE NO.: 502/17
DATE: 20180509
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
ATHANASIOUS (TOM) KARAGIANNIS and NICHOLAS DANIKAS Plaintiffs/Appellant
– and –
JEKO GEORGE RIAPOV, OSMAN ALASOW, MORRIS TAXI LIMITED and 728439 ONTARIO LIMITED cob as NORTHLAND TAXI Defendants/Respondent on Appeal
COUNSEL:
J. Thomas Curry and Robert Trenker, for the Appellant Nicholas Danikas
Rohit Sethi and Ariane Wiseman, for the Respondent Jeko George Riapov
HEARD at Toronto: April 20, 2018
Reasons for Judgment
Swinton J.
Overview
[1] The appellant Nicholas Danikas appeals the order of Master Suganasiri dated July 27, 2017 in which she refused to set aside the Registrar’s administrative dismissal of his civil action. That action, brought as a Simplified Procedure, was commenced in May 2012 as a result of a motor vehicle accident in 2010. On May 15, 2017, the Registrar had dismissed the action on the basis of Rule 48.14(1), because the action had not been set down for trial within five years after it was commenced.
[2] An appellate court will interfere with a decision refusing to set aside the Registrar’s order of dismissal only if there is an error of legal principle or a palpable and overriding factual error (H.B. Fuller Co. v. Rogers, 2015 ONCA 173 at para. 19).
[3] In this case, the appellant submits that the Master erred in law and made palpable and overriding errors of fact. I agree, and I would allow the appeal and set aside the Registrar’s order of dismissal.
Factual Background
[4] The appellant commenced this action in May 2012. Examinations for discovery were completed in 2013 and a mediation was held in September 2015.
[5] The appellant did not set the action down for trial, as there was a related action arising from a second motor vehicle accident in August 2011, in which he had been injured again. There was some delay in the second action because two of the defendants were uninsured. The appellant’s insurer was added as a party for uninsured coverage in March 2016. Discoveries in that action were scheduled to be held in June 2017.
[6] The evidence filed on behalf of the appellant in the motion to set aside stated that a global assessment of damages would be necessary. However, no order to try the actions together had yet been sought.
[7] The Registrar’s order of dismissal, dated May 15, 2017, was received by appellant’s counsel (not the counsel on this appeal) on June 1, 2017. During May and early June, appellant’s counsel made efforts to respond to undertakings, and on June 2, 2017 he provided hospital records.
[8] The appellant moved to set aside the dismissal order. On July 27, 2017, the Master dismissed the motion. She made a finding that neither party seemed interested in the litigation “beyond a few letters that pay lip service to it.” She concluded that she had been provided with no basis to set aside the dismissal.
The test to be applied
[9] The test to be applied in a motion to set aside a Registrar’s administrative dismissal is set out in numerous cases of the Court of Appeal. They adopt the factors set out in Reid v. Dow Corning Corp., [2010] O.J. No. 2365 (S.C.J.). For example, see Finlay v. Van Paassen, 2010 ONCA 204 at para. 25, where the Court of Appeal sets out the factors:
- Explanation of the litigation delay
- Inadvertence in missing the deadline
- The motion is brought promptly
- There is no prejudice to the defendant.
The four factors are to be considered and balanced in a contextual approach, where the court considers the interests of justice in the particular circumstances of the case (Scaini v. Prochnicki (2007), 2007 ONCA 63, 85 O.R. (3d) 179 (C.A.) at paras. 21-23).
The Master applied the test incorrectly
[10] The Master correctly stated that the appellant must address the four factors set out in Reid v. Dow Corning Corp., above. She then stated that “[t]he most significant of those factors requires a plaintiff to adequately explain delay in the progress of litigation.” Subsequently, she also referred to the Court of Appeal’s decision in Scaini, above, when she stated that she must take a contextual approach.
[11] The Master made a number of errors in her application of the test. First, she erred in saying that the most significant factor is the explanation for the litigation delay. The Court of Appeal has made it clear that the court must consider all the factors, although the plaintiff need not satisfy them all. To the extent that the Court of Appeal has said that any factor is more significant, it is the factor of prejudice (see Finlay, above at para. 28; MDM Plastics Ltd. v. Vincor International Inc., 2015 ONCA 28 at para. 33).
[12] Second, the Master made a legal error in applying the test, in that she did not discuss all the factors. There is no mention of the issue whether the appellant moved promptly to set aside the dismissal. This is relevant when considering prejudice to the respondent and in determining whether the appellant intended to proceed with the action. In the present case, the Registrar dismissed the action on May 15, 2017, although this notice was not received until June 1, 2017. The Notice of Motion to set aside is dated July 4, 2017 and the hearing was held July 27, 2017. Clearly, the appellant moved promptly.
[13] Third, the appellant argues that the Master erred in her treatment of the factor of prejudice. She correctly stated that there is a presumption of prejudice. However, she then stated that the appellant had not tendered any evidence to counter this. I note that the Court of Appeal in MDM, above, has stated that it is not always necessary for the plaintiff to do so. In any event, there was evidence from the appellant that rebutted the presumption – for example, evidence showing that his hospital records had been preserved, and discoveries had been completed.
[14] The Master seems to take issue with the fact that there was no affidavit from the appellant and only an affidavit from his then counsel’s assistant. The case law does not require an affidavit from the plaintiff in every case (see, for example, Dixon v. Ryan, 2012 ONSC 3353 (S.C.J.) at paras. 28, 30)).
[15] The Master went on to state that the defendant is required to prove evidence of actual harm. She stated that the respondent had provided sparse evidence on this issue, alleging harm from the lack of productions from the appellant and the risk that OHIP records may no longer exist. However, she did not actually come to any clear finding of prejudice, and this is an error. From her reasons, I infer that she found there was no prejudice. Indeed, given that there had been examinations for discovery and some compliance with undertakings and the lack of any proof of actual harm from the respondent, that would be the reasonable conclusion.
[16] Fourth, the Master erred in her assessment of the interests of justice, as she failed to balance the interest in finality with the interest in settling legal disputes on their merits. Ultimately, she concluded that the parties seemed uninterested in the litigation “beyond a few letters that pay lip service to it.” Here she was referring to the letters concerning the answers to undertakings. She stated that the efforts to comply seem to have been made primarily after the administrative dismissal.
[17] The Master failed to consider the litigation as a whole, and in my view that is an error. Examinations for discovery occurred in December 2013. Mediation took place in September 2015. The Master failed to consider a letter from respondent’s counsel dated May 2, 2017, attached to the affidavit of Ms. Ruivo. It shows that there had been some compliance with undertakings before the administrative dismissal. In paragraphs 3 through 7, respondent’s counsel acknowledges that the appellant’s counsel had sent request letters for production of documents. It turns out that the clinical notes and records from Toronto East General Hospital from 2007 to present were subsequently provided on June 2, 2017. That this came after the dismissal is irrelevant for purposes of determining whether the parties had lost interest in the litigation, as the Master found. On May 17, 2017, appellant’s counsel also sent copies of second request letters to the defendant. On May 24, he sent records from a Shoppers Drug Mart. All of this goes to show that there was ongoing activity on the file, not an abandonment of the litigation by the appellant.
[18] As well, the Master failed to assess the significance of the related action, except to wonder why there had been no motion to join.
[19] Moreover, in assessing the justice of the case, she should have considered and balanced the various factors, including the lack of prejudice to the respondent and the appellant’s prompt steps taken to set aside the dismissal. She did not do so.
The Master failed to consider relevant evidence
[20] The appellant argues that the Master also disregarded relevant evidence, and that is a legal error. I agree.
[21] This brings me to a discussion of the material that was before the Master. In addition to the assistant’s affidavit and two short affidavits from the respondent, the Master had a Simplified Procedure motion form. In that form, there is a heading “Material relied on by this party”. The appellant’s counsel had ticked three boxes: “this form, pleadings and affidavit of Cindy Ruivo”. Under the grounds in support of the motion, there are 13 paragraphs setting out information such as the reason for the failure to set the matter down (because of inadvertence of counsel), the course of the related action, the planned discoveries in that related action in June 2017, and the lack of prejudice to the respondent. The motion form requires counsel to certify that the above information in the form is correct, and counsel, Gerald Sternberg, did so.
[22] Rule 76.05(3) provides that “[d]epending on the practical requirements of the situation”, a motion in a Simplified Procedure action may be made “with or without supporting material or a motion record.” The appellant argues that the wording of the rule and the form contemplates that a motion may be supported by certified information from counsel rather than an affidavit. He argues that the Master erred by failing to give any consideration to this certified information.
[23] The respondent submits that the Master did not err because a certificate of counsel is not an affidavit. That is true, and the court may choose not to accept the information in the form in certain circumstances, especially if there is affidavit evidence from the defense challenging it. However, there must be some significance to the fact that counsel, in a Simplified Procedure motion, is required to certify that information is correct, given that the Simplified Procedure is meant to provide faster and less expensive access to civil justice.
[24] In the present case, the certified information dealt with the appellant’s intention to proceed, the lack of prejudice to the respondent, counsel’s inadvertence in setting the matter down for trial, and the course of the related action, including the need for a global assessment of damages and the fact that discoveries were scheduled in that action for mid-June, 2017. The respondent filed two short affidavits in response that did not dispute any of this information, except, perhaps, to the extent that one affidavit stated there had been no settlement discussions since January 2016. Most significantly, the respondent did not lead any evidence of actual prejudice. In my view, the Master erred in totally ignoring this information (see Fuller, above, at para. 43.)
[25] Had the Master considered the certified information along with the affidavits, she could not have made some of the comments that she did. She stated that there was no information about inadvertence from counsel, but that is addressed in the form. She stated that there was no evidence about the related action, but there is indeed information about that action in the form, as well as in the Ruivo affidavit. As well, there is an explanation for the delay because of the related action.
The proper disposition of the motion to set aside
[26] Given the legal errors of the Master, her decision must be set aside. In the circumstances, it is appropriate for me to weigh the relevant considerations based on the record (see Finlay, above, at para. 29).
[27] When all the factors are considered in light of all the circumstances of the case, including the related action, the interest in allowing the action to proceed outweighs the interest in finality. This is not a case where the appellant has lost interest in the litigation, as shown by the answers to undertakings, the holding of discoveries, and the planned discoveries in the related action. This is not a case where there has been actual prejudice to the respondent. The appellant moved quickly to set aside the dismissal. There was inadvertence by counsel in failing to set the matter down for trial, and the delay has been explained.
[28] Accordingly, the appeal is allowed, the order of the Master is set aside, as is the order of the Registrar dismissing the action. The appellant shall set this action down for trial within 30 days.
[29] Costs to the appellant are fixed at $10,000, an amount that the respondent concedes is reasonable.
___________________________ Swinton J.
Released: May 9, 2018
CITATION: Karagiannis v. Riapov, 2018 ONSC 2575
DIVISIONAL COURT FILE NO.: 502/17
DATE: 20180509
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
ATHANASIOUS (TOM) KARAGIANNIS and NICHOLAS DANIKAS Plaintiffs/Appellant
– and –
JEKO GEORGE RIAPOV, OSMAN ALASOW, MORRIS TAXI LIMITED and 728439 ONTARIO LIMITED cob AS NORTHLAND TAXI Defendants/Respondent on Appeal
REASONS FOR JUDGMENT
Swinton J.
Released: May 9, 2018