Court File and Parties
Court File No.: CV-18-611156 Date: 2023 07 04
Superior Court of Justice - Ontario
Re: JOANNE TSIVARAS, Plaintiff - and - THE CADILLAC FAIRVIEW CORPORATION, OTIS CANADA INC. and GDI SERVICES (CANADA) LP, Defendants
Before: Associate Justice Todd Robinson
Appearing: M. Kennedy, for the defendant, The Cadillac Fairview Corporation J. Tsivaras, in person R. Bronshtein, agent for Pace Law Firm, lawyers for the plaintiff C. Porter, for the defendant, GDI Services (Canada) LP L. Lucarini, for the defendant, Otis Canada Inc.
Heard: June 29, 2023 (by videoconference)
Reasons for Decision (Motion to Dismiss for Delay)
[1] The defendant, The Cadillac Fairview Corporation (“Cadillac”), seeks an order dismissing this action by the plaintiff, Joanne Tsivaras, for delay under subrule 24.01(1)(c) of the Rules of Civil Procedure, RRO 1990, Reg 194 (the “Rules”). Alternatively, Cadillac seeks a timetable for next steps in the action to a set down for trial. Both co-defendants support the motion.
[2] Although Ms. Tsivaras is formally represented by counsel, she was self-represented for argument of this motion after an agent for her lawyers unsuccessfully argued, in conjunction with Ms. Tsivaras, for an adjournment. The agent (who was previously the lawyer with carriage of this action on Ms. Tsivaras’ behalf) did not remain for argument of the motion after I was advised that Ms. Tsivaras had lost confidence in her lawyers and would be making submissions herself.
[3] I have decided that this action should not be dismissed for delay. Although there has now been a fairly lengthy delay in this proceeding, I am not convinced that it is sufficiently inordinate or that the delay gives rise to a substantial risk that a fair trial of the issues will not be possible. I am thereby allowing the action to proceed and fixing the timetable agreed by the parties prior to argument in the event the action was not dismissed. I am also awarding costs in favour of the defendants, although whether those costs should be payable by Ms. Tsivaras herself or by her lawyers is a matter that I address at a separate hearing to follow.
Analysis
[4] Subrule 24.01(1)(c) of the Rules permits a defendant who is not in default under either the Rules or an order of the court to move to have an action dismissed for delay where the plaintiff has failed to set the action down for trial within six months after the close of pleadings.
[5] I am satisfied that Cadillac is not in default. Based on the materials filed, pleadings have been closed since late 2019. The action has not been set down for trial, although has proceeded to the examination for discovery stage. Ms. Tsivaras was examined in October 2020. The defendants have not yet been examined. There is nothing before me supporting that Cadillac is in default of any requirement of the Rules or any order of this court. No such default was argued. Cadillac’s threshold requirement to bring this motion has thereby been met.
[6] An order dismissing an action for delay under subrule 24.01(1) is warranted where: (i) the default is intentional or contumelious; or (ii) the delay is inordinate, inexcusable, and prejudicial to the defendant, in that it gives rise to a substantial risk that a fair trial of the issues will not be possible: Langenecker v. Sauvé, 2011 ONCA 803 at para. 5. Cadillac does not seek dismissal under the first branch. It argues the second branch.
[7] Under that second branch, as noted, the delay must be inordinate, inexcusable, and prejudicial to the defendant by giving rise to a substantial risk that a fair trial of the issues will not be possible. I address each of these factors in turn.
[8] Inordinance of delay is measured simply by reference to the length of time from the commencement of the proceeding to the motion to dismiss: Ticchiarelli v. Ticchiarelli, 2017 ONCA 1 at para. 15. A delay is inexcusable where there is no “reasonable and cogent” explanation for it: Ticchiarelli, supra at para. 16.
[9] This action was commenced in December 2018. Cadillac served its notice of motion for this motion in September 2022, with motion materials served in May 2023. The action has been stalled since December 2020, when Ms. Tsivaras’ lawyer sent an email requesting that the upcoming defendants’ examinations be rescheduled, stating, “We are no longer working on this file and new counsel will need to conduct these so they should be cancelled.”
[10] I am satisfied that there is no inordinate or inexcusable delay before December 2020. Pleadings were not closed until November 2019. There is no evidence of any discovery plan being discussed or agreed or whether affidavits of documents were exchanged. I presume at least the latter has occurred, since the plaintiff was examined for discovery in October 2020. Although Cadillac has raised that the originally-scheduled examination in April 2020 was rescheduled because “the Plaintiff was unable to attend”, no source for that information is provided in the lawyer’s affidavit. Regardless, any delay from April to October for the plaintiff’s examination is not substantial.
[11] There is a lengthy delay from December 2, 2020 to this motion being brought, during which time the record before me supports repeated and ongoing follow ups from the defendants’ lawyers to Ms. Tsivaras’ lawyers on the status of the action, whether a removal motion would be brought or a notice of change of lawyers served, and whether new counsel had been appointed. Most of these emails were met with silence. An associate assisting on the file provided some response confirming her colleague remained the lawyer of record, but her colleague did not respond.
[12] Based on the record before me, it was not until April 2022 that the lawyer with carriage for Ms. Tsivaras provided an email response. It stated that “we are following up with Pace and should have a lawyer assigned shortly to carry on.” Nothing further occurred and, in late May 2022, Cadillac’s lawyers advised that this motion would be brought.
[13] Over the next several months, steps were taken to book this motion in coordination with Ms. Tsivaras’ lawyers. Plaintiff’s counsel continued to advise that the file was “in the process of being reassigned by Pace Law Firm” and that “our office isn’t handling this any longer”. This motion was thereafter booked and brought with support of the co-defendants.
[14] At the hearing before me, in support of the adjournment request that I denied, Ms. Bronshtein made various submissions on her relationship with Pace Law Firm and how this matter was being managed. It seems to me that Pace Law Firm was dealing with Ms. Tsivaras’ action in a manner that is rather confusing for both client and opposing counsel on who was actually representing Ms. Tsivaras, how carriage of the file was assigned, who was managing the litigation, and even how the litigation file was being managed. The submissions did contextualize the emails being sent, though. Nevertheless, none of Ms. Bronshtein’s submissions are in evidence before me and, in any event, it does not appear that the relationship between Pace Law Firm and Ms. Bronshtein as the “lawyer with carriage” was relayed or explained to defendants’ counsel at any point.
[15] There appears to have been a disconnect between Ms. Tsivaras and her lawyers. Ms. Tsivaras’ submissions were that she had no knowledge of anything outlined in the motion record and believed that her lawyers were handling the case. There is evidently a somewhat shocking disconnect within Pace Law Firm itself over carriage of this matter. The question for me, though, is whether the two and half year delay is inexcusable and inordinate in the circumstances of this case. I find that it is not.
[16] Subrule 48.14(1) contemplates an action being set down for trial within five years of its commencement. Near the outset of the pandemic-related lockdowns, the Legislature enacted O Reg 73/20 under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, SO 2020, c 17 (originally under the Emergency Management And Civil Protection Act, RSO 1990, c E.9). That regulation suspended limitation periods and statutory deadlines in Ontario from March 16, 2020, until it was revoked on September 14, 2020. As a result of that suspension, set down deadlines for existing civil actions were effectively extended by approximately six months. This action must accordingly now be set down for trial by June 17, 2024.
[17] There is no evidence on whether undertakings were given at the plaintiff’s examination and, if so, whether any remain outstanding. I must thereby presume there are none. That means the only substantive outstanding steps to a set down is completing examination of the defendants, addressing any undertakings that may arise from them, and mandatory mediation.
[18] The agreed timetable for next steps if the action is not dismissed would have all remaining steps to a set down completed well before the set down deadline under subrule 48.14(1). I accept that I have no evidence from Ms. Tsivaras explaining the delay (although I also appreciate that Ms. Tsivaras does not appear to have been provided a copy of Cadillac’s motion materials until after I denied the adjournment). In my view, though, I do not need it. In a case such as this one, where the action has already progressed to discoveries, I cannot reconcile proposed compliance with the presumptive five-year period to set an action down for trial with Cadillac’s position that there has been “inordinate” delay.
[19] Even if I am wrong in that, I am not convinced that the delay has resulted in a substantial risk of an unfair trial. As confirmed by the Court of Appeal, the prejudice factor is directed at the prejudice caused by the delay to the defence’s ability to put its case forward for adjudication on the merits: Langenecker, supra at para. 11.
[20] Cadillac has the evidentiary burden of demonstrating prejudice giving rise to a substantial risk that a fair trial of the issues will not be possible. It has tendered no positive evidence of any prejudice. The supporting lawyer’s affidavit speaks only to the procedural delay, not its impacts. The co-defendants have filed no materials.
[21] Cadillac’s factum points to a “key witness” security guard who purportedly witnessed Ms. Tsivaras descending the escalator on which she fell. GDI Services (Canada) LP argues that additional witnesses’ memories will be prejudiced by the delay to trial, submitting that it is typical for cases such as this one to have evidence on the maintenance systems in place, on which the defendants have not yet been examined. I give no weight to these submissions for two reasons.
[22] First, there is no evidence before me on witnesses at all, including the purported eye-witness security guard. The supporting affidavit does not discuss potential witnesses and how they have been, may be, or will be impacted by the delay. Accordingly, I have no evidence that there are any witnesses with direct knowledge of Ms. Tsivaras’ fall whose testimony may actually be impacted.
[23] Second, there is no evidence before me that the defendants have been unable to preserve relevant evidence on what was observed and the then-current maintenance systems in place. I have no evidence on what document collection was done and whether relevant witness statements were obtained. All parties to civil litigation have obligations to preserve relevant evidence.
[24] I agree that Cadillac’s onus may be met through the presumption of prejudice. There is a presumption of prejudice “inherent in long delays” that increases with the length of delay: Langenecker, supra at para. 11. On the facts of this case, there is no doubt that a presumption of some prejudice has arisen. However, the test is not that there is “some prejudice”. The test is that there is prejudice giving rise to “a substantial risk that a fair trial of the issues will not be possible.” I am not convinced that the presumption of prejudice in this case is sufficiently strong that it supports a substantial impact on the defendants’ ability to put forward their cases. They have discovered the plaintiff already. They ought to have preserved their own evidence and have put forward no evidence to suggest any prejudice beyond the presumption that memories fade with time. The agreed timetable will have the action set down for trial within the presumptive five years in subrule 48.14(1). I am unconvinced by the defendants’ arguments that a fair trial of the claim and defences on their merits is no longer possible.
[25] For these reasons, I am dismissing Cadillac’s motion insofar as the request that I dismiss the action, but am granting the motion to impose a timetable, which will be the timetable agreed by the parties while this motion remained to be called.
Costs
[26] Cadillac seeks its costs of the motion on a full indemnity basis in the amount of $3,715.65, including HST and disbursements, or, alternatively, on a partial indemnity basis in the amount of $2,696.96. GDI Services (Canada) LP seeks it costs of appearing on the motion in the amount of $1,000.00. That appears to be a full indemnity claim based on the rate claimed in the bill of costs submitted. Otis Canada Inc. only sought costs if the action was dismissed.
[27] Ms. Tsivaras has left costs of the motion to my discretion, but submits that any costs that I award should be paid by her lawyers, Pace Law Firm, and not by her.
[28] A costs award is appropriate in the circumstances of this case. In my view, this motion was necessary to move the action forward and costs should follow that success. I agree with Cadillac that, based on the record before me, this action would have continued to languish without this motion being brought. Ms. Tsivaras’ counsel barely responded until this motion was threatened. Although I have not dismissed the action, Cadillac has succeeded in securing a timetable for next steps that will have the action ready for trial by the end of the year, nearly six months earlier than Ms. Tsivaras would otherwise have had to set the action down for trial.
[29] However, I do not agree that full indemnity costs are warranted. Substantial indemnity costs are typically awarded to express the court’s disapproval of a party’s conduct, whereas full indemnity costs are to be reserved for conduct that is especially egregious: Net Connect Installation Inc. v. Mobile Zone Inc., 2017 ONCA 766. I find no egregious conduct hear warranting the highest scale of costs. I am also not convinced that, in the circumstances of this case, that the record supports conduct by Ms. Tsivaras (or her lawyers) warranting sanction by substantial indemnity costs. If poor communication and inaction alone were enough to attract heightened costs, substantial indemnity costs would (sadly) be appropriate in too many cases.
[30] For these reasons, I am awarding costs on a partial indemnity scale. The time spent and rates claimed are, in my view, reasonable and proportionate. I accordingly fix Cadillac’s partial indemnity costs of the motion in the amount of $3,715.65, including HST and disbursements, and GDI Services (Canada) LP’s partial indemnity costs in the amount of $575.00, including HST.
[31] Ms. Tsivaras’ position is that her lawyers are responsible for the delay and should be responsible for any costs of this motion. I have discretion under s. 131 of the Courts of Justice Act, RSO 1990, c C.43 to determine by whom and to what extent costs shall be paid. However, no representative of Pace Law Firm was present when costs submissions were made.
[32] The submissions made by Ms. Bronshtein and Ms. Tsivaras have raised a serious question in my mind as to whether Ms. Tsivaras or Pace Law Firm should be ordered to pay the costs. The only evidence before me supports that Pace Law Firm was failing to appropriately communicate with opposing counsel and took no steps to be removed from the record despite outwardly advising opposing counsel that they were no longer handling the file. Ms. Tsivaras appears genuine in her submissions that she was unaware of what was transpiring. In these circumstances, I find it appropriate to convene a further hearing for additional submissions, some or all of which will likely need to be in camera, on who should bear the costs liability from this motion.
[33] A further hearing shall accordingly proceed before me on a date to be booked directly through my Assistant Trial Coordinator (ATC). The hearing shall be booked for at least thirty (30) minutes by either special appointment (subject to availability) or added to one of my motions lists. Ms. Tsivaras and Pace Law Firm shall each be entitled to ten (10) minutes of submissions, with five (5) minutes of reply. They should seek to agree on who will make submissions first, but if they cannot agree it will be Ms. Tsivaras. Any case law or other materials to be relied upon by either side shall be exchanged and submitted to my ATC by email at least five (5) days prior to the hearing. Any solicitor-client privileged information or material potentially prejudicial to Ms. Tsivaras if disclosed to the opposing parties should not be served on them or uploaded to CaseLines.
[34] If any of the defendants take a position on who should pay the costs, they may also make submissions at the hearing. That should be discussed in advance and accounted for in the time booked for the hearing.
[35] Given the history of this action, I am concerned that the defendants may be left with uncertainty over who will pay the costs should the hearing I have directed not be promptly booked. In my view, given the record before me and the submissions made about what seems fairly described as surprising disorganization within Pace Law Firm over this matter, I find it appropriate to put the onus on Pace Law Firm to arrange the hearing.
[36] The further hearing shall accordingly be booked within twenty (20) days of the release of this decision. The hearing shall be booked on a date mutually available to both Ms. Tsivaras and Pace Law Firm (and any defendants’ lawyer taking a position) within forty-five (45) days of this decision, subject to my approval for a later hearing. If not booked and heard in accordance with the foregoing, the costs ordered above shall be deemed payable by Pace Law Firm, and not the plaintiff, within ninety (90) days of today’s date.
ASSOCIATE JUSTICE TODD ROBINSON DATE: July 4, 2023