Court of Appeal for Ontario
Date: 20220413 Docket: C69385
van Rensburg, Nordheimer and Harvison Young JJ.A.
BETWEEN
Grillo Barristers P.C. Plaintiff/Defendant by Counterclaim Respondent (Appellant)
and
Kagan Law Firm P.C., Daria Kagan and Natasha Baksh Defendants/Plaintiffs by Counterclaim Appellants (Respondents)
Counsel: Gregory Sidlofsky and Peter Neufeld, for the appellant Brendan F. Morrison and Samantha Hale, for the respondents
Heard: March 11, 2022 by video conference
On appeal from the order of Justice Andrew Pinto of the Superior Court of Justice, dated March 31, 2021, with reasons reported at 2021 ONSC 2317, allowing an appeal from a decision of Associate Judge Jay Josefo, dated September 18, 2019, with reasons reported at 2019 ONSC 5380.
Reasons for Decision
[1] Following the appellant’s submissions, the court dismissed the appeal for reasons to follow. These are those reasons.
[2] The respondents Ms. Kagan and Ms. Baksh worked at the appellant law firm between 2012 and 2013. The appellant alleges that, after Ms. Kagan resigned from the law firm, the respondents wrongfully solicited its clients. The appellant commenced this action in 2013. After the registrar dismissed the action for delay on February 22, 2018, the appellant successfully moved before Associate Judge Josefo to set aside the dismissal and reinstate its action.
[3] The respondents successfully appealed the associate judge’s order to the Superior Court, and the appellant appeals to this court.
[4] The appellant raises two principal and related grounds of appeal.
[5] The heart of the appeal is the argument that the motion judge erred in setting aside the associate judge’s order to reinstate the action by interpreting the applicable factors from Reid v. Dow Corning Corp. (2002), 48 C.P.C. (5th) 93 (Ont. S.C.), for reinstating an action dismissed for delay rigidly, rather than considering each factor as part of an overall contextual approach intended to take into account the court’s preference that actions be determined on their merits.
[6] We disagree. The motion judge correctly found that, while the associate judge cited the Reid test, his approach to its interpretation significantly distorted the test itself. The motion judge emphasized that the periods of delay must not be treated in isolation from another, but rather as a whole. The associate judge erred in failing to take this approach.
[7] The argument that the motion judge erred in failing to apply the test “flexibly” as Reid requires is misplaced; flexibility lies not in the application to particular periods of delay but rather with respect to a consideration of the entire delay. Here, the delay was well over 4 years and the action was nowhere close to being ready for trial. The associate judge acknowledged that the appellant had “dithered”.
[8] It is clear from the reasons that the motion judge was very much alive to the deference owed to the exercise of discretion according to the correct legal principles. Nevertheless, he went on to identify additional errors of both law and fact.
[9] He found that, while the associate judge cited the correct test, he erred in the approach he took to it which resulted in the distortion of the test itself. Namely, it was only when the litigation was not advancing at all that the associate judge considered there to be litigation delay. This was a central legal error, and sufficient in itself to set aside the associate judge’s decision. The periods of delay are to be considered as a whole, and not in isolation from one another.
[10] Moreover, and as the motion judge points out, the associate judge erred by focussing not on the explanation for the delay, but on the length of the delays. For that reason, the associate judge the first two and a half years of delay even though almost an entire year of that delay went unexplained. Similarly, the associate judge found that an additional two and a quarter years of delay was “not unforgiveable”. Consequently, the associate judge erred in law by asking whether the delay was forgivable rather than whether the delay was sufficiently explained. He did so in the face of considerable evidence that the appellant’s delay was egregious, including:
- The 13-month period between the commencement of the action and the appellant’s first reply;
- The associate judge’s finding that the appellant became “a sojourner” before returning to “being a litigant”;
- The associate judge’s finding that the appellant “stalled the process with his own lawyers”;
- The associate judge’s finding that the appellant “slumbered” for two and a quarter years;
- The appellant did not move this action beyond the pleadings stage in five years; and
- The appellant served its affidavit of document 14 months after the five-year administrative dismissal.
[11] The appellant also argues that the motion judge erred in failing to defer to the discretionary findings made by the associate judge, and in substituting his own findings and exercise of discretion for that of the associate judge without appropriate grounds to do so. We see no merit in either ground. The motion judge was not, as the appellant argues, reweighing the evidence or undermining the associate judge’s findings of fact. In the course of his careful and exhaustive reasons, the motion judge appropriately applied the Superior Court’s appellate jurisdiction.
[12] Nor did the motion judge err in failing to defer to the associate judge’s discretionary findings. It is clear and explicit in his reasons that he was alive to the deference owed in the absence of palpable and overriding error. He made detailed findings on each point which are well supported by the record before him.
[13] The appeal is dismissed. The respondents are entitled to costs at the agreed upon sum of $22,500, inclusive of disbursements and H.S.T.
“K. van Rensburg J.A.”
“I.V.B. Nordheimer J.A.”
