COURT FILE NOS.: CV-16-558003; CV-17-572000 MOTIONS HEARD: 20240502 REASONS RELEASED: 20240812

SUPERIOR COURT OF JUSTICE – ONTARIO

BETWEEN:

KAREN KELLY Plaintiff

• and-

WEINS CANADA INC. operating as DON VALLEY NORTH TOYOTA Defendant

BETWEEN:

KAREN KELLY Plaintiff

-and-

NISSAN CANADA INC., ASIM M. RAFIUDDIN and LUIGI MARTONE Defendants

BEFORE: ASSOCIATE JUSTICE McGRAW

COUNSEL: E. Kopiak Email: ekopiak@bensonpercival.com -for the Defendant Weins Canada Inc. o/a Don Valley North Toyota

B. Martin Email: bmartin@moodiemair.com

• for the Plaintiff Karen Kelly, LawPro counsel

M. Birdsell Email: dshingold@beardwinter.com -for the Defendant Luigi Martone

K. Dran Email: kiren.dran@economical.com

• For the Defendants Nissan Canada Inc. and Asim M. Rafiuddin

REASONS RELEASED: August 12, 2024

Reasons for Endorsement

I. Overview

[1] These are motions by the Defendants Weins Canada Inc. o/a Don Valley North Toyota (“WCI”) and Luigi Martone to dismiss these two actions pursuant to Rule 60.12 for the Plaintiff’s failure to comply with the Order of Master LaHorey (as she then was) dated July 7, 2021 (the “Order”) and for delay under Rule 24.01(1). As the Plaintiff did not comply with the deadline in the Order to set the actions down for trial the Defendants also made submissions under Rule 48.14.

II. Background and Procedural History

[2] The Plaintiff’s action against WCI arises from alleged injuries she sustained in a slip and fall at the Don Valley North Toyota dealership on August 26, 2014 (the “First Action”). The Plaintiff’s action was commenced by Statement of Claim issued on August 5, 2016.

[3] The Plaintiff’s second action relates to a motor vehicle accident on July 31, 2016 in which she was a passenger in a vehicle operated by her husband the Defendant Asim M. Rafiuddin which was struck by a vehicle driven by Mr. Martone (the “Second Action”), The Defendant Nissan Canada Inc. (“Nissan”) was the lessor of Mr. Rafiuddin’s vehicle. The Plaintiff commenced the Second Action by Statement of Claim issued on March 20, 2017. In February 2018, the Plaintiff’s original counsel was removed as lawyer of record.

[4] The Plaintiff subsequently retained Paul Druxerman on April 10, 2018. Global examinations for discovery were held on November 2, 2018. The entirety of the Plaintiff’s evidence on these motions is set out in Mr. Druxerman’s affidavit sworn November 1, 2023. Mr. Druxerman alleges that from the outset of his retainer Mr. Rafiuddin interfered with his solicitor-client relationship with the Plaintiff. This included an incident while driving home after discoveries when Mr. Druxerman called the police after Mr. Rafiuddin harassed him and the Plaintiff then refused to leave his car. Mr. Druxerman banned Mr. Rafiuddin from all meetings after this incident. Mr. Rafiuddin has failed to attend examinations for discovery on three occasions and has not been examined.

[5] In late 2018 and early 2019, the Plaintiff produced clinical records from 6 non-parties and sent invoices for records from 5 additional non-parties in satisfaction of some undertakings. Mr. Druxerman left to join another firm in April 2019. Mr. Druxerman states that he did not send the additional non-party records in a timely manner because he inadvertently did not see a letter from WCI’s counsel dated March 15, 2019 enclosing payment.

[6] After changing firms, Mr. Druxerman experienced anxiety and depression and left in January 2020 to practice as a sole practitioner. He then suffered a personal injury shortly before the pandemic which caused him to miss work. He unsuccessfully tried to return to work in June 2020 during the pandemic. He concedes that he has difficulty recalling the 2.5 years prior to the commencement of these motions.

[7] On July 6, 2021, the Defendants brought motions before Master LaHorey seeking to dismiss the actions for delay or alternatively, to establish a timetable. Mr. Druxerman states that while the parties were in a Zoom breakout room discussing a timetable, Mr. Rafiuddin directed anti-Semitic remarks towards him and attempted to represent the Plaintiff’s interests and to terminate Mr. Druxerman as her counsel. As a result of this incident, Mr. Druxerman determined that he could no longer represent the Plaintiff. Mr. Druxerman and the Plaintiff advised Master LaHorey and the parties that there had been a breakdown in the solicitor-client relationship and that the Plaintiff would be representing herself going forward. Mr. Druxerman agreed to assist the Plaintiff in preparing Notices of Intention to Act In Person (the “Notices”). Mr. Druxerman states that Mr. Rafiuddin interfered with his ability to speak to the Plaintiff or deliver the Notices so she could sign them. The Notices were served on October 21, 2021.

[8] The Order established the following timetable: i.) the Plaintiff was to answer her undertakings by November 30, 2021; ii.) mediation was to be conducted by May 30, 2022; and iii.) the action was to be set down for trial by August 30, 2022. It was also agreed that Nissan and Mr. Rafiuddin were to be examined for discovery by December 30, 2021. None of these steps were completed. The Plaintiff was also ordered to pay costs of the motion in the amount of $500 to Mr. Martone within 120 days. She has not done so.

[9] As the Plaintiff took no steps to comply with the Order, WCI’s counsel wrote to her on January 17, 2022 to advise of its intention to bring its dismissal motion. Also in January 2022, Mr. Druxerman learned that the Plaintiff had separated from Mr. Rafiuddin and agreed to represent her again. On February 14, 2022, WCI’s counsel advised that they were attempting to serve and file their motion materials for a motion to dismiss. On February 18, 2022, Mr. Druxerman advised Defendants’ counsel that he was representing the Plaintiff again, that she had moved out and not received any mail which they had been sending to her as Mr. Rafiuddin was not forwarding her mail. Mr. Druxerman states that the Plaintiff has not provided him with her new address which he believes is due to her fear that Mr. Rafiuddin will find out where she lives WCI brought its motion on February 14, 2022, amended on September 14, 2022. Mr. Druxerman delivered a Notice of Change of Lawyers on May 21, 2022. On June 28, 2022, Mr. Martone’s counsel advised that they were bringing a dismissal motion. Mr. Martone’s motion was brought on August 10, 2022. Mr. Druxerman further explains that his lap top computer crashed in February 2023 and could not repaired and that he has been unable to recover some files related to these actions.

[10] WCI’s motion was originally scheduled to proceed on October 3, 2022, however, it was adjourned to July 10, 2023. The parties first appeared before me on Mr. Martone’s dismissal motion on May 11, 2023. LawPro counsel had been retained the day before, therefore, I adjourned the motion to a telephone case conference before me to provide time for further discussions about both motions. On July 10, 2024, Associate Justice Frank adjourned WCI’s motion to the telephone case conference for Mr. Martone’s motion which had been scheduled before me in the interim for August 18, 2023. Counsel were continuing settlement discussions and on August 18 I adjourned the motions to another case conference with me on September 27, 2023. As the parties were unable to resolve the motions, I scheduled a four-hour hearing for May 2, 2024 and ordered a timetable for the exchange of materials.

III. The Law and Analysis

[11] For the reasons set out below, I have concluded that it is appropriate in the circumstances to dismiss the actions. The primary deficiency in the Plaintiff’s submissions is that there is no evidence from the Plaintiff herself. The entirety of her evidence and explanations are from Mr. Druxerman and he has provided no explanation for the Plaintiff’s failure to take any steps to comply with the Order. There is also no evidence with respect to the Plaintiff’s intention to move these actions forward or a proposed timetable to do so.

[12] When questioned about the Plaintiff’s involvement in these motions and failure to file an affidavit, counsel could only advise that she had spoken with the Plaintiff, she is aware of the motions and understands the potential outcomes. Mr. Druxerman’s affidavit does not explain the post-Order period at all and does not adequately explain the pre-Order period. As set out below, the lack of evidence or explanation from the Plaintiff, even to supplement Mr. Druxerman’s evidence, is a recurring theme under each of Rules 60.12, 24.01 and 48.14.

[13] Rule 60.12 of the Rules of Civil Procedure states as follows:

“Where a party fails to comply with an interlocutory order, the court may, in addition to any other sanction provided by these rules,

(a) stay the party’s proceeding;

(b) dismiss the party’s proceeding or strike out the party’s defence; or

(c) make such other order as is just.”

[14] Gorman J. stated the following in Kohlsmith v. Sterling Mutuals Ltd., 2014 ONSC 4696:

“48 It may seem trite, but court orders are made for a purpose and are meant to be complied with. The purpose of the civil justice system is to resolve disputes fairly, on their merits and in a timely manner, As the court stated in 1196158 Ontario Inc. v. 6274013 Canada Ltd., 2012 ONCA 544, 2012 CarswellOnt 10154 (Ont. C.A.) at para. 19:

Time lines prescribed by the Rules of Civil Procedure or imposed by judicial orders should be complied with. 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 attitude for unexpected and unusual contingencies that make it difficult or impossible for a party to comply.”

[15] In Thrive Capital Management Ltd. v. Nobel 1324 Queen Inc., 2021 ONSC 482, Koehnen J., citing the Court of Appeal’s decision in Falcon Lumber Limited v. 2480375 Ontario Inc., 2020 ONCA 310, summarized the applicable factors when considering potential remedies under Rule 60.12:

(i)The remedy is not restricted to "last resort" situations; (ii)Is the failure deliberate? (iii)Is the failure clear and unequivocal? (iv)Does the defaulting party have a reasonable explanation for its failure to comply? (v)Is the substance of the default material? (vi)Does the default remain outstanding? (vii)Does the default affect the ability to do justice in the particular case? (viii)The merits of the claim or defence (which may play only a limited role) (ix)The extent to which the defaulting party has increased the non-defaulting party's costs; and, (x)The extent to which the default has delayed an adjudication of the case on its merits.( Thrive Capital at para. 66).

[16] In 620639 Ontario Inc. (c.o.b. Herman’s Building Centres) v. Belaoussoff, 2021 ONSC 413, K.C. Trainquilli J. summarized the factors from Falcon Lumber as follows:

“ The Court of Appeal recently outlined number of principles the court should consider when determining whether to strike a party's statement of defence for non-compliance with its disclosure obligations which the court will consider in the circumstances of this proceeding: (a) reasonable opportunity to cure non-compliance; (b) consideration of the "common sense" factors; (c) the merits of the claim or defence; and (d) is striking the defence is a proportional remedy ” ( Belaoussoff at para. 30 ).

[17] The “common sense” factors include: i.) whether the party’s failure is deliberate or inadvertent; ii.) whether the party’s failure is clear and unequivocal; iii.) whether the defaulting party can provide a reasonable explanation for its default, coupled with a credible commitment to cure this default quickly; iv.) whether the substance of the default is material or minimal; v.) the extent to which the party remains in default at the time of the request to strike out its pleading; and vi.) the impact of the default on the ability of the court to do justice in the particular case ( Belaoussoff at paras 34-51 ).

[18] More recently in Daci v. 1062204 Ontario Inc. o/a Auto Show Place, 2022 ONSC 448, cited by the Plaintiff, Associate Justice Frank held that a party seeking to belatedly comply with an order must establish an acceptable explanation for the delay and that the opposing parties will not suffer non-compensable prejudice ( Daci at para. 37 ).

[19] In my view, the weight of the relevant factors and circumstances lead to the conclusion that the actions should be dismissed under Rule 60.12. The Plaintiff’s failure to comply with the Order is complete and unequivocal with no explanation provided for her failure to take any steps to comply with the Order. The Plaintiff’s non-compliance had been ongoing for 7 and 13 months by the time the motions were brought and she remains in default almost 3 years after the Order. This is more than a reasonable amount of time for the Plaintiff to have cured the non-compliance particularly where the Order was granted as an indulgence in lieu of dismissals given previous delay. There is also no commitment or proposal to cure the default at all, let alone quickly. The Plaintiff’s non-compliance has delayed an adjudication on the merits for almost 3 years which has stalled the litigation and is affecting the court’s ability to do justice. Further, the outstanding steps in the Order are numerous and material including 36 unanswered undertakings, an unpaid costs award, mediation and a missed set down date. As set out below in my consideration of Rule 24.01(1), I have also concluded that the Defendants would suffer prejudice if the actions were allowed to continue.

[20] I reject the Plaintiff’s submission that there has been an acceptable explanation for the Plaintiff’s default. While some explanation has been offered with respect to the period preceding the Order, no explanation has been provided for the Plaintiff’s failure to take any steps to comply with the Order. Mr. Druxerman states that the primary cause of the delay was his health and work issues, the pandemic and Mr. Rafiuddin’s interference. However, there is no evidence or explanation that any of these factors affected the Plaintiff’s ability to comply with the Order including Mr. Rafiuddin’s interference in the delivery of the Notices or forwarding her mail. There is some merit to the Plaintiff’s submission that the Defendants Nissan and Mr. Rafiuddin are also in default of the Order because they have not been examined for discovery, particularly Mr. Rafiuddin who failed to attend on 3 occasions. However, the Plaintiff has taken no steps to schedule the examinations after the Order was granted including serving Notices of Examination. In any event this is only one of numerous uncompleted steps. The fact remains that the Plaintiff did not take any steps after July 7, 2021 to comply with the Order when she was self-represented or after Mr. Druxerman began to represent her again, no explanation has been offered and there are no assurances from the Plaintiff that she still intends to pursue this action nor has she filed a timetable or a proposal to do so.

[21] Even if I had concluded that the actions should not be dismissed under Rule 60.12, I would have dismissed them for delay under Rule 24.01(1). Rule 24.01(1) provides that a defendant who is not in default under the Rules or an order of the court may move to have an action dismissed for delay where, among other grounds, the plaintiff has failed to set the action down for trial within six months after the close of pleadings.

[22] Dismissing an action for delay is a severe remedy which denies a plaintiff the adjudication of their claim on the merits, however, sometimes it is the only order that can adequately protect the integrity of the civil justice process and prevent an adjudication on the merits that is unfair to the defendant (Langenecker v. Sauve, 2011 ONCA 803 at para. 3). Therefore, a dismissal motion requires a careful balancing between efficiency and deciding disputes on their merits:

“ ....On the one hand, the Rules of Civil Procedure need to be enforced in a way that ensures timely and efficient justice, in the interests of plaintiffs, defendants, and society in general. On the other hand, society in general, and the parties, have an interest in the resolution of disputes on their merits and in the availability of flexibility to avoid potentially draconian results, by providing the opportunity for parties to offer a reasonable explanation for delay when it takes them beyond established timelines.” (Kara v. Arnold, 2014 ONCA 871 at para. 9).

[23] In this regard, the Court of Appeal has stated the preference that matters be resolved on their merits:

“Expeditious justice must be balanced with the public interest in having disputes determined on their merits. Where, despite the delay, the defendant would not be unfairly prejudiced should the matter proceed for resolution on the merits, according the plaintiff an indulgence is generally favoured.” (D’Alimentation Denis Theriault Ltee v. Giant Tiger Stores Ltd., 2007 ONCA 695 at para. 34)

[24] Master Graham (as he then was) summarized the relevant considerations on a Rule 24.01 motion in Szpakowsky v. Tenenbaum, 2017 ONSC 18:

(1) To dismiss an action for delay, the court must be satisfied that the plaintiff's default has been intentional and contumelious, or that there has been inordinate and inexcusable delay for which the plaintiff or his lawyers are responsible resulting in a substantial risk that a fair trial will not be possible. (Armstrong v. McCall, [2006] O.J. No. 2055 (C.A.), Langenecker v. Sauve, 2011 ONCA 803, [2011] O.J. No. 5777 (C.A.), Francis v. Peel (Regional Municipality) Police, [2015] O.J. No. 5001 (SCJ))

(2) A dismissal on the basis of intentional and contumelious delay would be warranted in cases "in which the delay is caused by the intentional conduct of the plaintiff or his counsel that demonstrates a disdain or disrespect for the court process." ( Langenecker, supra, para. 6 )

(3) The plaintiff is responsible for moving the action along. (Wallace v. Crate's Marine Sales Ltd., 2014 ONCA 671, [2014] O.J. No. 4606 (C.A.) at para. 18 )

(4) Any delay in the prosecution of an action requires an explanation. The onus rests with the plaintiff to show that the delay was not intentional. In the absence of an explanation from the plaintiff for the delay, it is to be presumed that the delay was intentional. (Berg v. Robbins, [2009] O.J. No. 6169 (Div. Ct.) at para. 13 )

The onus is on the plaintiff to rebut the presumption of prejudice arising from the unexplained delay by showing that documents have been preserved, and that the issues in dispute do not require the recollection of witnesses, or that necessary witnesses are available with detailed recollection of events. ( Berg, para. 14)

(5) The requirement that the delay be "inexcusable" requires a determination of the reasons for the delay and an assessment of whether those reasons afford an adequate explanation for the delay. . . [E]xplanations that are "reasonable and cogent" or "sensible and persuasive" will excuse the delay at least to the extent that an order dismissing the action would be inappropriate.

In assessing the explanations offered, the court will consider not only the credibility of those explanations and the explanations offered for individual parts of the delay, but also the overall delay and the effect of the explanations considered as a whole. ( Langenecker, supra at paragraphs 9 and 10 )

(6) An inordinate delay after the cause of action arose or after the passage of a limitation period gives rise to a presumption of prejudice in which case the defendant need not lead actual evidence of prejudice and the action will be dismissed for delay unless the plaintiff rebuts the presumption. The plaintiff's onus is to persuade the court with convincing evidence that there is no substantial risk that a fair trial is not possible. ( Armstrong, supra and Woodheath Developments Ltd. v. Goldman)

(7) Courts may dismiss actions for delay even when the relevant rules do not mandate it. A court has inherent jurisdiction to control its own process, which includes the discretionary power to dismiss an action for delay. The power of a superior court to dismiss an action for delay is not limited to that conferred by any specific Rules of Civil Procedure, but also flows from the inherent power of the court to prevent an abuse of its own process. (Marché D'Alimentation Denis Thériault v. Giant Tiger Stores Ltd., 2007 ONCA 695 at paragraph 24, Wallace, supra at para. 21 )

As stated in Wallace at para. 22 "There comes a time, in short, when enough is enough, and the civil justice system will no longer tolerate inordinate and inexplicable delay. A court may then eject the action as an exercise of its inherent jurisdiction, whether or not the relevant rules expressly mandate it." ( Szpakowsky at para. 19 )

[25] I cannot conclude that all of the delay was intentional. However, I am satisfied that the delay has been inordinate and inexcusable for which the Plaintiff is responsible raising a substantial risk that a fair trial will not be possible (Zaatar v. Aviva, 2018 ONSC 2871 at para. 19; Ticchiarelli v. Ticchiarelli, 2017 ONCA 1 at para. 15; Langenecker at para. 7).

[26] The inordinance of the delay is measured by reference to the length of time from the commencement of the proceeding to the motion to dismiss (Langenecker at para. 8; Ticchiarelli at para. 15). In my view, the Plaintiff’s delay in moving this action forward has been inordinate. Taking into account the 6-month suspension of time periods during the pandemic, over 5 years passed from the issuance of the Statement of Claim in the First Action to the commencement of WCI’s dismissal motion, and almost 5 years for the Second Action. More specifically, after February 2019, the Plaintiff has taken no steps to move the litigation forward, a period of 36 months in the First Action and 42 months in the Second Action (30 and 36 months with the 6-month tolling period deducted). In this regard, the Plaintiff has unilaterally held the actions in abeyance during this time, a period which has continued past the commencement of these motions for an additional two years such that it is now more than 7 years since the actions were started, 10 years since the slip and fall and over 8 years since the motor vehicle accident. The Plaintiff is not permitted to hold the actions in abeyance without the other parties’ knowledge and consent or by court order (Koepcke v. Webster, 2012 ONSC 357 at paras. 28-30).

[27] Determining whether the delay is inexcusable requires an examination of the reasons for it and whether an adequate explanation which is "reasonable and cogent" or "sensible and persuasive" has been provided (Langenecker at paras. 9-10; Ticchiarelli at para. 16). In determining whether the delay has been unreasonable, the court should consider the issues raised by the case, the complexity of the issues, the explanation for the delay and all relevant surrounding circumstances (Alexander v. Rosedale United Church, 2010 ONSC 4224 at para. 57). The court will consider not only the explanations offered for individual parts of the delay but also the overall delay and the effect of the explanations considered as a whole to determine if the delay can be excused, at least to the extent that an order dismissing the action would be inappropriate (Langenecker at paras. 9-10; Ticchiarelli at para. 16).

[28] I am not satisfied that an adequate explanation has been provided for the delay. As set out above, there is no explanation from the Plaintiff herself for any of the delay. There is also no explanation for the complete inaction during the period after the Order. The post-Order period is particularly important because the Plaintiff was granted an indulgence to move the actions forward in the face of dismissals. The fact that there is no explanation for the complete absence of activity after such an indulgence was granted is unacceptable. With respect to the delay prior to the Order, the only explanation is from Mr. Druxerman who attributes the delay after January 2019 to his personal health and work issues, the pandemic and Mr. Rafiuddin’s conduct. I accept that Mr. Druxerman’s personal issues had some impact on the progression of the action. I also have considered the general principle that the desire to try actions on their merits is more pronounced where delay is due to counsel’s error and the law will not ordinarily allow an innocent client to suffer the irrevocable loss of the right to proceed by reason of the inadvertence of his or her solicitor (Giant Tiger at paras. 28-33; H.B. Fuller Company et al. v. Rogers (Rogers Law Office), 2015 ONCA 173 at para. 27). However, not all of the delay is adequately explained, some is merely described or listed, such as the delay after June 2020 or the cessation of efforts on the undertakings. I also cannot conclude that all of the delay attributable to Mr. Druxerman’s circumstances was inadvertent.

[29] While I have concerns about Mr. Rafiuddin’s conduct and alleged interference, there is insufficient evidence or explanation to conclude that this is a material cause of the delay or otherwise connecting it to the Plaintiff’s delay. In particular, there is no evidence or suggestion that Mr. Rafiuddin interfered with the Plaintiff’s or Mr. Druxerman’s abilities to answer her undertakings and obtain her medical records. After January 2019, other than responding to the Defendants’ correspondence, delivering the Notice and dealing with the Defendants’ motions (even then the Plaintiff filed no responding materials for the June 2021 motion), the Plaintiff effectively held the actions in abeyance without continuing to answer her outstanding undertakings, take any other steps to move the action forward or even to communicate with the Defendants about what was happening with the litigation. No explanation has been provided as to why the Plaintiff could not have taken some steps or communicated with the Defendants, even while self-represented, to keep them updated regarding the litigation (Business Development Bank of Canada v. I Inc., 2013 ONSC 1749 at paras. 17 and 18).

[30] Inordinate delay generates a presumption of prejudice which is inherent in long delays as memories fade, witnesses become unavailable and documents are lost such that the longer the delay the stronger the inference of prejudice (Langenecker at para. 11; Ticchiarelli v. Ticchiarelli, 2017 ONCA 1 at para. 28). The plaintiff bears the onus of rebutting the presumption of prejudice (Cardillo v. Willowdale Int’l Contracting Ltd., 2020 ONSC 2193 at para. 38). It is also open to a defendant to lead evidence of actual prejudice which may also form the basis for dismissal (Ticchiarelli at para. 29; Cardillo at para. 38). Actual prejudice is any prejudice which would impair the Defendants’ ability to defend the action resulting from the Plaintiffs’ delay, not due to the sheer passage of time (Carioca’s at para. 57; H.B. Fuller Company et al. v. Rogers (Rogers Law Office), 2015 ONCA 173 at para. 37). Determining whether there is a substantial risk that a fair trial is no longer possible considers the potential prejudice caused by the delay to the defendant’s ability to put its case forward for adjudication on the merits (Langenecker at para. 11).

[31] The unavailability or death of key witnesses, the loss of material documents and the loss of opportunities to conduct a proper investigation may constitute actual prejudice (1196158 Ontario Inc. v. 6274013 Canada Ltd., 2012 ONCA 544, at paras. 31, 41-43). Prejudice is inherent in long delays as memories fade and fail, witnesses become unavailable, and documents and other potential exhibits are lost giving rise to a presumption of prejudice due to concerns of trial unfairness (Langenecker at para. 11; DK Manufacturing Group Ltd. v. MDF Mechanical Limited, 2019 ONSC 6853 at para. 28; 1196158 Ontario Inc. at para. 42).

[32] Given the overall delay and specific periods of inactivity, I conclude that a presumption of prejudice arises and that there is actual prejudice (Langenecker at para. 11). I further conclude that the Plaintiff has not rebutted the presumption of prejudice. In particular, there are legitimate concerns regarding the availability of the Plaintiff’s medical records, some of which date back to 2011 for the First Action. Based on the minimum record retention requirements, some medical records may no longer be available due to the delay in these actions. This may not have been the case had the Plaintiff not ceased efforts to answer her undertakings and obtain the records over 5 years ago. The Plaintiff has not provided any evidence regarding what documents have been preserved and what remain available or any steps or inquiries that have been taken to do so (Unlimited Motors Inc. v. Automobili Lamborghini Spa, 2019 ONSC 142 at paras. 10-12; DK Manufacturing at para. 43-44). The importance of her medical records for both actions is underscored due to the Plaintiff’s significant pre-accident medical history, her admission that she has difficulty recalling details about her medical history and a third accident which was revealed during the lead up to these motions. I do not accept the Plaintiff’s submission that the Defendants should have made their own inquiries or brought motions for the production of non-party records under Rule 30.10 to obtain the Plaintiff’s medical records while the Plaintiff was doing nothing to advance the litigation. There is no evidence that the Plaintiff communicated to the Defendants that she was unable to obtain certain records and that the Defendants should make the appropriate inquiries with non-parties and bring Rule 30.10 motions if necessary. Absent any such communication and since the Order required the Plaintiff to answer her outstanding undertakings, the Defendants were entitled to rely on the fact that the Plaintiff was making inquiries to obtain the records.

[33] With respect to witnesses, the Plaintiff submits that she advised WCI in February 2015 that she could not locate any witnesses with respect to the First Action. However, there is no evidence before me with respect to the status and availability of witnesses for the Second Action.

[34] The Plaintiff cites the decision of Master Pope (as she then was) in Hubergroup Canada Ltd. v. 2049669 Ontario Inc., 2017 ONSC 3784. In that case, decided under Rule 48.14(7), the action had been ongoing for approximately 8 years with periods of inactivity similar to the present case. In my view, Hubergroup is distinguishable. Most prominently, the plaintiff in that case filed an affidavit from a corporate representative which adequately explained all of the delay. Here, there is no evidence from the Plaintiff and there is delay which remains unexplained. The court in Hubergroup also found that there was no non-compensable prejudice.

[35] The Plaintiff’s right to have to her claims tried on the merits must be balanced with the Defendant’s right to not have a significant claim looming for an indefinite period of time. The Plaintiff is advancing significant claims of $500,000 in both actions which have not advanced since January 2019. Given how long these actions have lingered, Sharpe J.A.’s comments in 1196158 Ontario Inc. are instructive:

“ Another harm that flows from delay, properly relied on by the status hearing judge, is that it leaves the litigant with the claim hanging over its head in a kind of perpetual limbo. Fairness requires allowing parties to plan their lives on the assumption that, barring exceptional or unusual circumstances, litigation timelines will be enforced. "Litigants are entitled to have their disputes resolved quickly so that they can get on with their lives" and "[d]elay multiplies costs and breeds frustration and unfairness": Marché, at para. 25; see, also, Hamilton, at para. 21. ” (1196158 Ontario Inc. at para. 44).

[36] As the Plaintiff did not set these actions down for trial by August 30, 2022 as required by the Order, the Defendants also made submissions under Rule 48.14. There is significant overlap with the factors and considerations in Rules 24.01(1) and Rule 48.14. Under Rule 48.14 a party seeking an extension of the deadline to set an action down for trial must demonstrate that there is an acceptable explanation for the delay and that allowing the action to proceed would not cause the defendants to suffer non-compensable prejudice (Kara v. Arnold, 2014 ONCA 871 at para. 80). Based on my analysis above, I conclude that the test under Rule 48.14 is also met.

[37] Based on all of the applicable factors and circumstances, I am satisfied that a proper balancing of the parties’ rights favours dismissal of the actions. The Defendants are entitled to rely on the reasonable expectation that the Plaintiff would comply with the Order, absent any unexpected contingencies which do not exist here, and that the Plaintiff would fulfil her broader obligation to move the actions forward in a timely manner given the opportunity to do so. In the absence of an adequate explanation for the delay and given the prejudice which would result, justice requires that the actions be dismissed.

IV. Disposition and Costs

[38] Order to go dismissing the actions.

[39] If the parties are unable to agree on the costs of this motion, they may file written costs submissions with me (not to exceed 4 pages, excluding Costs Outlines) on a timetable to be agreed upon by counsel.

Released: August 12, 2024

Associate Justice McGraw