Court File and Parties

COURT FILE NO.: CV-15-65229 DATE: 2024/07/05

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Ray Guillermo, Plaintiff (Responding Party) AND: John Akpata, Defendant (Moving Party)

BEFORE: Somji J.

COUNSEL: Plaintiff, Self-Represented Yavar Hameed for the Defendant

HEARD: June 11, 2024

Reasons for decision on motion to dismiss

Overview

[1] The Defendant John Akpata seeks an order to dismiss the Plaintiff’s action for defamation commenced in July 2015 on the grounds of delay pursuant to Rule 24.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. If the order is granted and the action is dismissed, Mr. Akpata intends to bring a motion for costs of the action pursuant to Rule 24.05(1).

[2] The Plaintiff Ron Guillermo opposes the motion. He seeks to reactivate the file and proceed to discovery and trial on the basis that he was unable to advance this matter over the last nine years because of the COVID-19 pandemic and insufficient funds.

[3] On June 5, 2024, I ruled that the action would be dismissed with reasons to follow. I also ruled that the parties would be provided an opportunity to make further submissions on costs. Below I set out the reasons for my findings.

Factual Background

[4] The Plaintiff filed an action for defamation in July 2015 against John Akpata and several other defendants who were involved with the Capital Poetry Collective. More specifically, Mr. Guillermo alleged that Mr. Akpata issued a defamatory post on the Capital Poetry Collective Facebook page on December 2, 2014.

[5] Mr. Akpata filed a Statement of Defence on February 11, 2016 wherein he denied the claims were defamatory and argued, in the alternative, the defences of Justification and Fair Comment. Mr. Guillermo filed a Reply on March 11, 2016.

[6] The pleadings closed in April 2016.

[7] On May 26, 2017, the matter proceeded to mediation. The matter did not settle at that time, but following the mediation, Mr. Guillermo reached a settlement with two defendants.

[8] Mr. Akpata was not part of the settlement discussions and at no time, did he agree to settle the matter or to discontinue the action. It was his intent at all times to defend the action.

[9] Between 2018 and 2023, Mr. Akpata received no update as to the status of the action. In October 2023, he made inquiries with the Ottawa Court Registry and was advised that the matter against him had been discontinued. However, the Notice of Discontinuance could not be located.

[10] The discontinuance prevented Mr. Akpata from bringing a motion to dismiss the action for delay and to recuperate any associated costs with defending the action. Consequently, on March 14, 2024, Mr. Akpata brought a motion to set aside the Notice of Discontinuance.

[11] Mr. Guillermo consented to set aside the Notice of Discontinuance. According to Mr. Guillermo’s affidavit of June 10, 2024, the Notice of Discontinuance was issued erroneously against all defendants in July 2018. Upon discovering this, Mr. Guillermo provided a written consent to set aside the Notice of Discontinuance on March 13, 2024, because it was his intent to reactive the file and proceed to discovery and trial against Mr. Akpata.

[12] On March 21, 2024, Justice Ryan Bell ordered, on consent of the parties, that the Notice of Discontinuance of the action be set aside.

[13] Mr. Guillermo was previously represented by Counsel Jeff Saikaley but does not appear to have been in contact with him between 2018 and March 2023. Mr. Guillermo provided a screen shot of an email indicating that he had reconnected with Mr. Saikaley on March 30, 2023, with the intention of re-engaging him. However, 11 months later on February 21, 2024, Mr. Guillermo filed a Notice of Intent that he would be representing himself in this matter.

Issue 1: Should the action be set aside for delay pursuant to Rule 24.01?

[14] Rule 24.01(c) entitles a defendant who is not in default 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 the pleadings.

[15] Subject to a few exceptions which are not applicable in this case, the court shall dismiss an action for delay unless the plaintiff demonstrates that dismissal would be unjust: r. 24.01(2).

[16] To succeed on a motion to dismiss an action for delay, a defendant must establish that the delay is “unreasonable in the sense that it is inordinate and inexcusable and that there is a substantial risk that a fair trial will not be possible for the defendant” if the matter is allowed to continue: Armstrong v. McCall at para 12; Longenecker v. Sauvé, 2011 ONCA 803 at para 7.

[17] Determining whether the delay is inexcusable requires consideration of the reasons for delay and whether they provide an adequate explanation. Explanations that are “reasonable and cogent” or “sensible and persuasive” can excuse the delay and allow for the matter to continue: Langenecker at para 9.

[18] The length of delay is measured from the beginning of the action up to the motion to dismiss. The court must consider the context of the action and its complexity. A period of six years since the close of pleadings has been determined to be inordinate delay: Bourque v. Nogojiwanong Friendship Centre, 2018 ONSC 2494 at para 31.

[19] Prejudice to a defendant is inherent and can be presumed in long delays. In some cases, a defendant may identify case specific prejudice. It is for the plaintiff to rebut the presumption of prejudice or actual prejudice to establish there is no substantial risk to the defendant’s right to a fair trial should the matter continue: Langenecker at paras 11, 12, and 25.

[20] In this case, the pleadings closed in April 2016. Mr. Guillermo failed to set the matter down for trial within the following six months, seek an extension of time, or take any steps to advance the matter for over eight years since the close of the pleadings. More specifically, the action was entirely dormant from 2018 to 2023.

[21] Mr. Guillermo has not demonstrated that dismissal of the action would be unjust. On the contrary, I find that Mr. Akpata would be prejudiced if the action continued.

[22] First, the resulting delay has prejudiced Mr. Akpata’s ability to secure and prepare witnesses for trial. In support of his defence, Mr. Akpata intended to rely on the evidence of the other defendants Brad Morden, Russel Priske and Aremysia Fragiskatos, all of whom were involved with the poetry collective. However, Mr. Akpata no longer has the contact information for these witnesses.

[23] For example, Mr. Akpata learned that Brad Morden has moved to South America and does not know if he intends to return. Mr. Morden’s evidence is relevant because Mr. Morden was the Director of the Capital Poetry Collective, can explain Mr. Akpata’s volunteer role in the safe space committee connected to the poetry collective, and because he has knowledge that the alleged defamatory statements identified by the Plaintiff did not involve Mr. Akpata.

[24] Similarly, Mr. Akpata is unaware of the location and contact for Ms. Fragiskatos. Her evidence is relevant to the justification defence in relation to the reasons for the content on the Facebook post. Furthermore, Mr. Guillermo alleges that Ms. Fragiskatos made false accusations and a false police report about him. Mr. Akpata argues that Ms. Fragiskatos is the primary witness who can speak to the veracity of those accusations and police report which are relevant to the content of the Facebook post.

[25] In addition, Mr. Akpata identified nine other potential witnesses in December 2016. While he was in touch with these witnesses between 2016 and 2019, he no longer has their contact information and believes that many have left Ottawa.

[26] Mr. Guillermo has not presented any evidence to the contrary with respect to the availability of these witnesses to testify to the relevant events.

[27] Based on the evidence filed, I find it would be challenging for Mr. Akpata to locate and secure the necessary witnesses for trial, and such challenges could have been mitigated had Mr. Guillermo exercised due diligence in advancing the matter in a timely manner.

[28] Second, Mr. Akpata rightly raises concerns about the ability of the witnesses and himself to recollect events that took place in relation to a Facebook post from December 2014. As stated by the Ontario Court of Appeal in Langenecker at para 11: “Memories fade and fail, witnesses can become unavailable, and documents can be lost. The longer the delay, the stronger the inference of prejudice to the defence case flowing from that delay.”

[29] In this case, almost 10 years have transpired since the events surrounding the Facebook post and those events involved competing viewpoints about the reasons for the content of the post. Furthermore, there have been no discoveries which could have captured and preserved some of the evidence while it was still fresh in the witness’ memories.

[30] Finally, Mr. Akpata claims he now has serious medical issues which have contributed to impairments in memory. Mr. Akpata acknowledges he is not as sharp as he once was. Furthermore, he has been stressed by the action hanging over him and that stress would only worsen if the matter continued and certainly not assist his medical situation.

[31] Had the action advanced in a timely manner, Mr. Akpata would have taken active steps to ensure his witness roster for trial and perhaps even taken steps to secure his own preparedness. I find that that as a result of the significant passage of time, Mr. Akpata is prejudiced in his ability to advance a complete and effective defence.

[32] Mr. Akpata cannot be faulted for not inquiring about the status of the matter sooner. The onus to advance an action is at all times on the plaintiff: Berg v. Robbins at para 18; Bourque at para 32. Furthermore, Mr. Akpata was not advised by the Ottawa Court Registry that a discontinuance notice had been issued.

[33] Finally, I find that Mr. Guillermo’s explanations do not reasonably excuse the delay. Mr. Guillermo settled with the other parties in 2018. The pandemic did not commence until March 2020. Mr. Guillermo did not take any steps to advance the matter in the 18 months preceding the pandemic or in the months following the exit from the pandemic which was certainly before the spring of 2023. Furthermore, other than his attestation, Mr. Guillermo has not provided any evidence to substantiate his claim that he was undergoing financial hardship that precluded him from advancing the matter with his counsel.

[34] In this case, the period of delay is inordinate and not excused by the Plaintiff’s explanations. Furthermore, the delay has resulted in actual prejudice to Mr. Akpata and would deprive him of a fair adjudication on the merits. There is a substantial risk that a fair trial is not possible because of the Plaintiff’s delay, and therefore, the action is dismissed.

Issue 2: Should the Defendant be awarded costs on the motion and the action?

[35] Mr. Akpata is the successful party on this motion for dismissal and is presumptively entitled to costs of the motion.

[36] In addition, where an action is dismissed for delay, a party may within 30 days bring a motion respecting the costs of the action: Rule 24.05(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[37] Mr. Akpata indicated his intention to bring such a claim should the action be dismissed in order to recuperate costs he has incurred for defending this action.

[38] During the hearing, I indicated to the parties that Mr. Akpata would be permitted to file written submissions including a bill of costs in relation to the action.

[39] Mr. Akpata shall file written costs submissions, including a bill of costs, for both the dismissal motion and the action by August 5, 2024. Mr. Guillermo shall file his response by August 19, 2024, and Mr. Akpata will be permitted a brief reply to be filed by August 23, 2024. Costs submissions are to be sent to scj.assistants@ontario.ca and to my attention. Should a further hearing be required to assess costs, the parties will be notified accordingly.

Somji J. Released: July 5, 2024