Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20220207 DOCKET: C69085

Huscroft, Sossin and Favreau JJ.A.

BETWEEN

Steven Burgess, Natasha Burgess, Clara Burgess by her litigation guardian Steven Burgess, and Ella Burgess, by her litigation guardian Steven Burgess Plaintiffs/Moving Parties (Appellants)

and

University Health Network, Altum Health, Dr. Linda Dvali, Dr. Amer Al-Kudmani, and Jane Doe Defendants/Responding Parties (Respondents)

Counsel: Martin P. Forget and Riley McIntyre, for the appellants Daniel Girlando, for the respondent University Health Network Andrew Kalamut and Emilie Bruneau, for the respondents Dr. Linda Dvali and Dr. Amer Al-Kudmani

Heard: January 31, 2022 by video conference

On appeal from the order of Justice Kevin B. Phillips of the Superior Court of Justice, dated January 7, 2021.

Reasons for Decision

[1] This appeal is from the order of the motion judge dismissing the appellants’ motion to extend the timetable and dismissing the appellants’ action. For the following reasons, the appeal is dismissed.

Background

[2] The facts giving rise to the action are straightforward. Steven Burgess injured his arm in a cycling accident in 2011 while working as a by-law enforcement officer for the City of Ottawa. He received benefits under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A (the “WSIA”).

[3] On June 17, 2014, on the eve of the expiry of the limitation period, this action was commenced by Statement of Claim. The appellants allege that the care he received at the respondent hospital, including surgery on his right arm, made the injury he sustained worse. The appellants also claimed against the respondent physicians who provided him with treatment. None of the respondents filed defences.

[4] The WSIA subrogates any action of a plaintiff to his or her employer. In this case, the plaintiff’s action was subrogated to the City of Ottawa (the “City”). Under s. 30 of the WSIA, the appellants were required to obtain the City’s consent prior to issuing their claim. It was in the City’s discretion whether to grant that consent.

[5] The appellants accepted that the action could only be commenced or continued with the City’s consent. They first contacted the City to obtain its consent in 2015. Based on oral communications, appellants’ counsel (not the same counsel as counsel arguing the appeal) proceeded from that time forward on the basis that the City’s consent was forthcoming. The respondents, advised of the purported consent in 2015, requested that it be provided to them in writing. The City, however, did not provide the requested consent in writing. Negotiations proceeded between 2015 and 2017 on the terms of the agreement between the City and the appellants. No agreement was reached.

[6] The negotiations ended in 2017, and no further steps were taken to obtain the City’s consent for over two years. In June 2019, just before the matter was to be administratively dismissed for delay, the appellants served their notice of motion for a status hearing to extend the set down date. While the original return date for the status hearing was September 2019, several adjournments followed and the status hearing did not occur until January 2021.

[7] In November 2020, two months before the parties were scheduled to appear on the status hearing, the appellants finally obtained the City’s written consent.

[8] At the status hearing, pursuant to r. 48.14 of the Rules of Civil Procedure, R.R.O. 1990, Reg 194, the motion judge dismissed the motion to extend the set down date and dismissed the action for delay. He held that the appellants failed to provide an acceptable explanation for the delay in prosecuting their action, and that the appellants had failed to rebut the presumption of prejudice that would result if the action were permitted to proceed.

Analysis

[9] All parties agree that the motion judge is entitled to deference in his decision to dismiss the motion for an extension of time and to dismiss the action for delay. The dismissal order may only be set aside if the motion judge has made a palpable and overriding error of fact, or reached a decision based on an erroneous legal principle reviewable on a correctness standard: 1196158 Ontario Inc. v. 6274013 Canada Ltd., 2012 ONCA 544, 112 O.R. (3d) 56, at para. 16.

[10] Rule 48.14 of the Rules of Civil Procedure states:

(1) Unless the court orders otherwise, the registrar shall dismiss an action for delay in either of the following circumstances, subject to subrules (4) to (8):

1. The action has not been set down for trial or terminated by any means by the later of the fifth anniversary of the commencement of the action and January 1, 2017.

(5) If the parties do not consent to a timetable under subrule (4), any party may, before the expiry of the applicable period referred to in subrule (1), bring a motion for a status hearing.

(6) For the purposes of subrule (5), the hearing of the motion shall be convened as a status hearing.

(7) At a status hearing, the plaintiff shall show cause why the action should not be dismissed for delay, and the court may,

(a) dismiss the action for delay; or

(b) if the court is satisfied that the action should proceed,

(i) set deadlines for the completion of the remaining steps necessary to have the action set down for trial or restored to a trial list, as the case may be, and order that it be set down for trial or restored to a trial list within a specified time,

(ii) adjourn the status hearing on such terms as are just,

(iii) if Rule 77 may apply to the action, assign the action for case management under that Rule, subject to the direction of the regional senior judge, or

(iv) make such other order as is just.

[11] Rule 48.14 requires that courts balance the objective of resolving disputes on their merits with the objective of resolving disputes in a timely and efficient manner in order to maintain public confidence in the administration of justice. The role of the judge presiding over a status hearing is to ensure that justice is served for all of the litigants: 1196158 Ontario Inc., at para. 41.

[12] On a motion under r. 48.14, the moving party must establish that (a) there was an acceptable explanation for the delay; and (b) if the action were allowed to proceed, the defendant(s) would suffer no non-compensable prejudice; Faris v. Eftimovski, 2013 ONCA 360, at para. 11. In this case, the motion judge found that the appellants had not established either prong of the test.

[13] The appellants assert that the motion judge misapprehended or overlooked certain evidence, resulting in palpable and overriding errors. Specifically, the appellants contend that the motion judge erred in finding: (a) that the delay was caused by the appellants; (b) that the respondents did not acquiesce to the delay; and (c) that the respondents would suffer non-compensable prejudice. As a result of these errors, the appellants argue the motion judge’s decision should be set aside and their action reinstated, with an extension of time to set the action down for trial.

[14] The appellants rely on Mihoren v. Quesnel, 2021 ONCA 898, released after the motion judge’s decision. In Mihoren, at para. 36, this court held that, in the context of an appeal from an administrative dismissal of an action, a plaintiff’s explanation for delay should be considered contextually. The appellants argue that although this case is not an administrative dismissal, the motion judge in this case should have considered the appellants’ explanation of their delay contextually.

[15] The respondents argue that the evidence before the motion judge supports his finding that the appellants’ decision to pursue better financial terms in exchange for the City’s consent does not amount to an acceptable explanation for the inordinate delay over the five-year period after the claim was issued. Moreover, it was reasonable for the motion judge to find that the respondents never waived or acquiesced in respect of the delay.

[16] We agree. In our view, nothing in this case turns on the way in which the appropriate test is described. The motion judge considered the record, including the relevant context, and concluded that the delay was both inordinate and not acceptably explained by the appellants. That finding is amply justified.

[17] The respondents argue that, while the inordinate delay was in itself a sufficient basis to decide the motion, the motion judge reasonably found that the appellants had failed to rebut the presumption of prejudice caused by the unexplained delay. According to the respondents, it was open to the motion judge to determine that the memories of individuals, including the yet to be identified nurse defendant Jane Doe, would be compromised, and that the fairness of any trial would be jeopardized.

[18] We agree. This is an unusual case, in that the action was never properly commenced. Moreover, by the time the matter got to the motion judge, virtually no steps had been taken. No statement of defence was filed – with the appellants’ consent – no affidavits of documents had been exchanged, and no examinations for discovery had taken place. This court has recognized that the passage of an inordinate length of time after a cause of action arises presumptively gives rise to trial fairness concerns. As Sharpe J.A. stated in 1196158 Ontario Inc., at para. 42: “If flexibility is permitted to descend into toleration of laxness, fairness itself will be frustrated. As the status hearing judge recognized, even if there is no actual prejudice, allowing stale claims to proceed will often be unfair to the litigants.” The problem is pronounced in this case, and the appellants have presented no persuasive argument to rebut this presumption.

[19] In our view, there is no basis to disturb the motion judge’s decision. There was ample evidence in the record on which to base his conclusion on both prongs of the r. 48.14 test. We do not accept the argument that he committed palpable and overriding errors in doing so.

Disposition

[20] The appeal is dismissed, with costs to the respondents.

[21] The parties have agreed on the quantum of costs. Pursuant to that agreement, the appellants shall pay $5,000 to the respondent physicians and $2,500 to the respondent hospital.

“Grant Huscroft J.A.”

“L. Sossin J.A.”

“L. Favreau J.A.”