Mihoren v. Quesnel, 2021 ONCA 898

COURT OF APPEAL FOR ONTARIO

DATE: 20211216 DOCKET: C68997

Brown, Roberts and Zarnett JJ.A.

BETWEEN

Cherie Anne Marie Mihoren Applicant (Appellant)

and

Alan Quesnel Respondent (Respondent)

Counsel: Michael Zalev and Kristy Warren, for the appellant Samuel Mossman, for the respondent

Heard: June 30, 2021 by video conference

On appeal from the order of Justice Pamela L. Hebner of the Superior Court of Justice, dated December 11, 2020, with reasons at 2020 ONSC 7724.

Zarnett J.A.:

OVERVIEW

[1] The appellant’s application for payment of support by the respondent was administratively dismissed under r. 41(6) of the Family Law Rules, O. Reg. 114/99. The appellant missed a deadline, that her lawyer [1] had neglected to diarize, by which certain steps had to be taken.

[2] The motion judge refused to set aside the dismissal order and re-instate the application so that it could be determined on its merits.

[3] For the reasons that follow, I would allow the appeal and set aside the dismissal order.

[4] A decision whether to set aside an administrative dismissal involves an exercise of discretion guided by certain principles. Relevant factors include whether there is an explanation for the delay, whether the dismissal arose due to inadvertence, whether the motion to re-instate the proceeding was brought promptly, and whether there is prejudice. These factors are not, however, to be viewed as a series of rigid hurdles for the moving party to meet. Rather, a contextual approach is to be taken. The overall question is whether it is just to uphold the dismissal in all of the circumstances, weighing two competing policy objectives: the objective that proceedings should be determined on their merits, and the objective that proceedings should be resolved in a timely and efficient manner to maintain public confidence in the administration of justice.

[5] In my view, the motion judge made errors in principle which, in this case, justify appellate interference with her exercise of discretion.

[6] The motion judge properly found that there had been a delay in moving the application forward for which no adequate explanation was offered; however, she in essence treated that factor as a rigid unmet hurdle. Although she noted that the dismissal arose due to inadvertence of the appellant’s lawyer, and that the appellant’s motion to set aside the dismissal order was brought promptly, she failed to ascribe any significance to those factors, and erred in her analysis of prejudice. She failed to take the proper contextual approach and to consider the policy favouring the resolution of this proceeding on its merits. Moreover, after recognizing that the absence of a limitation period for support claims meant that the appellant could start a new proceeding, she failed to consider how upholding the dismissal would actually advance the goal of timely and efficient resolution.

[7] On a proper consideration of all the circumstances, the dismissal should have been set aside.

PROCEDURAL HISTORY

(1) Steps in 2017-2018

[8] On October 23, 2017, the appellant commenced an application for spousal support against the respondent. She alleged that, although she and the respondent were not married, they had cohabited continuously between 2005 to 2016 and were therefore spouses with support entitlements and obligations under Part III of the Family Law Act, R.S.O. 1990, c. F.3.

[9] The respondent filed an answer in December 2017. He disputed the appellant’s characterization of their relationship and that they had cohabited continuously for over three years (the relevant time period to trigger spousal status under Part III of the Family Law Act: s. 29). Therefore, he denied that she had any entitlement to support from him, as she lacked the status of a spouse.

[10] There was activity in the litigation in 2018. The parties attended a case conference in March 2018. The lawyer for the appellant arranged for questioning and cross-examination on financial statements to take place. The respondent’s questioning was, at his counsel’s request, scheduled to accommodate his travels outside of Canada, and was completed on October 29, 2018. The appellant’s questioning was completed on November 1, 2018.

[11] In early November 2018, the lawyers for the parties exchanged correspondence. The appellant’s lawyer provided certain documents and indicated that the appellant was in the process of collecting other information and documents relating to undertakings given on her questioning. He also demanded certain productions from the respondent; when they were not forthcoming, he indicated he would bring a motion.

(2) The Deadline for Dismissal

[12] As the appellant’s case was not in the Family Court of the Superior Court of Justice, r. 41 of the Family Law Rules applied.

[13] On October 26, 2018, a clerk of the Superior Court sent a notice of approaching dismissal under r. 41(5) of the Family Law Rules, as the case had not been settled, withdrawn, or scheduled for trial within 365 days of its commencement. The notice provided that the clerk would dismiss the case unless, within 60 days (that is, by December 27, 2018), one of the steps specified in r. 41(6) of the Family Law Rules was taken. Those steps are: obtaining an order lengthening time, filing an agreement for a final order disposing of all issues and a notice of motion to carry out the agreement, serving a notice of withdrawal discontinuing the case, scheduling the case for trial, or arranging a case conference or settlement conference for the first available date.

[14] One of those steps — obtaining an order lengthening time — was taken. The court made an order on December 6, 2018, on the consent of the parties, extending the “time for dismissal” that had been specified in the notice to October 25, 2019. In other words, October 25, 2019 became the new deadline by which one of the steps in r. 41(6) had to be taken to avoid dismissal of the application by the clerk.

[15] Notwithstanding the importance of this deadline, the appellant’s lawyer did not diarize it, due to what the motion judge accepted was inadvertence.

(3) 2019 and the Administrative Dismissal

[16] The appellant gave evidence that she met with her lawyer in February 2019. He told her to prepare a list of witnesses who would have to meet with him and provide signed statements. She prepared such a list and was directed by her lawyer to contact witnesses and arrange appointments for them to meet with him. Some witnesses provided statements over the next several months, while others were unwilling to get involved. The appellant acknowledged that the compilation of a final witness list for a settlement conference was delayed.

[17] However, the only communication between counsel in 2019, prior to the new dismissal date, was a letter dated July 6, 2019, in which counsel for the respondent wrote to the appellant’s lawyer, listing the undertakings given on the appellant’s questioning, and requesting answers by the end of the month.

[18] That letter was not answered, and prior to October 25, 2019, none of the steps specified in r. 41(6) to prevent dismissal of the action were taken.

[19] Accordingly, on October 26, 2019, the court issued an order under r. 41(6) of the Family Law Rules, dismissing the appellant’s application.

(4) The Motion to Set Aside

[20] The appellant’s lawyer received the dismissal order in November 2019; shortly afterwards, there was a fire at his office building, delaying his access to files and equipment.

[21] The appellant brought a motion to set aside the dismissal order under r. 41(9) on February 27, 2020, returnable March 20, 2020. As a result of the pandemic, the motion could not be heard until August 14, 2020.

[22] The motion was supported by an affidavit of the appellant which outlined the history described above, and stated that she had maintained her desire to proceed with her claim for support throughout, wished to proceed with it, and was “prepared to do what is necessary to expedite the hearing of a Settlement Conference and thereafter expedite the Trial in this matter.” Her lawyer’s assistant swore an affidavit that she had inadvertently failed to diarize the date for dismissal of October 25, 2019, that her office had continued to “process the Application … to October 25th, 2019”, and that at no time was she given any indication by the appellant or her lawyer that the appellant’s “claims were not being pursued”.

[23] The respondent also swore an affidavit. Among other things, he swore that he was told by his lawyer of the dismissal order on November 4, 2019 and that the appellant had to move expeditiously to set it aside “if it came about inadvertently and she wished to continue with her Application.” He also stated that “[a]s time passed, [he] came to believe that the matter was finished”, that the “Application has been a source of stress and aggravation for [him]”, and that he was “pleased and relieved when in late 2019 [he] came to believe that it was over”.

(5) The Motion Judge’s Decision

[24] The motion judge referred to the onus on family law litigants to move cases forward in a timely manner, with the expectation set by rr. 41(5) and (6) that they will be resolved or scheduled for trial within a year. She noted that the timelines exist for a purpose, related to the invasive nature of family law litigation and the burden it often places on parties, and that the court should not rubber-stamp requests to set aside administrative dismissals. She referred to case law from this court, including H.B. Fuller Company v. Rogers (Rogers Law Office), 2015 ONCA 173, 386 D.L.R. (4th) 262, that set out the principles to be considered when deciding whether to set aside an administrative dismissal in civil cases under r. 48 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. She accepted that the civil approach should inform the approach to an administrative dismissal under the Family Law Rules, within the context of the primary objective of those rules, dealing with cases justly: r. 2(2).

[25] The motion judge then proceeded to consider what was referred to in the case law as the four Reid [2] factors, as they applied to the facts. The Reid factors are: whether there was an explanation for the delay that led to the dismissal order, whether the deadline set out in the notice was missed due to inadvertence, whether the motion to set aside the dismissal was prompt, and whether there has been prejudice to the responding party.

[26] On the first Reid factor, she found that the appellant had not provided an adequate explanation of the litigation delay that followed the extension, in late 2018, of the deadline for dismissal. On the second, she accepted the evidence of the appellant’s lawyer’s legal assistant that she had inadvertently failed to diarize the dismissal date of October 26, 2019, and that the appellant had been in touch with her lawyer’s office up to that date and never indicated an intention to discontinue her proceeding. The motion judge considered that to be an explanation as to why the lawyer’s office did not deal with the case when the dismissal date was approaching, but not an explanation as to why no real steps were taken in the 12 months prior to the dismissal date.

[27] On the third Reid factor — whether the motion to set aside the dismissal order was brought promptly — she noted that respondent’s counsel “fairly concedes that this factor has been met.”

[28] Turning to the fourth Reid factor, the issue of prejudice, she stated that no limitation period had expired (there being none for a support claim [3]) and a new claim could be brought. She considered the only prejudice to be that arising from the passage of time. Although she noted that there was no indication that evidence had been lost by the passage of time, she said “it can be presumed that a witness’s recollections will be somewhat dimmed.”

[29] The motion judge returned to the issue of the appellant’s delay after the 2018 order extending time, stating that thereafter, “[s]he displayed … inertia, at best, or a complete lack of interest, at worst”, and noting the lack of an adequate explanation for that delay. She concluded:

Under all of the circumstances of this case, even though the only identifiable prejudice to the respondent is the passage of time, I am not prepared to set aside the dismissal order. I recognize that, without the passage of a limitation period, the [appellant], should she choose to, can issue a new claim. Even though that is true, I find I cannot countenance her delay in the case currently before the court by setting aside the dismissal order.

LEGAL FRAMEWORK

(1) The Relevant Rules

[30] Rules 2(2) - (4) of the Family Law Rules provide that:

(2) The primary objective of these rules is to enable the court to deal with cases justly.

(3) Dealing with a case justly includes,

(a) ensuring that the procedure is fair to all parties;

(b) saving expense and time;

(c) dealing with the case in ways that are appropriate to its importance and complexity; and

(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.

(4) The court is required to apply these rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective.

[31] Rule 41 provides in relevant part as follows:

(5) The clerk shall serve a notice of approaching dismissal (Form 39) for a case on the parties by mail, fax or email if the case has not been settled, withdrawn or scheduled or adjourned for trial before the 365th day after the date the case was started….

(6) A case for which a notice of approaching dismissal has been served shall be dismissed without further notice, unless one of the parties, within 60 days after the notice is served,

(a) obtains an order under subrule (3) to lengthen that time;

(b) files an agreement signed by all parties and their lawyers, if any, for a final order disposing of all issues in the case, and a notice of motion for an order carrying out the agreement;

(c) serves on all parties and files a notice of withdrawal (Form 12) that discontinues all outstanding claims in the case;

(d) schedules or adjourns the case for trial; or

(e) arranges a case conference or settlement conference for the first available date.

(6.1) If a case conference or settlement conference is arranged for a date as described in clause (6) (e), but the hearing does not take place on that date and is not adjourned by a judge, the case shall be dismissed without further notice.

(6.2) The clerk shall dismiss a case under subrule (6) or (6.1) by preparing and signing an order dismissing the case, with no costs payable by any party.

(9) A judge may, on motion, set aside an order of the clerk under subrule (6).

(2) The Standard of Review

[32] The standard of review on an appeal from an order refusing to set aside an administrative dismissal of an action under the Rules of Civil Procedure is well-established. That standard recognizes that such an order is discretionary and entitled to deference on appeal. Appellate interference is justified only if the motion judge “proceeded on an erroneous legal principle or made a palpable and overriding error with respect to the facts … [or] where the lower court gives no or insufficient weight to relevant considerations”: Fuller, at para. 19.

[33] The appellant submits, and the respondent did not contest, that the same standard of review should apply to the review of a refusal to set aside an administrative dismissal under the Family Law Rules. I agree.

DISCUSSION

(1) The Fuller Principles Apply to Family Law Administrative Dismissals

[34] I agree with the motion judge that the principles derived in the context of civil cases, such as Fuller, are appropriate to inform the approach to motions under r. 41(9) of the Family Law Rules. Although the motion judge went on to state that those principles must be considered in the context of the primary objective of the Family Law Rules, as described in rr. 2(2)-(4), I do not read the motion judge to have been suggesting that this justified a departure from the approach in Fuller. In any event, in my view, there is nothing inconsistent between the Fuller principles and the fulfillment of the primary objective of the Family Law Rules, dealing with cases justly.

[35] Fuller holds, at para. 20, that on a motion to set aside an administrative dismissal, the court should consider the Reid factors: the length of the delay and whether there is an explanation for it, whether the failure to meet mandated time limits was due to inadvertence, whether the motion to set aside the dismissal order was brought promptly, and whether delay has prejudiced the responding party.

[36] But Fuller makes it clear that these factors are not to be treated as a rigid set of hurdles the moving party must meet. Instead, an overall contextual approach is required that takes into account those factors and all of the relevant circumstances, including the conduct of both parties. The goal is to reach a just result, bearing in mind two underlying principles that can be in tension: (i) that actions should be decided on their merits, and (ii) that actions should be resolved in a timely and efficient manner to maintain public confidence in the administration of justice: Fuller, at paras. 21-25.

[37] Fuller also explains that, in general, the court’s preference will be to decide matters on their merits. This preference will be “more pronounced” where delay results from an error of counsel, so as not to penalize a client for inadvertence of their lawyer. The rights of all parties must be considered, including whether the defendant has suffered non-compensable prejudice as a result of the delay, whether a fair trial is still possible, and whether the defendant placed justifiable reliance on the termination of the proceeding: Fuller, at paras. 25-28.

[38] Giving effect to these principles is consistent with the primary objective of the Family Law Rules: that the court deal with cases justly. An administrative dismissal order is a result contemplated by the Family Law Rules and recognizes the policy that family law cases should be resolved in a timely and efficient manner to maintain public confidence in the administration of justice. But the Family Law Rules also empower a judge to make an order setting aside an administrative dismissal, recognizing the policy that cases should be decided on their merits. Whether the primary objective is better served in a particular case by setting aside the dismissal order and allowing the case to be determined on its merits, or by leaving the dismissal order in effect because procedural rules were violated, is appropriately guided by the Fuller principles, which address exactly that question — whether upholding or setting aside the dismissal is just in all of the circumstances.

(2) The Motion Judge Erred in Applying the Fuller Principles

[39] In my view, the motion judge’s approach involved three interrelated errors in principle. First, she failed to contextually evaluate the Reid factors as Fuller requires, essentially treating one as a rigid hurdle and giving no effect to two others. Second, she gave erroneous treatment to the factor of prejudice. Third, she failed to properly consider whether upholding the dismissal order constituted a just result in all of the circumstances, by misapplying the policy favouring timely resolution of family law proceedings and not properly considering the policy that favours proceedings being determined on their merits.

(i) The Motion Judge Ignored Two Factors Rather than Treating the Factors Contextually

[40] The motion judge was entitled to find that there was no adequate explanation for the lack of activity in moving the case forward after 2018. She was right to note that, prior to the administrative dismissal, answers to undertakings given at the appellant’s questioning were not provided, no response was made to the letter of respondent’s counsel seeking answers, and no motion was brought for production from the respondent as her lawyer had, in 2018, indicated. However, Fuller is clear that the factor of delay without an adequate explanation is not to be approached as a rigid obstacle the appellant must meet, but rather a factor, among others, to be considered contextually.

[41] One of the important contextual factors is whether a dismissal was the result of inadvertence. Proper consideration of this factor may require separating the issue of overall delay from the precise reason a dismissal occurred.

[42] The motion judge accepted the evidence of the appellant’s lawyer’s assistant that she had inadvertently neglected to diarize the October 2019 dismissal date, and that this explained why the appellant’s lawyer did not deal with the case as the dismissal date was approaching. The appellant points out, and the respondent does not dispute, that the appellant’s lawyer could have dealt with the matter and prevented the dismissal from occurring at any time before the dismissal deadline simply by taking the step of arranging a case conference or settlement conference for the first available date, as contemplated by r. 41(6)(e). Family law conferences are intended to significantly move cases forward and are an essential part of the family law procedural regime aimed at attaining a just result. At a conference, a judge may make orders about disclosure, expert evidence, and time-tabling, as well as direct the parties towards out-of-court settlement of some or all issues: Family Law Rules, r. 17(8).

[43] In other words, although there was a litigation delay, the effect of it could have been avoided at any time up to October 2019, but was not, due to lawyer’s inadvertence. This was significant, for two related reasons.

[44] First, both the existence of a procedural step that could get an action back on track and avoid dismissal resulting from delay, and the reason why it was not taken, are relevant to whether it is just in the circumstances to uphold a dismissal, especially where such a procedural step is a codified option under the Family Law Rules. In Fuller, the plaintiffs’ action was not expeditiously pursued. A status notice warning the plaintiffs of impending dismissal was sent by the court to the wrong address. The action was administratively dismissed. The motion judge refused to set aside the dismissal, remarking that the plaintiffs, even if they had received the status notice and arranged a status hearing, would not have been able to meet the test at the status hearing of showing that the action should not be dismissed. This court held that the motion judge had erred in failing to consider that, because of the non-receipt of the status notice, the plaintiffs had lost an opportunity to prevent the action from being dismissed. This loss of opportunity had to be considered in assessing whether it was just to set aside the dismissal order: Fuller, at paras. 33-36.

[45] Second, the preference of the court for deciding matters on their merits, as opposed to terminating actions on procedural grounds, is “all the more pronounced” where an error of inadvertence of counsel is involved: Fuller, at paras. 26-27 and 32.

[46] The motion judge did not consider either of these points. After accepting that lawyer’s inadvertence was the explanation for why no step was taken to deal with the approaching dismissal, she did not refer to the loss of the opportunity the appellant had to avoid dismissal and get the application back on track by requesting a case or settlement conference. Nor did she refer to the significance of the lawyer’s inadvertence having made the court’s preference for the determination of the matter on its merits “more pronounced”. Instead, she immediately returned to the factor of litigation delay, concluding the lawyer’s explanation for why no step was taken to deal with the approaching dismissal deadline did not explain the delay that had occurred in the litigation during the prior year. In effect, she ignored the significance of the fact that the deadline was missed due to lawyer inadvertence and treated the prior delay as the only relevant factor.

[47] Similarly, on the factor of whether a motion was brought promptly to set aside the dismissal order, the motion judge noted that the respondent “fairly concedes that this factor has been met.” [4] But the motion judge did not further discuss what that signified or give it any weight. She did not consider this factor as one which bore on the justice of setting aside the dismissal order because, unlike the delay that preceded the dismissal, it was not behaviour which showed either inertia or a lack of interest in having the matter resolved on its merits. Nor did she consider its effect on the issue of prejudice, discussed below.

(ii) The Motion Judge Erred in Her Analysis of Prejudice

[48] The issue of prejudice to the respondent is an important one in deciding whether a dismissal order should be set aside or remain in place. It is “a key, if not the key consideration”: Chrisjohn v. Riley, 2015 ONCA 713, 391 D.L.R. (4th) 695, at para. 36 (emphasis in original). The court should consider whether there is prejudice to the defendant’s ability to defend — that is, whether a fair trial is still possible — because of events or steps that occurred following the dismissal or that would result from restoring the action. The court will also consider whether delay in moving to set aside the dismissal was so great that the principle of finality and the defendant’s reliance on the dismissal should prevail: Fuller, at paras. 37-45.

[49] Here, there was no evidence of actual prejudice affecting fair trial rights. The respondent led no evidence of any witness or document that had become unavailable. The motion judge stated that there “is no indication that evidence has been lost by the passage of time”.

[50] In a proper case, prejudice may be presumed, for example, because of the expiry of a limitation period or the death of a witness: Fuller, at para. 38. Neither circumstance was present here. The motion judge identified the only prejudice to be the passage of time. She appears to have considered this to support a presumption of prejudice because “it can be presumed that a witness’s recollections will be somewhat dimmed” by the passage of time, and because the existence of a family law case may mean that the parties are unable to move forward with their lives until it is completed.

[51] In my view, the motion judge erred in both respects. While in certain circumstances, the passage of significant time could result in prejudice, the motion judge did not relate her finding about the effect of the passage of time on witnesses’ memories to the period of approximately four months between the dismissal order and the filing of the motion to set it aside. She did not explain how witnesses’ memories would diminish during that period. In other words, she did not explain how the respondent would be worse off, from the standpoint of witnesses’ ability to recall, than he was before the dismissal. Nor did she make any finding that fair trial rights were affected. Accordingly, this finding of prejudice is tainted by legal error and cannot stand.

[52] The finding of prejudice due to the nature of family law proceedings is also tainted by error. The motion judge’s comment to the effect that in some cases, the mere existence of a family law proceeding prevents parties from moving forward with their lives could not be applied to this case without evidence that the respondent had been so affected. Although he gave evidence that the proceeding was stressful and he was relieved that it was over, he gave no evidence that he was unable to move on with his life if it continued. Indeed, during the litigation, his counsel had taken the position that his net worth, as disclosed on his Financial Statement, was so significant that he could afford any amount of support that would be ordered, and the only issue was entitlement.

[53] Moreover, the motion judge noted that the factor that the motion be brought promptly was met. She made no finding that the respondent was entitled to rely on the security of the dismissal order under the principle of finality, by reason of the appellant’s delay in moving to set aside the dismissal. Accordingly, the “oppressive” nature of family law proceedings (to use the motion judge’s term) is not a prejudice caused by the dismissal and subsequent restoration of the proceeding.

[54] Additionally, the motion judge stated that since no limitation period had expired, the appellant could, if she chose, start another proceeding. But she failed to address the significance of that: if a new proceeding could be brought, upholding the dismissal order would not remedy either fading memories or lack of closure for the parties, the impacts the motion judge referred to as arising from the passage of time.

[55] As the court noted in Williams v. Williams, 2010 ONSC 2636, 82 R.F.L. (6th) 448, at para. 19, “there must be compelling reasons not to grant the order [setting aside the dismissal] if there is no prejudice to the defendant” (see also, MDM Plastics Limited v. Vincor International Inc., 2015 ONCA 28, 124 O.R. (3d) 420, at para. 24). Here, there was no prejudice to the respondent.

(iii) The Motion Judge Failed to Consider Whether Setting Aside the Dismissal Was Just in All the Circumstances

[56] The motion judge referred to passages from Fuller, including the statement that “all of the circumstances of the case must be considered in order to arrive at a just result.” Although she expressed her conclusion including the term “the circumstances”, she did not appropriately consider the circumstances as noted above. Nor did she expressly advert, in reaching her conclusions, to the policy that actions should be decided on their merits: Fuller, at paras. 23-26. Instead, she stressed that the timelines in the Family Law Rules “are in place for a reason”, and that even though the only prejudice was the passage of time, the appellant’s delay could not be countenanced.

[57] The motion judge was entitled to consider that the Family Law Rules are in place for a reason, and that there was unexplained delay. But she was also obligated to consider that the Family Law Rules contemplate the setting aside of dismissal orders where it is just to do so, and that the factors and policies implicated in such a decision go beyond these considerations. She failed, as described above, to take into account the appropriate factors contextually, and then failed to consider whether the preferred policy of allowing actions to be determined on their merits should in this particular case bow to considerations of timely administration of justice in accordance with the Family Law Rules. Furthermore, she did not explain how upholding the administrative dismissal given the ability to start a new proceeding was consistent with the goal of saving time and expense in accordance with the primary objective of the Family Law Rules: r. 2(3)(b).

(iv) Re-Weighing

[58] Due to these errors, it is necessary to re-weigh the factors and consider whether it is just to uphold the dismissal order. In my view, the just result is to set aside the dismissal order.

[59] Although the litigation delay between late 2018 and the dismissal order was not adequately explained, the appellant had the opportunity to get the application back on track in a manner contemplated by the Family Law Rules, by arranging a case conference or settlement conference. She lost that opportunity due to her lawyer’s inadvertence. It would not be just to visit that loss of opportunity on her. She moved promptly enough to set aside the dismissal order that her right to proceed with her claim ought not, in the circumstances, yield to what under other circumstances might be the respondent’s right to rely on the finality of the dismissal. There is no prejudice to the respondent and no basis to conclude that his fair trial rights have been compromised. [5] Moving this proceeding to a family law conference is more consistent with both the goals of deciding the case on its merits and achieving a timely and efficient resolution than the alternative of upholding the dismissal and allowing the appellant to start a new proceeding.

CONCLUSION

[60] In her factum, the appellant undertakes that if her appeal is allowed, she “will immediately schedule the first available date for a Settlement Conference … and ask the Settlement Conference judge to schedule the case for trial as quickly as possible.” For the reasons above and in light of that undertaking, I would allow the appeal, set aside the order of the motion judge, and replace it with an order setting aside the dismissal order and directing that within 30 days of the release of these reasons, the appellant shall take the step set out in r. 41(6)(e). If she does not do so, her application shall be dismissed. [6]

[61] In accordance with the agreement between the parties, I would award costs of this appeal to the appellant in the sum of $5,000, inclusive of disbursements and applicable taxes. In light of the disposition of the appeal, the motion judge’s costs order in favour of the respondent will also be varied, on consent, to provide that the respondent pay the appellant $2,500 in costs for the motion, all-inclusive.

“B. Zarnett J.A.”

“I agree. L.B. Roberts J.A.”

Brown J.A. (dissenting):

[62] I strongly disagree with the disposition of this appeal proposed by my colleagues. In my view, there is no basis to interfere with the motion judge’s dismissal of Ms. Mihoren’s motion to set aside the October 26, 2019 administrative dismissal order (the “Dismissal Order”) of her application for spousal support.

[63] In R. v. G.F., 2021 SCC 20, 71 C.R. (7th) 1, the majority of the Supreme Court recalled, for the benefit of intermediate appellate courts, the importance of a functional and contextual reading of a lower court’s reasons and directed appellate courts to resist the temptation to finely parse a judge’s reasons in search of error: at para. 69. In my respectful view, my colleagues have run afoul of that direction.

[64] As my colleagues note, the motion judge’s order was discretionary and entitled to deference on appeal. My colleagues acknowledge that the motion judge accurately stated the applicable principles of law as set out in H.B. Fuller Company v. Rogers (Rogers Law Office), 2015 ONCA 173, 386 D.L.R. (4th) 262, and Reid v. Dow Corning Corp. (2001), 11 C.P.C. (5th) 80 (Ont. S.C.), rev’d on other grounds (2002), 48 C.P.C. (5th) 93 (Ont. Div. Ct.). Nevertheless, they justify interfering with her order on the basis that the motion judge erred in applying those principles and failed to give the same weight to certain considerations as my colleagues would.

(1) The motion judge recognized and applied the overarching “big picture” principles

[65] Two of the alleged errors in principle identified by my colleagues are that the motion judge failed to contextually evaluate the Reid factors and failed to properly consider whether upholding the Dismissal Order would constitute a just result in all the circumstances. Since both alleged errors concern the “big picture” framework within which the motion judge was required to perform her analysis, I will consider them together.

[66] I see no such errors.

[67] To my eye, my colleagues’ disagreement with the motion judge essentially stems from their different view of the significance of the litigation obligation the appellant failed to meet in this case, which resulted in the dismissal of her application. My colleagues open their reasons by stating: “The appellant missed a deadline, that her lawyer had neglected to diarize, by which certain steps had to be taken.”

[68] With respect, much more was involved than missing a mere deadline “by which certain steps had to be taken.” On this point, I regard the motion judge’s reasons as more realistically assessing the significance of the appellant’s litigation failure.

[69] The Family Law Rules, O. Reg. 114/99, take a more aggressive approach to “in and out of court” times for cases than do the somewhat somnambulant Rules of Civil Procedure under which an administrative dismissal of a civil action is not triggered until the fifth anniversary of its commencement: Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 48.14(1). By contrast, r. 41(5) of the Family Law Rules directs the issuance of a notice of approaching dismissal if a family law case “has not been settled, withdrawn or scheduled or adjourned for trial before the 365th day after the date the case was started”.

[70] The motion judge was alive to the policy of quicker “in and out of court” times chosen by the Family Law Rules. As she noted, at para. 17:

Rule 41(5) and (6) of the Family Law Rules puts an onus on family law litigants to move their cases forward in a timely manner. The expectation is that the case will be resolved or scheduled for trial within one year. If the litigants do not move their cases forward, and do not obtain a court order extending the timeline, the case will be administratively dismissed. [Emphasis added.]

[71] The Family Law Rules’ aggressive “in and out of court” timeline policy informed the motion judge’s understanding of the context and the “justice of the case” in which to consider the appellant’s request to revive her dismissed application. As the motion judge stated, at para. 15:

Family law cases are, by their very nature, time sensitive. They frequently involve children and issues respecting child support and residency. They often deal with families in crisis. Family law litigation is invasive and outstanding family law litigation is a heavy burden on the litigants, both financially and emotionally. I suspect that was the reason for the timelines set out in the Family Law Rules, O. Reg. 114/99.

[72] In this case, the appellant failed to meet the Family Law Rules’ fundamental expectation about the amount of time a family law case may tarry in the court system. She did not meet the expectation established by r. 41(5) that a case must be settled or scheduled for trial within one year of its commencement. The appellant then used r. 41(6)’s mechanism to avoid the dismissal of her application by consenting to the December 6, 2018 order that granted her leave to extend the time for dismissal of her case to October 25, 2019 (the “Consent Extension Order”). Her consent to that order was tantamount to an undertaking to settle, withdraw or set down her application for trial by October 25, 2019.

[73] The appellant did not fulfill her undertaking. Instead, the evidence showed that the appellant and her counsel essentially ignored the Consent Extension Order, without explanation. The administrative dismissal of her application followed.

[74] In my view, the motion judge properly recognized that the appellant’s litigation failure was not missing a mere deadline “by which certain steps had to be taken.” Instead, the appellant failed to complete her application within the time stipulated by the Family Law Rules, as extended by her undertaking in the Consent Extension Order.

[75] Accordingly, the motion judge did not fail to “contextually evaluate the Reid factors”. She did not lose sight of rendering “a just result in all of the circumstances”. The motion judge was alive to the “big picture” context in which to apply the analytical elements identified in Fuller and Reid to a family law proceeding that has been dismissed for delay.

[76] My colleagues’ reasons essentially downplay the significance of the obligation that rr. 41(5) and (6) impose on family law litigants. “In and out of court” timelines, their reasons suggest, are quite secondary to deciding a case on the merits. In support, they point to comments that originated in this court’s decision in Hamilton (City) v. Svedas Koyanagi Architects Inc., 2010 ONCA 887, 104 O.R. (3d) 689, where, at para. 20, this court quoted with approval the lower court’s comment that “[a] court’s bias is in favour of deciding matters on their merits rather than terminating rights on procedural grounds.”

[77] Much water has flowed under the access-to-justice-bridge since 2010. Chronic delays and disproportionate legal costs are now seen as barriers to a just civil and family court system in Ontario. The decisions in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 and R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631 have forced Ontario courts to rethink their traditional laissez-faire attitude toward the time it takes to move cases from their start to a final disposition on the merits.

[78] In Jordan, the Supreme Court decried the “culture of complacency towards delay” that had emerged in the criminal justice system: at para. 40. An equally virulent culture of complacency towards delay is deeply embedded in Ontario’s civil and family justice systems. The presumptive “in and out of court in one year” baseline for family law cases created by r. 41(5) of the Family Law Rules, coupled with the limited exceptions to that baseline enumerated in r. 41(6), represents an effort to root out that culture of complacency in the family law system. That presumptive one-year “in and out of court” timeline provides the overarching context in which any motion judge must consider an applicant’s request to revive an administratively dismissed family law proceeding and determine what order would be just in all the circumstances.

[79] The motion judge’s reasons disclose that she identified and applied that overarching “big picture” context when considering the appellant’s motion to revive her dismissed application. The starting point of her analysis was faithful to the legislative scheme for family law proceedings. She did not make the errors in principle attributed to her by my colleagues.

(2) The motion judge was entitled to emphasize the appellant’s unexplained delay

[80] My colleagues contend that the motion judge failed to properly consider the appellant’s explanation for her failure to fulfill the Consent Extension Order. Instead, “[i]n effect, she ignored the significance of the fact that the deadline was missed due to lawyer inadvertence and treated the prior delay as the only relevant factor”: at para. 46.

[81] While my colleagues focus their analysis on the consequences (if any) of the failure of the appellant’s lawyer to diarize the completion date set by the Consent Extension Order, the motion judge’s reasons disclose that she undertook a much broader review of the record. That broader review led her to conclude that the appellant had not provided an acceptable explanation for her delay. Specifically, the motion judge took into account that:

i. The appellant failed to comply with her undertakings in anything resembling a timely manner. The appellant was provided with a list of her undertakings on November 2, 2018, yet “[s]he took no steps to comply with those undertakings until July or August of 2020.” The motion judge noted that the undertakings were straightforward and should have been answered relatively easily within 60 days of the completed examinations, but “[t]hey were not, and there is no explanation for the delay”;

ii. The appellant never brought the motion for better income disclosure that her counsel advised the respondent in November 2018 they intended to bring;

iii. After her counsel’s letter of November 2018, the appellant took “no steps” to advance the litigation “until after the administrative dismissal order dated October 26, 2019. The applicant had already been granted an extension, yet did nothing in the ten months following”;

iv. The appellant’s evidence that she met with her counsel in February 2019 to discuss the case left the motion judge with more questions than answers as it did not explain why certain litigation tasks the appellant referred to were never completed; and

v. Respondent’s counsel wrote to appellant’s counsel on July 6, 2019 repeating his request for answers to undertakings, but his letter was ignored by the appellant and her counsel. As the motion judge stated: “There is no explanation for the failure to respond to [respondent’s counsel’s] correspondence of July 6, 2019”.

[82] Those numerous failures led the motion judge to conclude that the appellant “has not provided an adequate explanation of the litigation delay that led to the dismissal order.”

[83] Only then did the motion judge assess the effect of the failure by the appellant’s lawyer’s assistant to diarize the ultimate dismissal date of October 25, 2019 set by the Consent Extension Order. While she accepted the assistant’s explanation of “inadvertence”, the motion judge quite properly pointed out that there was more to consider because “[t]he assistant does not provide an explanation as to why no real steps were taken in the almost 12 months prior to the dismissal date” (emphasis added).

[84] Accordingly, the motion judge’s reasons disclose that the appellant’s failure involved more than a legal assistant neglecting to diarize one date, the conduct upon which my colleagues focus their attention. There was a much larger history of litigation delay by the appellant herself, as well as by her counsel and, most significantly, an absence of explanation from either for that larger delay.

[85] That larger delay led the motion judge to make a telling finding of fact: “I conclude that the applicant simply did not move forward with her claim after the first order was made extending the timelines. She displayed … inertia, at best, or a complete lack of interest, at worst.” My colleagues do not take issue with that finding. Indeed, they cannot; it is firmly anchored in the evidence. This finding of fact played a large role in the motion judge’s overall analysis. The reason why it did can be found at para. 33 of her reasons:

Under the Family Law Rules, once a case has already been extended by court order to a specific date, a new notice of approaching dismissal is not provided to the parties. In other words, they get one notice – the first time their case is on the brink of being dismissed. If an order is made extending the timelines, they do not get a second notice. The parties, or their counsel, are required to ensure that they deal with the case prior to its dismissal on the date set out in the order. [Emphasis added.]

[86] By giving that finding of fact significant weight in her analysis, the motion judge did not fall into reversible error. On the contrary, she was entitled to place more weight on that finding because, in so doing, she advanced the policy goals of the Family Law Rules and their aggressive approach to the “in and out of court” times for family law cases.

(3) The motion judge did not err in her treatment of prejudice

[87] Finally, my colleagues conclude that the motion judge gave erroneous treatment to the factor of prejudice.

[88] Although the motion judge acknowledged there was no indication that evidence had been lost during the period of the appellant’s unexplained delay, she did presume that the passage of time would “somewhat” dim the recollection of witnesses. That strikes me as a common-sense presumption. My colleagues think otherwise, in large part because they measure the relevant delay to be only four months: from the time of the Dismissal Order to the time the appellant filed her motion to set aside. With respect, I think the more appropriate calculation of delay is over two years – from the start of the application to the date the motion was filed.

[89] As well, my colleagues do not think that the respondent’s evidence about the impact of the litigation on him, which was accepted by the motion judge, should play any role in the analysis because the respondent “gave no evidence that he was unable to move on with his life”: at para. 52.

[90] I regard those differences between the motion judge and my colleagues as mere quibbles that do not rise to the level of reversible error.

[91] From her reasons, it is apparent the motion judge thought that the appellant’s lengthy delay and display of “inertia, at best, or a complete lack of interest, at worst” outweighed other factors. It was open to the motion judge to weigh the factors in that way; it was her discretionary call to make. That my colleagues might have exercised their discretion to call a strike a ball is not a basis for appellate reversal.

[92] As well, I take issue with my colleagues’ suggestion that usually the mere passage of time cannot constitute prejudice that weighs against reviving a dismissed proceeding. On the contrary, it can. Indeed, if we make any pretence to a family and civil court system that offers the Ontario public timely justice, it must.

[93] The issue of whether the passage of time per se constitutes prejudice recently arose in the context of motions to strike out civil jury notices. As I observed in a Chambers decision in Louis v. Poitras, 2020 ONCA 815, 8 C.C.L.I. (6th) 163, at para. 33:

Delay in obtaining a date for a civil jury trial can, by itself, constitute prejudice and justify striking out a jury notice. This should not be a surprising proposition. Part of the “service guarantee” to the public made in r. 1.04(1) is that courts will work to provide the “most expeditious … determination of every civil proceeding on its merits” (emphasis added). Delay in providing trial dates undermines that service guarantee. The late Willard Z. Estey, a former justice of the Supreme Court of Canada, captured the point well when he stated that “delay in the settlement or disposal of conflicting claims is … a primary enemy of justice and peace in the community”.

[94] The recognition of delay per se as causing prejudice was accepted in the subsequent panel decision in Louis v. Poitras, 2021 ONCA 49, 456 D.L.R. (4th) 164, where Hourigan J.A. wrote, at para. 22:

[T]he motion judge found that “the real and substantial prejudice arises simply by reason of delay”: at para. 46. I agree with the statement of Brown J.A. in his decision on the stay motion that this was a legally permissible finding and that “delay in obtaining a date for a civil jury trial can, by itself, constitute prejudice and justify striking out a jury notice.” As Brown J.A. notes, the whole raison d’être of the civil justice system, as captured in r. 1.04(1), is that courts will work to provide the “most expeditious…determination of every civil proceeding on its merits”: Louis v. Poitras, 2020 ONCA 815, at para. 33.

[95] The prejudice caused by the mere passage of time is more pronounced where the issue arises in the context of a litigant’s failure to meet her Rules-imposed obligation to move her case “in and out of court” within a stipulated period of time. Under the Family Law Rules, “saving expense and time” is a component of the primary objective of dealing with a case justly: r. 2(3). The ability of the Rules-imposed “in and out of court” time obligations to promote that objective turns on the willingness of courts to enforce them. If courts do not treat the passage of time as a legitimate factor to take into account when deciding whether to revive an action dismissed for the failure to comply with “in and out of court” timelines, then one might as well tear up rr. 41(5) and (6). To remove the passage of time from the table of legitimate considerations would have the effect of eviscerating the Rules-imposed timeline obligations, feed the “culture of complacency towards delay” decried by Jordan, and reward negligent lawyers by freeing them from the risk of a claim on their professional liability insurance.

[96] The motion judge’s consideration of the passage of time as prejudice was not a reversible error; it was a proper step in trying to defeat the culture of complacency towards delay in the family law system.

CONCLUSION

[97] The motion judge gave reasons that correctly identified the applicable principles of law and explained why she weighed the different factors in the way that she did. Her reasons disclose she never lost sight of the “big picture” principles that provide the necessary framework for her analysis. Removed as we are at Osgoode Hall from the reality of managing the volume of cases in the family law trenches, we might be tempted to weigh some factors differently. But that is not our job. The task of weighing factors falls to the motion judge. In this case, she performed that task well, within the governing legal framework.

[98] Her decision merits the support of this court, not its reversal.

[99] I would dismiss the appeal.

Released: December 16, 2021 “D.B.” “David Brown J.A.”

Footnotes:

[1] Not Mr. Zalev or Ms. Warren.

[2] Reid v. Dow Corning Corp. (2001), 11 C.P.C. (5th) 80 (Ont. S.C.), rev’d on other grounds (2002), 48 C.P.C. (5th) 93 (Ont. Div. Ct.).

[3] Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, s. 16(1)(c): “There is no limitation period in respect of … a proceeding to obtain support under the Family Law Act or to enforce a provision for support or maintenance contained in a contract or agreement that could be filed under section 35 of that Act”.

[4] The respondent argued in this court that he did not concede that the motion was prompt, just that in the circumstances, any delay in bringing it was not a consideration. In my view, that distinction is not significant.

[5] The appellant argued that there would be prejudice to her if the dismissal order was upheld which the motion judge overlooked, because the motion judge assumed the appellant could start another proceeding. The appellant suggested that a new proceeding could be met with an argument that a change in circumstances was required, or that it was an abuse of process. The respondent eschewed any reliance on a change in circumstances requirement for a new proceeding. At the same time, he reserved the right to argue that a new proceeding would be an abuse of process. Here, however, the motion judge expressly premised her decision on the recognition that “without the passage of a limitation period, the [appellant], should she choose to, can issue a new claim.” This given, I have difficulty seeing how the respondent could take advantage of the dismissal order, but then proceed to argue that a new proceeding is barred by the dismissal.

[6] In my view, were the application to be dismissed on this basis, a new proceeding seeking the same relief would properly be viewed as an abuse of process.