Court File and Parties

COURT FILE NO.: CV-11-424824 MOTION HEARD: 2016 0713 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ELOM BENJAMIN DZUAZAH, Plaintiff AND REGIONAL, MUNICIPALITY OF PEEL, POLICE SERVICES BOARD; MIKE METCALF, CHIEF OF POLICE; CST, MICHAEL VIOZZI, BADGE# 1897; DET. DAVID VAN ALLEN, BADGE#1059; CONSTABEL SCOTT HOGAN, BADGE#2085; ADULT ENTERTAINMENT ASSOCIATION OF CANADA; CANNONBALL CABARET; DIAMONDS; KENNEDY’S: LOCOMOTION (THE NEW); MATHESON’S; MILLION DOLLAR RESTAURANT; D. ATLANTIC INC., CARRYING ON BUSINESS AS TREASURES; 1094388 ONTARIO LIMITED, CARRYING ON BUSINESS AS PURE GOLD, Defendants

BEFORE: Master Lou Ann M. Pope

COUNSEL: Agent for counsel for plaintiff: Sam R. Sasso, Ricketts Harris LLP Fax: 416-260-2217

Counsel for defendants, Regional Municipality of Peel Police Services Board, Mike Metcalf, Chief of Police, Cst. Michael Viozzi, Badge #1897, Det. David Van Allen, Badge #1059 and Constable Scott Hogan, Badge #2085: Eugene G. Mazzuca, Blaney McMurtry LLP Fax: 416-593-5437

Reasons for Endorsement

[1] The plaintiff seeks an order to set aside the registrar’s order dismissing this action for delay dated January 16, 2014 made pursuant to former rule 48.14(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“Rules”). This motion is brought pursuant to rule 37.14.

[2] The above-noted defendants (“Police defendants”) are the only defendants who oppose this motion.

[3] The action against the following defendants was discontinued: Cannonball Cabaret, Diamonds, Kennedy’s, Locomotion (The New), Million Dollar Restaurant, D. Atlantic Inc. and 1094388 Ontario Limited.

[4] The action against the defendant, Matheson’s, has not been discontinued as the business ceased operating.

[5] The defendant, Adult Entertainment Association of Canada, did not file responding material to this motion. It has not complied with the terms of an order dated January 27, 2016 wherein its counsel was removed as counsel of record. Mr. Sasso advised the court that counsel for this defendant was served with the plaintiff’s motion material for this motion prior to its counsel being removed from the record although the affidavit of service was not filed. The plaintiff served this defendant with the motion material again after the removal order was granted; however, it was not served at the defendant’s address as set out in the removal order. Mr. Sasso indicated that he was prepared to proceed with this motion on the basis for this defendant had been served with the plaintiff’s motion material both before and after its counsel was removed from the record.

Background and Procedural History

[6] This action arises out of the plaintiff’s arrests on March 24 and June 9, 2009 with respect to human trafficking/prostitution-related offences involving two victims/complainants. The underlying events to the charges are said to have occurred in or around late 2008. All of the charges against the plaintiff were later withdrawn or dismissed at trial in 2010.

[7] A meeting took place in January 2011 with 33 individuals: 22 from the adult entertainment industry, two Peel police officers, and nine from various other public bodies. The plaintiff alleges that 30 mug shots of “notorious pimps” were circulated during this meeting and that the plaintiff’s mug shot was among them. The plaintiff complains that his mug shot was further circulated in the media.

[8] This action was commenced on April 20, 2011 against the Police defendants, the Adult Entertainment Association of Canada and eight entertainment establishments, claiming $4 million in damages for various torts including, negligence, malicious prosecution, abuse of process, breach of Charter rights, injurious falsehood, defamation and intentional infliction of nervous shock/mental distress.

[9] When the statement of claim was issued, the plaintiff’s lawyer of record was Selwyn Pieters (“Pieters”). The plaintiff was self-represented for about a month between September 6, 2011, when he delivered a Notice of Intention to Act in Person, and October 11, 2011 when the plaintiff’s current lawyer, Charlena Claxton, advised Mr. Reimer, counsel for the Police defendants, that she had assumed carriage of the file for the plaintiff. However, Ms. Claxton did not deliver a Notice of Change of Lawyer until February 23, 2012.

[10] The Police defendants served their statement of defence and Demand For Particulars on July 11, 2011. They dispute liability and damages and also plead that several claims are barred by the limitation period.

[11] By July 18, 2011, the defendants, Adult Entertainment Association of Canada, Cannonball Cabaret and 1094388 Ontario Limited had delivered statements of defence.

[12] The plaintiff delivered his response to the Demand For Particulars on August 16, 2011.

[13] Between August 2011 and February 23, 2012, the plaintiff discontinued the action against the defendants noted above in paragraph 3.

[14] No further steps were taken after the notices of discontinuances were filed, therefore on March 2, 2012, Mr. Reimer emailed Ms. Claxton and inquired about the reasons for discontinuing the actions against numerous defendants and suggesting that they have a meeting to discuss the future of the action. Ms. Claxton did not respond to this letter.

[15] No further steps were taken for the balance of 2012 and on April 16, 2013 Mr. Reimer left a telephone message for Ms. Claxton requesting that she advise him whether the plaintiff intended on proceeding with this action. Again, Ms. Claxton did not respond to this enquiry.

[16] On May 13, 3013 the registrar issued a Status Notice which states that the action will be dismissed for delay unless within 90 days of service of the notice, specified steps are taken to cure the delay or avoid a dismissal. Mr. Reimer received his copy of the Status Notice of May 14, 2013; therefore, 90 days from May 14 was on or about August 14, 2013.

[17] The plaintiff’s evidence is that he sent Ms. Claxton a letter on June 27, 2013 asking for an update on his file by July 8, 2013. He stated that he was becoming very concerned as there had been little or no steps taken since he retained her almost two years previously.

[18] On August 16, 2013, in an email, Ms. Claxton acknowledged to Mr. Reimer that “a Status Notice is due to expire on August 21, 2013” and that she was scheduling a motion to implement a timetable. She proposed that she and Mr. Reimer have a telephone conference to discuss resolution of the action. A few days later, Ms. Claxton provided Mr. Reimer with a copy of a Requisition to Schedule a Short Motion which set out three proposed dates for the motion.

[19] Also by letter dated August 16, 2013, Mr. Pieters, plaintiff’s former counsel, wrote to Ms. Claxton and inquired about the status of the action. He stated that based on checking the court file, he was aware that a status notice had been issued on May 12, 2013 and that the matter was scheduled to be dismissed on August 21, 2013. Mr. Pieters quoted portions of the Status Notice that related to curing the delay. He stated also that the plaintiff had written to her regarding the status of the action in July and that she advised Mr. Pieters that she would provide the plaintiff with a response.

[20] It is obvious from Mr. Pieters’ letter of August 16, 2013 that he spoke with Ms. Claxton around that time.

[21] On August 19, 2013, Ms. Claxton and Mr. Reimer had a telephone conversation. According to Mr. Reimer, Ms. Claxton appeared to have confirmation from the court that the action had not yet been dismissed. They discussed the upcoming motion and Ms. Claxton promised to investigate what defendants remained in the action and which ones had been released. Further, she indicated to Mr. Reimer that she would be meeting with her client soon and would discuss with him whether he would pursue this action and how.

[22] No further steps were taken and on October 31, 2013 Mr. Reimer telephoned Ms. Claxton to inquire about the status of the action. Ms. Claxton advised that she had not spoken with her client as she had indicated she would do when counsel spoke on August 19, 2013. She advised Mr. Reimer that she would call him the following day to advise him further. Ms. Claxton did not contact Mr. Reimer the next day or at any later time.

[23] Mr. Reimer took it upon himself to do a court file search in which he learned that a motion was scheduled for February 7, 2014. He had not been advised by Ms. Claxton of this date. He presumed it was scheduled by her for a motion to set a timetable as discussed with her in the summer of 2013. The plaintiff did not deliver any motion material for the February 7, 2014 motion.

[24] On November 19, 2013, the plaintiff sent an email to Ms. Claxton in which he indicated that he had tried to contact her numerous times. He stated that he sent her a “registered mail” a few weeks earlier and he had spoken with Mr. Pieters regarding reaching her. He asked Ms. Claxton for an update on his file “ASAP”. This email was also sent to Mr. Pieters.

[25] On January 16, 2014, the registrar issued an order dismissing the action for delay.

[26] Subsequent to the plaintiff’s email to Ms. Claxton on November 19, 2013, the plaintiff again emailed her on January 29, 2014 in which he refers to their meeting on January 22, 2014 and the fact that he had not heard from her since that meeting. It appears that he was waiting to hear for her in response to his inquiry as to whether she had received a notice to dismiss the action. He also inquired about the nature of the February 7th motion and requested a copy of the document. Further, he expressed his disappointment with Ms. Claxton’s promptness and made reference to waiting for her to advise him of the “numbers of my settlement”. This email was also sent to Mr. Pieters.

[27] On January 31, 2014, two days after the plaintiff’s email on January 29, 2014, Ms. Claxton did two things related to this action. Firstly, she telephoned Mr. Reimer and advised him that she had met with the plaintiff and, according to Mr. Reimer’s evidence, she hinted at some form of settlement offer on the part of the plaintiff and suggested that he would receive a letter the next business day. Mr. Reimer advised her that he had received the dismissal order from the court. It was his impression that she was not aware of the order. Secondly, Ms. Claxton sent an email to the plaintiff and advised him that she had spoken with Mr. Reimer and that he was amenable to having “potential resolution discussions”. She also asked the plaintiff to obtain documents that they had discussed at their meeting in anticipation of an upcoming settlement meeting. Lastly, she indicated that she would reschedule the motion for a timetable scheduled for February 7, 2014 until after the settlement meeting.

[28] The plaintiff’s evidence is that Ms. Claxton never advised him that the action had been dismissed.

[29] After the activity on the file on January 31, 2014, no further steps were taken by Ms. Claxton; namely, Mr. Reimer did not receive a letter regarding a purported settlement offer from the plaintiff, Ms. Claxton did not schedule a settlement meeting with Mr. Reimer, she did not follow up with the plaintiff regarding the documents she asked him to obtain for the upcoming settlement meeting, nor did she adjourn the February 7, 2014 motion to a date following the settlement meeting.

[30] On September 11, 2014, again the plaintiff emailed Ms. Claxton regarding the inactivity on his file stating: “We are back at the same point we were at the last time we met”. He requested an update. The plaintiff followed up with Ms. Claxton again by email on January 7, 2015 requesting an update and stating that she had not moved the case forward in the three years that she had been on the record for him.

[31] No further steps were taken for the balance of 2014. As Mr. Reimer heard nothing further from Ms. Claxton, he assumed the plaintiff abandoned the action and he closed his file.

[32] The plaintiff states that he became aware of the dismissal order in late April 2015 when he met with another lawyer regarding taking over carriage of this file. That lawyer advised the plaintiff that the action had been administratively dismissed.

[33] It was not until November 16, 2015 that Mr. Reimer received a letter from Mr. Sasso who purported to act as agent for Ms. Claxton regarding a proposed motion to set aside the dismissal order.

This Motion

[34] The plaintiff filed a notice of motion on December 18, 2015 for a hearing date on February 9, 2016. The only evidence filed for the plaintiff is his affidavit. He states that Ms. Claxton did not respond to requests for assistance on this motion. The Police defendants filed the affidavit of Mr. Reimer who was counsel with carriage of this file.

[35] No cross-examinations were held.

Law

[36] Subrule 48.14(10) provides that an order made under that rule may be set aside under rule 37.14.

[37] Rule 37.14(1) provides that a party who is affected by an order of a registrar may move to set aside the order, by a notice of motion that is served forthwith after the order comes to the person’s attention and names the first available hearing date that is at least three days after service of the notice of motion. The court has discretion to set aside the order on such terms as are just. (subrule (2))

[38] The plaintiff has the onus to satisfy the court that this action should be permitted to proceed.

[39] In considering whether the dismissal order should be set aside, the court will consider the following four factors while taking a contextual approach in order to achieve a result that is just in all the circumstances. It is not necessary for the plaintiffs to satisfy each of the four factors in order to have the order set aside. (Reid v. Dow Corning Corp. (2001), 11 C.P.C. (5th) 80 (Ont. Master), Finlay v. Van Paassen, 2010 ONCA 204, 2010 CarswellOnt 1543 (C.A.), at paras 27-29; Wellwood v. Ontario Provincial Police, 2010 ONCA 386; Habib v. Mucaj, 2012 ONCA 880, [2012] O.J. No. 5946 (C.A.))

a. Explanation for the litigation delay; b. Inadvertence in missing the deadline; c. Promptness in bringing the motion to set aside; d. Prejudice to the defendants.

[40] In Ross v. Hertz Canada, 2013 ONSC 1797, Master Dash provided the following summary of the guiding principles:

• A plaintiff need not satisfy all four of the Reid factors but rather a contextual approach is required;
• The key point is that the court is to consider and weigh all relevant factors to determine the order that is just in the circumstances of each particular case;
• All factors are important but prejudice is the key consideration;
• Prejudice to a defendant may be presumed, particularly if a lengthy period of time has passed since the order was made or a limitation period has expired, in which case the plaintiff must lead evidence to rebut the presumption;
• Once a plaintiff has rebutted the presumption of prejudice, the onus shifts to the defendant to establish actual prejudice;
• Prejudice to a defendant is not prejudice inherent in facing an action in the first place but prejudice in reviving the action after it has been dismissed as a result of the plaintiff’s delay or as a result of steps taken following the dismissal of the action;
• The party who commences the litigation bears the primary responsibility under the Rules for the progress of the action; and,
• In weighing the relevant factors, the court should not ordinarily engage in speculation concerning the rights of action a plaintiff may have against his or her lawyer but it may be a factor in certain circumstances, particularly where a lawyer’s conduct has been deliberate. The primary focus should be on the rights of the litigants and not with the conduct of their counsel.

Analysis

[41] I will address the four Reid factors that the Police defendants submit the plaintiff has not satisfied.

Explanation for the Litigation Delay

[42] The plaintiff must adequately explain the delay in the progress of the action from the institution of the action until the deadline for setting the action down for trial as set out in the status notice. The plaintiff must satisfy the court that steps were being taken to advance the litigation toward trial, or if such steps were not taken to explain why. (Reid v. Dow Corning Corp. [2001] O.J. No. 2365, at para. 41)

[43] Therefore, the plaintiff herein must adequately explain the delay from April 20, 2011 when the action was commenced to mid-August 2013, the deadline for setting the action down for trial as set out in the status notice.

[44] The following are the salient steps in this action.

• March 24 and June 9, 2009 - plaintiff was arrested and charged
• April 20, 2011 – statement of claim was issued
• July 11, 2011 - pleadings were delivered up to and including this date
• July 11, 2011 – police defendants delivered a Demand For Particulars
• August 16, 2011 – plaintiff delivered a Response to Demand For Particulars
• September 6, 2011 - plaintiff delivered a Notice of Intention to Act in Person
• February 23, 2012 - Notices of Discontinuance were filed up to this date
• February 23, 2012 - Notice of Change of Lawyer filed by Ms. Claxton
• May 14, 2013 - Status Notice issued which provided 90 days to cure the delay
• Mid-August 2013 - Ms. Claxton filed a Requisition to Schedule a Motion with the court for a motion to set a timetable; a motion date of February 7, 2014 was subsequently scheduled
• January 16, 2014 - Registrar’s dismissal order issued
• November 16, 2015 – Mr. Sasso advised Mr. Reimer of his intent to schedule this motion
• December 18, 2015 – plaintiff filed a notice of motion to set aside the registrar’s dismissal order returnable February 9, 2016

[45] After the action was commenced on April 20, 2011, the action was defended relatively quickly with defences being delivered up to July 11, 2011. However, there was some delay given the plaintiff electing to represent himself in September 2011 by delivering a Notice of Intention to Act in Person. However, one month later he had retained Ms. Claxton who assumed carriage of the file.

[46] Aside from discontinuing the action against numerous defendants, the plaintiff took no steps to advance this action after defences were delivered. For example, there was no attempt to agree to a discovery plan, the plaintiff did not deliver his affidavit of documents and produce his Schedule “A” documents, no requests of the defendants to deliver their affidavits of documents, and examinations for discovery were not scheduled. Further, there is no evidence from the plaintiff that he provided his counsel with his relevant documents. On that point, I find that it is reasonable to conclude that the plaintiff did not provide his counsel with his relevant documents early in the action, particularly given Ms. Claxton’s statement in her email to the plaintiff on January 31, 2014 in which she asked the plaintiff to obtain the documents in anticipation of a settlement meeting.

[47] Arguably, the only step taken to advance this action from April 10, 2011 when it was commenced, to mid-August 2013, the deadline to set the action down for trial, was when Ms. Claxton filed a Requisition to Schedule a Motion with the court for a motion to set a timetable. Even if it is accepted that this was a step taken to advance the action to trial, the motion was scheduled for a date six months in the future on February 7, 2004. Secondly, Ms. Claxton’s choice of scheduling a motion was not one of the listed steps in the status notice that would cure the delay and avoid a dismissal order. In fact, that is exactly what happened as we see that the action was dismissed on January 16, 2014.

[48] The plaintiff was unable to explain the delay other than to state that he always intended to prosecute this action to trial, he never abandoned this action, and he was not advised by his counsel that a status notice had been issued. As stated above, there is no evidence that the plaintiff provided relevant documents to either of his counsel or that he signed an affidavit of documents. Further, there is no evidence that he communicated or met with either of them regarding the next step in this action.

[49] Simply put, there is no explanation whatsoever for the delay during this period and the failure to take any steps to advance this action to trial. Furthermore, the plaintiff has not explained the reason why no steps were taken.

Inadvertence in Missing the Deadline

[50] The plaintiff or his solicitor must lead satisfactory evidence to explain that they always intended to set the action down within the time limit set out in the status notice, or request a status hearing, but failed to do so through inadvertence. In other words, the dismissal order was made as a result of inadvertence. (Reid, at para.41)

[51] The plaintiff characterizes Ms. Claxton’s conduct as inadvertent when she failed to do the following:

• advance the action to avoid the dismissal order;
• advise the plaintiff of the status notice and the dismissal order;
• take steps to avoid the dismissal order by convening a status hearing or arranging for a new timetable;
• take steps to set aside the dismissal order

[52] The difficulty with the plaintiff’s assertion that Ms. Claxton’s conduct was inadvertent is that there is no evidence from Ms. Claxton to explain her conduct. The plaintiff’s evidence is clear that he was dissatisfied with the way in which Ms. Claxton was handling his file by his numerous communications with her requesting updates. I accept the plaintiff’s evidence that Ms. Claxton acted contrary to his instructions to advance the action; however, it does not explain whether Ms. Claxton inadvertently or deliberately missed the deadline. For example, there is no evidence to explain whether or not Ms. Claxton diarized the two-year deadline to set the action down for trial, or to explain why she did not request a status hearing after receipt of the status notice.

[53] Molloy J. in Nadarajah v. Lad 2015 ONSC 4626, at paragraph 32, addressed the test for inadvertence where, in the action before her, plaintiff’s counsel failed to have a tickler system. She stated:

There is a continuum of conduct under this umbrella. If counsel deliberately did not do something for tactical or strategic reasons and a dismissal order was the result, this would be a strong factor weighing against setting aside the dismissal order. On the other end of the continuum is a slight misstep or oversight in otherwise conscientious conduct, such that a deadline gets missed notwithstanding the existence of an efficient tickler system and careful supervision of it. No individual and no system can be perfect and mistakes can sometimes occur. Such circumstances would be inadvertent at the other end of the continuum from deliberate conduct and would weigh strongly towards granting relief to the plaintiff. However, within the spectrum of inadvertent conduct there are vast differences. The conduct of the plaintiff’s counsel in this case, while not deliberate, was egregious. It is at the opposite end of the spectrum from inadvertent conduct that could be considered to be a mere slip. As such, in weighing all of the factors, this factor would tend to weigh against the plaintiff notwithstanding that the conduct itself was inadvertent, as opposed to deliberate. The weighing process is qualitative, not quantitative. It is not a matter of how many of the four tests are satisfied by the plaintiff, but the relative merits and weaknesses of the circumstances in each of the categories.

[54] In my view, there is simply no evidence upon which I could find that Ms. Claxton deliberately failed to diarize the deadline to set the action down for trial or deliberately refused to request a status hearing. On the other hand, there is at least some evidence to conclude that she missed the deadline due to inadvertence. She was attentive to the file shortly after the action was commenced by discontinuing the action against several defendants. She responded to the demand for particulars. She attempted to respond to the status notice by scheduling a motion to obtain a timetable, albeit, an improper step. In my view, using Justice Molloy’s continuum of inadvertence, Ms. Claxton’s conduct was on the opposite end of the continuum from conduct that could be considered to be a mere slip, while not deliberate, was egregious.

[55] For the above reasons, this factor weighs against the plaintiff.

The Motion is Brought Promptly

[56] The plaintiff must demonstrate that he moved forthwith to set aside the dismissal order as soon as the order came to his attention. (Reid, at para. 41)

[57] Before I can determine this factor, I must first consider when the plaintiff learned of the dismissal order.

[58] The plaintiff states that he first learned of the dismissal order in late April 2015 at a meeting with another lawyer regarding the possibility of retaining new counsel.

[59] The Police defendants submit that there is strong evidence to suggest that the plaintiff, through Mr. Pieters, was aware of the dismissal order by late January 2014.

[60] Firstly, Mr. Pieters was aware that a status notice had been issued on May 12, 2013 as he confirmed same to Ms. Claxton in his letter dated August 16, 2013. He stated that according to the court file a status notice had been issued on May 12, 2013 and that the matter was scheduled to be dismissed on August 21, 2013. Secondly, several months later the plaintiff asked Ms. Claxton whether she had received a dismissal order in his email to her on January 29, 2014. However, he also inquired about the motion on February 7, 2014 and a timetable. Further, it is clear from the evidence that the plaintiff and Mr. Pieters were communicating throughout this action.

[61] I am not persuaded that the plaintiff had actual knowledge that the dismissal order had been issued until late April 2015. I accept there is some evidence that suggests he may have known of the dismissal order earlier, it is not conclusive particularly because of his inquiry of Ms. Claxton on January 29, 2014 about the motion on February 7th and a timetable. It is equally plausible that he may have believed that Ms. Claxton was going to be able to cure the delay at the motion on February 7, 2014 by obtaining a new timetable.

[62] Therefore, for the above reasons, I am satisfied on the evidence that the plaintiff learned of the dismissal order in late April 2015.

[63] Approximately seven months after the plaintiff learned of the dismissal order in late April 2015, the Police defendants learned on November 16, 2015 that the plaintiff, through Mr. Sasso, intended to bring this motion.

[64] The plaintiff has put forth no evidence of what transpired during those seven months.

[65] While I accept that Mr. Sasso acted promptly in bringing this motion after being retained, I do not accept that the plaintiff acted promptly to set aside the dismissal order after learning of it in late April 2015.

Prejudice

[66] The plaintiff must convince the court that the defendants have not demonstrated any significant prejudice in presenting their case at trial as a result of the plaintiff’s delay or as a result of steps taken following the dismissal of the action. The court takes note that witnesses’ memories generally tend to fade over time and that sometime it is difficult to locate witnesses or documents. However, to bar the plaintiff from proceeding with her action on the ground of prejudice, the defendant must lead evidence of actual prejudice. This might include evidence of specified documents lost over time, or destroyed following a dismissal, or of specific witnesses who have died, or have disappeared and the defendant has been unable to locate them with due diligence. While litigation is outstanding the defendants must take care to obtain and preserve evidence. (Reid, at para. 41)

[67] There is no automatic presumption of prejudice with the passage of time or the limitation period. Prejudice to a defendant may be presumed, particularly if a lengthy period of time has passed since the dismissal order was made or the limitation period has expired. This is to be determined by the court taking a contextual approach to all of the facts. Prejudice to a defendant is not prejudice inherent in facing an action in the first place but prejudice in reviving the action after it has been dismissed as a result of the plaintiff’s delay or as a result of steps taken following the dismissal of the action. (Ross v. Hertz Canada)

[68] Where the presumption arises, the plaintiff bears the burden of rebutting the presumption, on proper evidence. Where the presumption is so displaced, the onus shifts to the defendant to establish actual prejudice. The plaintiff can overcome the presumption by leading evidence that all relevant documents have been preserved, that key witnesses are available or that certain aspects of the claim are not in issue. (Wellwood v. Ontario Provincial Police, 2010 ONCA 386, at paras. 60, 62)

[69] The plaintiff led no evidence to show that the Police defendants will not be prejudiced in their defence is the action is reinstated. His evidence relates only to alleged prejudice he will suffer if the dismissal order is not set aside given the expiration of the limitation period and thus his inability to commence a fresh action. He states that this proceeding is of utmost importance to him as it arises out of a violation of his personal rights due to his arrest, incarceration and prosecution which were found to be unjustified. He wants his day in court so that the action can be determined on its merits.

[70] Given the plaintiff’s absence of evidence on this factor, I find that the plaintiff has failed to meet his onus to demonstrate that the Police defendants would not be deprived of a fair trial if the action were reinstated.

[71] Despite this finding, I am required to consider the Police defendants’ evidence on the issue of prejudice.

[72] The Police defendants contend that they will suffer actual prejudice if the action is reinstated for several reasons. Firstly they submit that as the defamation claims do not depend on documents or records, the key evidence will come from the testimony of various witnesses, including the attendees at the January 2011 meeting. In particular, two of the police officers who attended that meeting have retired, as have the defendant police chief and another involved officer. Secondly, there is no evidence that the action will proceed expeditiously if it is reinstated as Ms. Claxton remains lawyer of record and the Adult Entertainment Association of Canada is no longer represented by counsel. There is no evidence from the plaintiff that he has, or will soon, retain new counsel.

[73] I find that the Police defendants have not demonstrated that they will suffer prejudice if the action is reinstated. The fact that some of the defendant police officers have retired does not amount to prejudice as there is no evidence that they are unavailable for trial. Further, the Police defendants’ speculation that there will be more delay in this action is merely that – speculation. There is evidence from the plaintiff that he was attempting to find new counsel in late April 2015 when he met with another lawyer who advised him of the dismissal order. In his submissions, Mr. Sasso indicated that if the dismissal order is set aside, he would request a timeline for the plaintiff to retain new counsel and thereafter a timeline to agree to a timetable to protect the action from languishing.

[74] In conclusion on this factor and for the above reasons, I find that there will be no prejudice to the Police defendants if this action is allowed to proceed.

Additional Factors

[75] The Rules regarding administrative dismissals were amended effective January 1, 2015 whereby former Rules 48.14 and 48.15 were revoked and replaced with the current Rule 48.14.

[76] These recent amendments to rule 48.14 may be a relevant factor on a motion to set aside a dismissal order for delay. Actions commenced on or after January 1, 2015 will now be dismissed for delay by the registrar five years after the date of commencement. Had new rule 48.14 applied to this action, it would have been dismissed for delay if it had not been set down for trial by April 20, 2016, being five years from the date the action was commenced on April 20, 2011. This action was dismissed on January 16, 2014, over two years before it would have been dismissed had the amended rule applied to this action. In this respect, it is my view that the amendments to rule 48.14 are a relevant factor on this motion as the dismissal order was made more than two years before the expiry of the new timeline in new rule 48.14. In other words, had the new rule applied to this action, the plaintiff’s action would not have been up for dismissal on January 16, 2014 and the plaintiff would have had more time to retain new counsel and move the action ahead. For those reasons, it is my view that the amendment to rule 48.14 favours the plaintiff.

Conclusion

[77] The plaintiff failed to meet his onus regarding the first three Reid factors. However, I found that there will be no prejudice to the Police defendants if the action is reinstated. The courts have held that prejudice is the key factor when assessing the case in all the circumstances.

[78] In my view, the majority of the delay in this action was caused by the failure of Ms. Claxton to take the necessary steps to advance the action. The plaintiff continued to inquire of Ms. Claxton regarding the status of the action and an explanation why it had not been advanced. The only period of delay that can be attributed to the plaintiff himself is, as I found above, the delay in bringing this motion after learning of the dismissal order in April 2015. Prior to that time, the delay was caused by Ms. Claxton.

[79] Our courts have also held that a party should not be prejudiced as a result of his lawyer’s conduct and that the focus on these motions is the party’s right to have his action heard on the merits and not dismissed for technical reasons.

[80] I find that if there was any prejudice as a result of the delay to the Police defendants is far outweighed by the prejudice which the plaintiff would suffer if the action were not allowed to proceed to trial. Therefore, taking a contextual approach to the facts herein, I exercise my discretion under rule 37.14(2) to set aside the registrar’s dismissal order made on January 15, 2014. Having done so, it must be emphasized that the plaintiff has been granted a significant indulgence which must be taken seriously and understood that the court will not tolerate any further unnecessary and unexplained delay. It is now more than five years since this action was commenced and if new rule 48.14 applied to this action, the plaintiff would now have to explain the delay.

[81] For that reason, the parties shall adhere to the following strict timetable for the balance of the steps in this action:

1. the plaintiff shall have until September 19, 2016 to retain new counsel and for that counsel to deliver a Notice of Change of Lawyer;
2. complete examinations for discovery by November 30, 2016;
3. answer undertakings within 60 days of the date of the examination;
4. hearing of any motion arising out of discoveries within 120 days of the date by which undertakings were to be satisfied;
5. complete mediation by May 1, 2017;
6. set the action down for trial no later than August 1, 2017.

Costs

[82] The plaintiff did not seek costs of this motion irrespective of the result. The Police defendants did not seek costs if the dismissal order was set aside. Therefore, there is no order as to costs.

(original signed) Master Lou Ann M. Pope July 21, 2016