Court File and Parties
COURT FILE NO.: CV-13-482727 DATE: 20190109 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
TAMARA SLOTA Plaintiff/moving party – and – KENORA-RAINY RIVER DISTRICTS CHILD AND FAMILY SERVICES, EMILE JENKS and BETTY JENKS Defendants/responding parties -and- NAIRN FAMILY HOMES INC. and HER MAJESTY THE QUEEN IN THE RIGHT OF ONTARIO Third Parties/responding parties
Counsel: Judith Hull and Flora Vineberg, for the Plaintiff/moving party Gary J. McCallum and Harvey Stone, for the defendant/responding party Kenora-Rainy River Districts Child and Family Services Robert Sinding for the defendant/responding party Betty Jenks (a.k.a. Betty Janke) Counsel in attendance for the Her Majesty the Queen in the Right of Ontario (the “Province”) but not Appearing; no one attending or appearing for Nairn Family Homes Inc.
HEARD: November 5, 2018
REASONS FOR DECISION
KIMMEL, J.
[1] This is a contested status hearing under Rule 48.14(5) of the Rules of Civil Procedure R.R.O. 1990, Reg.194. The plaintiff brings this motion following a case conference before D.A. Wilson, J. on May 24, 2018 at which the defendants to the main action exercised their right to require the plaintiff to show cause at a status hearing why the action should not be dismissed for delay before agreeing that a timetable be set for further steps in the action. As a result of that attendance, this motion was booked to be heard by a judge.
[2] For the reasons that follow, I have decided not to dismiss this action and to allow it to continue, on the basis of a timetable that is set out at the end of these reasons.
Background
[3] This is an historic sexual abuse case in which the plaintiff claims that she was sexually assaulted while she was a foster child in the Janke [^1] home in the early 1980’s under the supervision of the predecessor to the Kenora-Rainy River Districts Child & Family Services (the “CFS”).
[4] The Statement of Claim was issued on June 14, 2013. In a letter dated September 17, 2013 following a demand for particulars made in August of 2013, counsel for the CFS indicated that: “In light of the fact the (alleged) incident complained of took place thirty years ago, it is likely that many of the parties with knowledge of events are elderly and nearing Mr. Janke’s state [deceased]. Under these circumstances Ms. Slota has more than the usual obligation to advance proceedings as expeditiously as possible.”
[5] Almost immediately thereafter, in September of 2013 the CFS raised various concerns with the Statement of Claim and maintained the position that it could not defend until the pleadings issues were resolved. A supplementary demand for particulars was delivered in March of 2014 and a motion for particulars and to strike portions of the Statement of Claim was served in April of 2014. That motion was not heard until almost a year later, on March 16, 2015. The motion was decided on March 28, 2015 [^2], with the result that the Statement of Claim was amended on April 13, 2015. Because of the manner in which the motions unfolded, while there was divided success on the two matters eventually argued, the plaintiff was awarded $6,000.00 in costs. I will refer to this period from June 2013 to April 2015 as the “Particulars Period”.
[6] Once the issues that had been raised with respect to the Statement of Claim had been addressed on the motion, the plaintiff delivered a Notice of Discontinuance against the defendant Emil Janke (deceased). Betty Janke and the CFS both delivered their defences in May of 2015 and then the CFS advised of its intention to issue third party claims and requested an extension in time to do so.
[7] The CFS had to provide notice to the Province of the third party claim that was eventually issued in September of 2015. The Province defended the main action and cross-claimed against Betty Janke and the other third party on October 29, 2015. The other third party defendant was not asked for a defence but eventually filed a defence to the main action and cross-claimed against the Province and the other defendants on June 27, 2017. I will refer to this period from May of 2015 to June of 2017 as the “Defence and Third Party Claim Period”. There was some correspondence between counsel for the CFS and the Province (copied to other parties) in July of 2017 about the pursuit of possible insurance coverage for the CFS by the Province.
[8] Shortly after the motion and amendments to the Statement of Claim, in June 2015 plaintiff’s counsel suffered a catastrophic fire at her office, causing unavoidable delays in all of her files. Plaintiff’s counsel has attested that she found it difficult to practice for a period of time after this and that she had to prioritize files that had fixed deadlines and bookings. While counsel for the responding parties have questioned the length of delay that should be attributed to this event, they did not cross examine on plaintiff’s counsel’s affidavit. The affidavit of plaintiff’s counsel suggests that following the office fire she did not get back to work on this file for approximately a year, until June of 2016. I will refer to this period from June of 2015 to June of 2016 as the “Catastrophic Fire Period”. During this period (that overlapped with part of the Defence and Third Party Claim Period), there is nothing in the record to indicate that the defendants protested or raised any concerns about the conduct, or pace, of the action.
[9] In June of 2016 counsel for the CFS wrote to plaintiff’s counsel asking whether the plaintiff intended to continue with her action and advised that, if she did, the CFS had instructed its counsel to bring a motion for partial summary judgment on certain grounds pleaded in its defence that the CFS contended would reduce the remainder of the action to insignificance. Plaintiff’s counsel responded on July 12, 2016 to indicate that the plaintiff did intend to continue with her action. In August of 2016, plaintiff’s counsel advised that she expected to be instructed to defend the intended summary judgment motion and asked to see the draft motion material in order to determine the plaintiff’s final position. No draft (or final) summary judgment motion material was provided.
[10] On November 27, 2017 (after the remaining third party had defended the main action and cross-claimed against the other defendants, including the CFS) counsel for the CFS advised that he intended to attend at Civil Practice Court (“CPC”) in January of 2018 to fix a date for the threatened summary judgment motion. That attendance was never scheduled.
[11] In the meantime, on February 20, 2018 plaintiff’s counsel wrote to counsel for the other parties noting the June 14, 2018 set down date for trial, proposing a timetable and seeking the other parties’ positions on it.
[12] Counsel for the CFS sent a letter dated February 28, 2018 in response to the proposed timetable for the action circulated by plaintiff’s counsel on February 20, 2018, advising that:
a. The CFS will be bringing a motion for partial summary judgment. I will prepare a draft timetable for the motion, which I will circulate for the comments of the parties. Once it is finalized we will attend CPC, at which time you may also ask the court to address your proposed timetable for the steps to be taken after the motion; and
b. The CFS will consider a reasonable timetable for the steps to be taken after the motion. The timetable that was included with your email of 20 February was not it. If you wish to propose a reasonable timetable we will, as I said, consider it without making any commitment to accepting it.
[13] I will refer to the period from June of 2016 to February of 2018 as the “Threatened Summary Judgment Motion Period”.
[14] In March and April of 2018 there was various correspondence following a request by the plaintiff for case management, which led to the case conference before D.A Wilson, J. on May 24, 2018 and to the eventual scheduling of this motion. I will refer to this period from March to May of 2018 as the “Case Management Request Period”.
[15] The five-year set down date for this action expired on June 14, 2018. This motion was scheduled in May of 2018 to be heard in October of 2018 and then was adjourned to November 3, 2018. I will refer to this period from May 2018 to November 2018 as the “Status Hearing Period”.
[16] There has been no documentary or oral discovery in the main action or in the third party action. The parties have not agreed to a discovery plan under Rule 29.1 or a timetable under Rule 48.14(4).
[17] At the hearing of this motion on November 5, 2018, counsel for the CFS advised that they no longer intend to proceed with the threatened summary judgment motion if the action continues. There is nothing in the record to suggest that this had been communicated to plaintiff’s counsel prior to November 5, 2018.
The Positions of the Parties
The Plaintiff’s Position
[18] The plaintiff contends that this action has been stalled due to positions and tactics of the defendants (primarily the CFS) throughout. The plaintiff maintains that, after the Particulars Period ended in the spring of 2015 (which the CFS concedes is a period of shared responsibility), the various blocks of time in the action are substantially accounted for by the Defence and Third Party Claim Period and by the Threatened Summary Judgment Motion Period (during which the confirmed position of counsel for the CFS was that it would require that the motion be heard before any timetabled steps could be taken in the action). The threat of the summary judgment motion persisted even beyond February of 2018 and through the Case Management Period and the Status Hearing Period.
[19] Plaintiff’s counsel also points to certain unusual circumstances, such as the tone and manner of communication between counsel and the toxic litigation environment that existed during the Particulars Period that she maintains has plagued the conduct of these proceedings, and such as the Catastrophic Fire Period, as part of the explanation for the lack of progression of the action after the Spring of 2015.
[20] The plaintiff also contends that both the presumption of, and alleged actual, prejudice to the defendants is rebutted in this historic sexual abuse case because it is one in which the passage of time and ensuing loss or frailty of potential witnesses is inevitable and expressly contemplated by statute given that there is no limitation period for making the claim that is the subject of this action (that, when it was commenced five years ago, already related to events dating back over 30 years). For example, the defendant Emil Janke had died before the action was commenced and some of the other witnesses passed away prior to the spring of 2015 and during the initial Particulars Period that the CFS concedes is one of “shared” responsibility. Further, the plaintiff suggests that the evidence of Betty Janke can be preserved before trial if need be. There is no indication in the record that the plaintiff’s memory has deteriorated since the action was commenced and plaintiff’s counsel contends that it is her client’s credibility that will determine the outcome of this case.
[21] The plaintiff also argues that this is primarily an historic document case, and a case that would primarily involve documents in the possession of the defendants or third parties that they will have either preserved or destroyed in the ordinary course, long before the action was commenced (such as the July 13, 1983 letter sent by counsel of record in this action for the CFS, then acting for Emil Janke, seeking to have his name expunged from the Child Abuse Register that was disclosed in November of 2015 by counsel for the Province). Further, the plaintiff contends that the defendants have been on notice since the claim was served (and since the third party action was served) of the essence of the allegations that would inform them as to the documents that they need to preserve, even if an affidavit of documents was not served on, or demanded of, them. To the extent that there are historic documents in the plaintiff’s possession, control or power that are relevant, they too will either have been preserved or destroyed in the ordinary course prior to the commencement of the action.
The Responding Parties’/Defendants’ Positions
[22] Counsel for the CFS acknowledges shared responsibility for the initial two year delay during the Particulars Period. While denying that a toxic environment has plagued the conduct of these proceedings, counsel for the CFS also maintains that all examples of the toxic tone and manner of communication that plaintiff’s counsel points to occurred during the Particulars Period. Counsel for Betty Janke contends that she should not be saddled with any responsibility for the Particulars Period or the toxic communication that ensued during it.
[23] Both responding parties maintain that the plaintiff’s failure to take any steps to move the action forward from and after the Particulars Period that ended in the spring of 2015 has not been sufficiently explained or accounted for by the plaintiff and that this is fatal to the plaintiff’s position on this motion, particularly in light of the September 2013 letter sent by counsel for the CFS suggesting a heightened burden on the plaintiff to move the matter forward expeditiously given that one key participant (Emil Janke) had already died and others could soon suffer the same fate.
[24] While they dispute that any actions on their part are the cause of any delay, they maintain that the steps that they took (during the Defence and Third Party Claim Period and the Threatened Summary Judgment Motion Period) in no way interfered with the plaintiff’s ability to prosecute the action and so are not relevant to the determination of this motion. They also maintain that the plaintiff was required to put in an affidavit herself and cannot meet her burden by relying on her solicitor’s affidavit.
[25] The responding defendants also contend that, while they do not have an onus to show prejudice (which is presumed and they say is not rebutted by the plaintiff), they have demonstrated actual prejudice suffered by the delay due to the aging and fading memory of Betty Janke and other prospective witnesses, and the deaths of some prospective witnesses who knew the Janke family and/or the plaintiff at the relevant time. They maintain that the loss of the testimony of these prospective witnesses is exacerbated because the plaintiff has served a jury notice. They further contend that documents may not have been preserved by them or the third parties, even since the commencement of the action, because of the lack of precision about what the plaintiff is alleging, which has not been fleshed out through the discovery process. They also raise concerns about the availability of documents from the plaintiff that might be relevant to the damages claimed, based on speculation about OHIP records that may not be available because of OHIP’s record retention practices.
[26] It is the position of the responding defendants that there is no rule against the dismissal of an action at the first status hearing and that the purpose of a status hearing is not to try to help the plaintiff get the action back on track.
The Test Under Rule 48
[27] Where a plaintiff seeks to avoid administrative dismissal under Rule 48.14 if an action that has not been set down for trial by the fifth anniversary of the commencement of the action, and the parties do not agree to a timetable (as provided for under Rule 48.14(4), the plaintiff may bring a bring a motion to convene a status hearing under Rule 48.14(5). At the 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 the action should proceed,
i. Set deadlines for the completion of the remaining steps necessary to have the action set down for trial…and order that it be set down for trial…within a specified time,
ii. Adjourn the status hearing on such terms as are just,
iii. ...
iv. Make such other order as is just.
[28] The test under Rule 48.14 has two parts: the plaintiff must demonstrate first that there is an acceptable explanation for the delay in prosecuting the action and second that if the action were allowed to proceed the defendant would suffer no non-compensable prejudice (*Faris v. Eftimovski*, 2013 ONCA 360 (Ont. C.A.) at para. 32).
[29] This two-part test has been applied in the Rule 48.14(5) cases since Faris and various guiding principles have emerged. In a recent decision, the court conveniently summarized in one place various of these guiding principles that were cited to me by the parties in this case (see *Cedrom - Sni Inc. v. Meltwater Holding*, 2017 ONSC 3387 (Ont. S.C.J.) at para. 6):
a. The test is conjunctive, not disjunctive. Even if the plaintiff can provide a satisfactory explanation for the delay, the action will be dismissed if there would be prejudice to the defendant. And if the plaintiff is not able to provide a satisfactory explanation for the delay, it is still open to the court to dismiss the action, even if there is no proof of actual prejudice to the defendant. (See: *1196158 Ontario Inc. v. 6274013 Canada Ltd.*, 2012 ONCA 544 (Ont. C.A.) at para. 33)
b. The responsibility to move the action along lies chiefly with the plaintiff. (See: Faris, supra, at para. 33) However, the conduct of a defendant is also a factor to be considered in determining whether the action should be dismissed for delay or allowed to proceed. (See: *Carioca's Import & Export Inc. v. Canadian Pacific Railway*, 2015 ONCA 592 (Ont. C.A.) at para. 53) The conduct of the defendant may be particularly relevant where the defendant engages in tactics that are not consistent with a willingness to see a case proceed expeditiously; however, a defendant cannot be accused of “lying in the weeds” to gain a tactical advantage in the absence of any initiative on the part of the plaintiff. A defendant should not be required to spend time and money to prepare for a case that is dead on the vine. (See *1196158 Ontario Inc. v. 6274013 Canada Ltd.*, 2012 ONCA 544, at paras. 29 and 30; see also *Bolohan v. Hull*, 2012 ONCA 121, at para. 17 [which indicates that a defendant’s conduct in the litigation could still have a bearing on the assessment of the reason for the delay])
c. The possible dismissal of an action for delay involves a careful balancing between the interests of the parties and society in timely and efficient justice on one hand and in the resolution of disputes on their merits, on the other. (See: *Kara v. Arnold*, 2014 ONCA 871 (Ont. C.A.) at para. 9; see also Faris, supra, at para. 24)
d. There is little to be gained in debating whether there is a bright line between the "contextual approach" applicable to motions to set aside registrar's dismissal orders (*Scaini v. Prochnicki*, 2007 ONCA 63 (Ont. C.A.) at para. 23) and the approach taken in Faris to status hearings. In considering the reasonableness of any explanation for delay, the status hearing court will almost invariably engage in a weighing of all relevant factors in order to reach a just result. (See: Faris, supra, at para. 13 and Kara, supra, at para. 13)
e. It is reasonable to approach the plaintiff's explanation for the delay in an action on the basis that "the longer the delay, the more cogent the explanation must be". (See: Kara, supra at para. 17)
f. The prejudice at issue is to the defendant's ability to defend the action as a result of the plaintiff's delay, not as a result of the sheer passage of time. (See: *MDM Plastics Ltd. v. Vincor International Inc.*, 2015 ONCA 28 (Ont. C.A.) and Carioca’s Import & Export Inc., supra at para. 57)
g. A defendant's lack of display of any sense of urgency undercuts any claim of actual prejudice. (See: *Aguas v. Rivard Estate*, 2011 ONCA 494 (Ont. C.A.) at para. 19 and *H.B. Fuller Co. v. Rogers*, 2015 ONCA 173 (Ont. C.A.) at para. 42)
[30] It has been said that the intended balance between the objective of timely and efficient justice and the objective of resolving disputes on their merits is, in part, reflected in the onus on the plaintiff at the status hearing which appears to suggest a heavier emphasis on the objectives expressed in Rule 1.04 to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits (see: *Deverett Professional Corporation v. Canpages Inc.*, 2013 ONSC 6954 (Div. Ct.), at paras. 14-16).
[31] Other principles arising from the jurisprudence about Rule 48.14 from the Court of Appeal suggest that:
a. The judicial officer presiding over a status hearing is not to aim to fix a tardy action but to dismiss it unless there is cogent evidence on the record establishing a reason not to (see *Wellwood v. Ontario Provincial Police*, 2010 ONCA 386, 102 O.R. (3d) 555).
b. Wellwood, supra, does not require the plaintiff to adduce affirmative evidence to rebut the presumption of prejudice that arises from the passage of time in prosecuting an action or from the expiry of a limitation period. Rather, in evaluating the strength of the presumption of prejudice, the master or motion judge must consider all of the circumstances, including the defendant’s conduct in the litigation (see *MDM Plastics Ltd. v. Vincor International Inc.*, 2015 ONCA 28, 124 O.R. (3d) 420, at para. 32, citing *Aguas v. Rivard Estate*, 2011 ONCA 494, 107 O.R. (3d) 142 at paras. 18-19).
c. The onus is on the plaintiff to show that the defendant is not prejudiced by the delay. Prejudice to the defence that exists regardless of the plaintiff’s delay is not relevant. Furthermore, the defendant cannot create prejudice by failing to take steps to defend the case or to do something that it reasonably could or ought to have done, such as interviewing witnesses or conducting surveillance or otherwise preserving relevant evidence (see *Labelle v. Canada (Border Services Agency)*, 2016 ONCA 187, 346 O.A.C. 155 at paras. 16 and 23).
d. According to *1196158 Ontario Inc. v. 6274013 Canada Ltd.*, 2012 ONCA 544, 122 O.R. (3d) 67, at para. 19, failure to enforce rules and orders undermines public confidence in the capacity of the justice system to process disputes fairly and efficiently. On the other hand, procedural rules are the servants of justice not its master. We must allow some latitude for unexpected and unusual contingencies that make it difficult or impossible for a party to comply. We should strive to avoid a purely formalistic and mechanical application of time lines that would penalize parties for technical non-compliance and frustrate the fundamental goal of resolving disputes on their merits. As Laskin J.A. stated in *Finlay v. Van Paassen*, 2010 ONCA 204 101 O.R. (3d) 390 (Ont. C.A.), at para. 14: “the Rules and procedural orders are construed in a way that advances the interests of justice, and ordinarily permits the parties to get to the real merits of their dispute.”
[32] Prejudice may arise in any case from the prospect of witnesses no longer being available, from faded memories, or from lost or unidentified documents; witnesses are frequently required to testify about things long past (1196158, at para. 43). “It would be nice if trials could take place within a short time after the event, but that does not occur. There are things that can be done to help alleviate the problems associated with this.” (*Kerr v. CIBC World Markets Inc.*, 2013 ONSC 7685, 316 O.A.C. 192 (Div. Ct.), at para. 80).
[33] Much attention in the argument of this and other cases under Rule 48.14 has been focussed on the distinction between the principles to be applied under the test to set aside a Registrar’s order dismissing an action for delay as opposed to the test on a contested status hearing. It is clear that the Faris line of cases is the appropriate one to follow on a contested status hearing. However, the parties (and the cases) acknowledge that certain elements of the tests are the same (for example, the need to establish that there is no non-compensable prejudice to the defendants) and, in those instances of overlapping principles, there may be useful guidance in cases from both streams.
Analysis
Issues to be Decided
[34] Although not specified in Rule 48.14, it is clear from the case law that the issues to be decided on a contested status hearing are:
a. Has the plaintiff provided an acceptable explanation for the delay in prosecuting the action that justifies its continuation?
b. If the action is allowed to proceed, has the plaintiff satisfied the court that the defendant would suffer no non-compensable prejudice?
Has the Plaintiff Provided an Acceptable Explanation for the Delay?
[35] While I agree with the defendants that there are things that the plaintiff could have done to move this action forward in a more timely and efficient manner, that is not the test on a contested status hearing. The question is whether the delay has been sufficiently explained to justify the continuation of the action. In my view, the explanations provided by plaintiff’s counsel are within a reasonably acceptable range when considered in the context of the conduct of this particular action. The five plus years since the commencement of this action can be broken down into blocks of time that are accounted for as follows:
a. The Particulars Period (June 2013 to April 2015);
b. The Defence and Third Party Claim Period (May 2015 to June 2017);
c. The Catastrophic Fire Period (June 2015 to June 2016);
d. The Threatened Summary Judgment Motion Period (June 2016 to February 2018);
e. The Case Management Request Period (March 2018 to May 2018); and
f. The Status Hearing Period (May 2018 to November 2018).
[36] I do not agree with the contention of counsel for the defendants that the explanations must come from the plaintiff herself. I am prepared to accept the explanations from her counsel’s affidavit and from the other material in the record before me about what was occurring during each of these periods of time as I have defined them. The issue in this case comes down to whether, after the initial two year delay for which the CFS accepts shared responsibility during the Particulars Period, it is acceptable that the plaintiff was in reactive mode, waiting for the defences to the main action from the defendants and third parties and waiting for the CFS’s threatened summary judgment motion that never materialized, and that she only pro-actively started to try to move matters along in 2018 during the Case Management Request Period and the Status Hearing Period. While this course of conduct may not be acceptable in every case, there are some unique features of this one that, in my view, do render it acceptable here:
a. In this action, the CFS did not press the second third party for its defence with the result that its defence and cross-claim in the main action was not delivered until the fall of 2017 [^3]. While a plaintiff can (as the defendants have noted) bring a motion under Rule 29 to sever a third party claim or for other relief or directions if a third party claim is delaying the main action, I do not consider that it is something that a plaintiff must do in order to demonstrate an acceptable course of action at a status hearing, especially in a case like this where the third party defendants did eventually defend the main action and cross-claim against the named defendants. The defendants were complicit in the delays associated with the completion of the third party defences and cross-claims during the Defence and Third Party Claim Period. It is not unreasonable to expect that the completion of these pleadings would, in the ordinary course, precede discoveries. In the context of this particular proceeding (which includes the litigation environment that was established during the Particulars Period and the subsequent overhang of the threatened summary judgment motion by the CFS) the plaintiff has an adequate explanation for why she did not press the other parties to schedule discoveries.
b. The Catastrophic Fire Period is another unusual feature of this case, which in my view entitles the plaintiff to some latitude, especially given that the time that plaintiff’s counsel attributes to this event (and other scheduled matters that were given priority) coincided with part of the period of delay associated with the Defence and Third Party Claim Period. The defendants suggest that any special circumstances and latitude that the plaintiff may be afforded as a result of the catastrophic fire should be restricted to a much shorter time frame based on initial correspondence from plaintiff’s counsel in which she indicated an anticipated shorter period of delay. However, the defendants did not cross examine plaintiff’s counsel on her affidavit and challenge her with these earlier letters and, on the record before me, I do not consider it would be reasonable for me to infer that the extent and length of the disruption caused by the fire was limited in the way that the defendants suggest. The defendants also contend that the fire is not an acceptable excuse for any delay because, as a general rule, the inability of counsel to perform duties (due to inadvertence or negligence or otherwise) is not an acceptable explanation for delay at a status hearing (see *Lamb v. Bank of Montreal et al*, 2013 ONSC 6404, at para. 48). They argue this could and should have been avoided through the assignment of the file to other counsel failing which the plaintiff would have recourse against her solicitor if the action is dismissed for delay. If the catastrophic fire were the sole factor explaining the delay after April 2015 I agree that it would not be a sufficient explanation, but in this case it is just another added layer of special circumstances that overlaps with other explanations for the delay over the same time frame and it is a factor to be considered.
c. Another unusual feature of this case is the acrimony between counsel, particularly counsel for the CFS and the plaintiff. While it primarily manifested itself during the Particulars Period, it set an uncooperative tone which is evident in later dealings among counsel and it informs the actual and anticipated positions taken in later periods, such as during the Threatened Summary Judgment Motion Period.
d. The CFS threatened a summary judgment motion and its position (confirmed in correspondence from its counsel in February of 2018 from which I can reasonably infer was the position all along) was that no steps could be taken in the action by the plaintiff until after the summary judgment motion. Again, while the plaintiff could have attempted to challenge this position, I do not believe that she is required to have done so in order to satisfy her onus on a status hearing. The defendants were complicit in the delays associated with the Threatened Summary Judgment Motion Period.
e. While this motion was only threatened by one defendant, the CFS, the other defendant Betty Janke did not oppose it or raise any concerns about its impact on the conduct or prosecution of the action during the Threatened Summary Judgment Motion Period. Furthermore, Rule 48 is directed to the question of whether the action should continue and should not be used to dismiss a claim against one defendant if the plaintiff can justify its continuation against others. (See *Walderman v. CMC Markets Canada Inc.*, 2017 ONSC 6802)
f. The delays during the Case Management Request Period and Status Hearing Period are not solely attributable to the plaintiff – the acrimony that has been present between counsel throughout these proceedings in my view contributed to the plaintiff’s request for case management and to obstacles and suspicions being raised that delayed scheduling; furthermore, the correspondence in the record indicates that there were legitimate scheduling conflicts on both sides that resulted in some delays, none of which were unreasonable in my view.
[37] While the focus of the inquiry on a Rule 48.14 status hearing is the plaintiff’s conduct, the conduct of the defendant can, and in this case does, have a bearing on the assessment of the plaintiff’s explanations for the delay. The defendants’ conduct may not, on its own, be fatal to a request to have the action dismissed at a status hearing, but it may demonstrate that there is shared responsibility for the delay which the CFS concedes (at least insofar as the Particulars Period) is a relevant consideration (see *Bolohan v. Hull*, 2012 ONCA 121, at para. 17). I do not agree with the submission of the defendants that their conduct is only relevant if it actually prevented the plaintiff from moving the action forward.
[38] Here the defendants’ conduct was focussed on requiring the plaintiff to address procedural matters before discoveries and before any determination of the issues on the merits (particulars, motions to strike, third party claims, and a threatened “dispositive” summary judgment motion). They have not conducted themselves in a way that demonstrated that they were looking for a timely resolution of the action. While Betty Janke was less directly involved in some of the procedural matters, and she did not voice any concern about the delays that were created by steps taken or threatened by the CFS.
[39] Notwithstanding the early declarations of concern about the need to preserve evidence of aging defendants and witnesses, in my view the defendants in this case engaged (or acquiesced) in procedural tactics that were not consistent with a desire to see the case proceed expeditiously. After the initial correspondence from counsel for the CFS in September of 2013, there is nothing in the record to indicate concerns having been raised by either of the defendants about fading memories or witnesses dying until this motion was brought.
[40] This is not a case where the plaintiff took no initiatives. The plaintiff addressed the various demands for particulars and concerns raised by the CFS about the statement of claim, and amended her statement of claim. She expressly indicated that she intended to proceed with the action, and requested the summary judgment motion material from the CFS when the motion was threatened. When the motion did not materialize, after the pleadings in the third party actions were finalized, she suggested case management.
[41] For the reasons outlined above, I do not think that it lies in the defendants’ mouths to suggest now that the plaintiff’s action should be dismissed because she did not insist on pursuing discoveries during the Defence and Third Party Claim Period and the Threatened Summary Judgment Motion Period.
[42] The assessment of the reasonableness of the plaintiff’s explanations of how the various periods of delay in the action are accounted for must be considered in the context of the competing policies of: expedition, efficiency and minimization of expense on the one hand, and the desire for a merits-based adjudication on the other. I agree with the defendants that the merits of the plaintiff’s case should not be assessed at this stage. Both sides have both pointed to “live” issues surrounding the base allegation of sexual assault (for example: the plaintiff notes that Emil Janke was named on the Child Abuse Registry, Betty Janke notes that he was never charged criminally and the lawyer for the CFS suggests that, at fourteen or fifteen, the plaintiff was a sexually mature young woman, not a “child” [^4]). This establishes that both policy considerations in this balancing exercise are in play in this case which means that the focus cannot solely be on expedition and efficiency.
[43] In this case, after considering and weighing all of the relevant factors, I find that the plaintiff has satisfied her onus and has provided an acceptable explanation for the delay in this action to date.
Has the Plaintiff Satisfied the Court that the Defendants Will not Suffer Non-Compensable Prejudice if the Action is Permitted to Continue?
[44] The test under Rule 48.14 is conjunctive. Even though I have found that the plaintiff has provided a satisfactory explanation for the delay, I would still be required to dismiss the action if the plaintiff cannot satisfy me that there is no non-compensable prejudice to the defendants (which may be presumed or actual). The relevant prejudice is that resulting from any delay for which the plaintiff is at fault which has or will interfere with the defendants’ ability to defend the action.
[45] Given that I have found that there is shared responsibility on the part of the defendants for the delays in the action to date during the various periods as I have defined them, it is open to me to find that there is no prejudice from delay for which the plaintiff is solely at fault and thus no non-compensable prejudice of the nature contemplated under this Rule.
[46] I will nonetheless address the arguments about both presumed and actual prejudice.
i. Presumed Prejudice
[47] Because this is an historic sexual abuse case, there are elements of prejudice due to the passage of time that will subsist regardless of any delay on the part of the plaintiff in the prosecution of the action.
[48] This Court of Appeal has observed that the presumption of prejudice can arise either by the passage of a limitation period or undue delay. (See MDM, supra, at para. 32). In an historic sexual abuse case such as this where there is no limitation period, we should be looking only at whether the plaintiff has rebutted any presumption of prejudice that may have been caused by her delay in the prosecution of the action. While there may be a baseline presumption that the defendants could be prejudiced in their ability to defend at trial due to fading memories and the potential for loss of witnesses and documents, it is not reasonable to presume in this case that any such prejudice is attributable to the fact that the action was not set down for trial by the June 2018 set down date. In fact, much of the evidence that the defendants have submitted goes to rebut that very presumption because some of the witnesses died before the action or during the Particulars Period that the CFS accepts shared responsibility for, and it is reasonable to infer that others who (according to the defendants) have died or become unavailable since then, would not have been alive for the trial in any event (since it necessarily would be scheduled after the June 2018 set down date). Even if the action had proceeded more expeditiously after that and had been set down for trial before the June 2018 set down date, the concerns about dead witnesses and fading memories and lost documents that have been raised would all still exist.
[49] The fact that there have not yet been discoveries in this case does not, in my view, create a presumptive prejudice regarding the preservation of relevant documents and evidence (nor is the absence of discoveries fatal to the ability of the plaintiff to rebut any presumption of prejudice). The particulars and the amended statement of claim should have provided adequate notice of the plaintiff’s claim. The defendants had an obligation to preserve relevant documents (based on the pleadings) after that, even if they were not formally asked for an affidavit of documents. It is also reasonable to expect that the defendants would take reasonable steps to identify relevant witnesses and preserve their evidence, particularly in light of the concerns about dying witnesses and failing memories that were identified at the outset by counsel for the CFS and in light of the fact that it was the position of the CFS that its threatened summary judgment motion should take place before any further steps in the action. The preservation of documents and the evidence of third party witnesses was not solely the responsibility of the plaintiff and it cannot thus be presumed that any failure to do so (and ensuing loss of evidence for trial) is attributable to the plaintiff’s delay.
[50] In all of these circumstances, I do not consider the strength of the presumption of prejudice arising from the plaintiff’s delay to be very strong, and any such presumption that arises has, in my view, been rebutted.
ii. Actual Prejudice Alleged
[51] Although not required to do so, the defendants have put in evidence that they say establishes actual prejudice to them from the plaintiff’s delay in prosecuting this action that will interfere with their ability to defend the action. The CFS points to the fact that two of its personnel with relevant information to specific allegations in the statement of claim have died since the action was commenced and a third has become too ill to discuss the case. However, a defendant cannot “create” prejudice by failing to take steps to defend or to do something that it reasonably could or ought to have done, such as interviewing potential witnesses or preserving relevant evidence (see Labelle), and this is even more so in a case like this where the defendants themselves recognized this concern from the outset, as evidenced by the September, 2013 letter from counsel for the CFS. The defendant Betty Janke raises similar concerns regarding potential character and other witnesses, which are subject to the same analysis.
[52] Betty Janke claims to have herself suffered a loss of memory and that she may have destroyed relevant documents (although she is not precise about whether that was before or after the commencement of the action). However, both defendants suggest that she is unlikely to have relevant information on the main allegation of assault (see MacCallum affidavit at para. 62 and the affidavit of Betty Janke sworn July 26, 2018, at para. 5). Furthermore, if need be, her evidence could have been preserved (and could still be preserved if this is a persisting concern).
[53] The defendants contend that this is unfair as it puts them in the position of having less favourable evidence to answer the plaintiff if they do not have “live” witnesses at trial. The plaintiff contends that the case will ultimately be decided on documents and her own credibility rather than the testimony of defence witnesses. I am not in a position to pre-determine what testimony will be most relevant or compelling, but it is a common feature of this type of case, where there is no limitation period, that there may be an imbalance of available witnesses on the defence side. I do not believe that this circumstance has been incrementally impacted by the plaintiff’s conduct of this action.
[54] Furthermore, unlike the situation in the only other historic sexual abuse case that I was referred to in the Rule 48 context (*Cavner v. Fisher*, 2017 ONSC 2819), I have not been pointed to anything that demonstrates that the concerns about Betty Janke’s deteriorating memory and the death or failing health of other potential witnesses were raised with the plaintiff before this motion, beyond the generic concern raised at the outset by counsel for the CFS which I have already provided my views about. The lack of any display of urgency on the part of the defendants undercuts the prejudice that they now allege (see Cedrom-Sni Inc. and cases cited by it, summarized above). This is even more compelling in a case such as this where one of the defendants was insisting that its threatened summary judgment motion proceed first.
[55] The defendants have also pointed to the possibility that certain of the plaintiff’s health records may not have been preserved as another potential for prejudice in their ability to challenge the damages claim. This contention would depend on there having been records lost or destroyed in the ordinary course (for example, pursuant to OHIP or other record retention policies) during the pendency of the action that ought to have been secured or preserved. There is no evidence in the record of that having occurred, nor has anyone made a cogent argument that records from such a time period would even be relevant. If this turns out to be an issue then the defendants will have the usual arguments available to them about what should flow from any failure by the plaintiff to ensure that relevant documents were preserved but I do not consider the prospect of this to be an indicia of prejudice for purposes of this motion.
[56] The question of prejudice in this case can be best assessed in the way the Court of Appeal did in *Tanguay v. Brouse*, 2010 ONCA 73: is there a substantial risk that has been created by the plaintiff’s delay in the conduct of the action that a fair trial might not be possible? In my view, the plaintiff’s conduct to date has not incrementally contributed to any such risk.
[57] The defendants also rely on the principle of “justice delayed is justice denied” but I do not think that applies to the length of the delay that has thus far occurred in this case, for which, in my view, the defendants have a shared responsibility in any event.
[58] Having considered all of the circumstances of actual prejudice raised by the defendants in this case, I do not believe that they can properly be attributed to the plaintiff’s delay in prosecuting this action. I do not believe that the ability of the defendants to defend the action or the possibility of a fair trial have been materially compromised by the plaintiff’s conduct.
Conclusion and Disposition
[59] For the reasons outlined above, I have concluded that it is in the interests of justice that I exercise my discretion to allow the plaintiff’s action to continue. Now that the CFS has confirmed that it is not proceeding with its summary judgment motion and the procedural obstacles to proceeding with the discoveries have been removed, it is appropriate for a timetable to be imposed to ensure that the remaining steps necessary for the action to be set down for trial take place as quickly as possible. Moving forward expeditiously is important for any number of reasons, but particularly in light of the concerns raised by Betty Janke about the overhang of this litigation and the toll it is taking on her and her family.
[60] I am therefore allowing the plaintiff’s action (and related third party claim) to continue on the basis of the following timetable and ordering that the action be set down for trial within the time specified below:
a. Within 30 days of the release of these reasons, each party to the main action and to the third party actions (collectively, the “parties”) shall deliver to all other parties an affidavit of documents compliant with Rule 30 and shall contemporaneously deliver to the other parties electronic and/or hard copies of the documents listed in Schedule “A” to their affidavit of documents.
b. By no later than 35 days after the release of these reasons (and earlier if possible to do so before the productions have been exchanged) the parties shall schedule their examinations for discovery to take place within 60 days after the date of the release of these reasons and they shall be conducted in accordance with Rule 31. If there are insurmountable scheduling conflicts for any party that arise within this 60-day window the parties shall work co-operatively to accommodate those conflicts within an additional 30 day window, if need be.
c. Within 30 days following the completion of the last scheduled discovery, any party who wishes to challenge the discovery productions or questions refused or taken under advisement by any other adverse party may deliver a motion for further production and/or a re-attendance, which motion shall be scheduled to be heard on the earliest possible date that is no earlier than 30 days after the service of the motion. The parties shall attempt to schedule the discovery motion(s) on dates convenient to all counsel participating but shall not be required to accommodate non-court scheduling conflicts that push the motion date beyond 30 days after the first available date.
d. The court hearing the discovery motion(s) shall determine the timeline for any further discovery productions or re-attendances having regard to my order concerning the when action must be set down for trial if the parties have not reached an agreement about that by the time of the hearing.
e. Any undertakings given on discovery shall be answered before the return of the discovery motion(s).
f. The Rules will continue to apply concerning any documents not preserved or produced, or questions not answered, that are not otherwise addressed in the context of discovery motions.
g. Any motion for documentary or oral discovery of third parties (beyond the currently named third parties who have defended the main action and are subject to the within timetable) shall take place within the timeline for discovery motions and their discovery attendances, if any, shall be scheduled within any agreed or court ordered timelines for the discovery re-attendances of the parties.
h. If there is concern about the preservation of oral testimony of aging witnesses for trial, any party who wishes to rely on their evidence shall bring a Rule 36 motion by no later than six months after the release of these reasons, which motion may include a request for directions concerning the use of an aging party’s discovery evidence at trial (if they have been discovered) and/or such other means as may be considered desirable for preserving their testimony.
i. Mediation shall take place by October 31, 2019.
j. The plaintiff shall set the main action down for trial, and the defendant CFS shall set the third party claims down for trial, by serving their trial records on all other parties by no later than December 16, 2019.
k. The parties shall thereafter comply with the Rules regarding the delivery of, and responses to, requests to admit and expert reports.
[61] The above deadlines as they relate to the timing for discovery-related matters, for the most part, correspond with the timelines that were proposed by the defendants at the hearing of the motion in response to my request for their position on the plaintiff’s proposed timetable, which they argued was unreasonable. I have provided some additional time for discovery motions in response to a concern raised in response to the defendants’ timetable by plaintiff’s counsel, and I have expanded on some of the steps in the hope that this will be a more complete road map for getting the action and third party claims ready for trial. I am not prepared at this stage to adopt the defendants’ suggestion of requiring expert reports to be exchanged before any mediation and before the action is set down for trial. If any party wishes to revisit the prospect of an earlier exchange of expert reports than what is contemplated by the Rules, they may do so at some later time.
[62] Given the history of these proceedings, I have not required the parties to agree to a discovery plan but the parties are encouraged to attempt to proactively resolve any other issues that arise that could be addressed through a discovery plan, failing which the parties may raise those unresolved discovery issues on the discovery motions. I have not explicitly provided for case management but do not intend to foreclose any party from applying for case management should it be considered appropriate.
[63] If the action is not set down for trial by December 16, 2019 due to any failure on the part of the plaintiff to meet deadlines that are solely within her control (and not dependent on the co-operation, or lack thereof, from other parties) that deadline shall be considered peremptory to the plaintiff at any future status hearing that may be convened or on any motion to strike brought by the defendants.
Costs
[64] The defendants argued that, regardless of the outcome, the plaintiff is seeking an indulgence and they should either be awarded their costs, or there should be no costs. The plaintiff argued that because of the defendants’ conduct and failure to agree to a timetable or propose an alternative timetable before the status hearing, she should be awarded her costs, or there should be no costs.
[65] While I have not dismissed the action as the defendants urged me to do, they were within their rights to require the plaintiff to show cause why the action should be dismissed for delay. That said, I have found that they have a shared responsibility for the delays in moving this action forward. In my view, and in the circumstances before me, it is fair and reasonable that there be no order with respect to the costs of this status hearing.
Kimmel, J.
Released: January 9, 2019
[^1]: Although incorrectly named as “Jenks” in the style of cause, these reasons will refer to the individual defendants by their correct surname of “Janke”. [^2]: This date of March 28, 2015 comes from the Affidavit of Gary McCallum sworn July 20, 2018 (the “McCallum Affidavit”), at para. 19, in which he corrects the date of the motion reflected in plaintiff’s exhibit 19. [^3]: While the CFS says that it chose not to insist on the second third party defence pending confirmation that the plaintiff intended to proceed with the action, that confirmation was provided in a letter from plaintiff’s counsel in July of 2016, shortly after the end of the Catastrophic Fire Period and yet the CFS did not demand the defence but, rather, focused its attention on a threatened summary judgment motion. [^4]: McCallum Affidavit, para 14 (c)