DATE: 20030711
DOCKET: C39150
COURT OF APPEAL FOR ONTARIO
RE: KAY STARR - (Appellant/Plaintiff) – and- CANADIAN MEDICAL LABORATORIES LIMITED CYBERMEDIX HEALTH SERVICES LIMITED and DR. JOHN DOUGLAS MULL (Respondents/Defendants)
BEFORE: CATZMAN, FELDMAN AND GILLESE JJ.A.
COUNSEL: Janet E. Gross and Michael G. Emery for the appellant
Waldemar Zimmerman for the respondents
HEARD: July 9, 2003
RELEASED ORALLY: July 9, 2003
On appeal from the decision of Justice Peter G. Jarvis of the Superior Court of Justice dated October 28, 2002.
E N D O R S E M E N T
[1] The plaintiff appeals from the order of Jarvis J. dated October 28, 2002 in which he dismissed her action for delay. In our view, the motions judge erred in principle when finding that the delay was inordinate and inexcusable.
[2] In relation to whether the delay was inordinate, we note that after the limitation period expired in October 1997, the plaintiff made efforts to move the matter along. Those efforts included repeated attempts to schedule examinations for discovery. The failure to schedule the discoveries was at least partly due to the defendants.
[1] Was the delay inexcusable? The plaintiff changed solicitors a number of times. She was engaged in two other lawsuits against the same defendants who were represented by the same counsel. She did take fresh steps between 1997 and 2002. While the plaintiff’s attention was focussed on the other two lawsuits, there is no evidence to show that she consciously decided not to pursue this action. As this court stated in Halton Community Credit Union Ltd. v. ICL Computers Ltd. (1985), 1 C.P.C. (2d) 24 at 27:
… it is a principle of very long standing that the client is not to be placed irrevocably in jeopardy by reason of the neglect or inattention of his solicitor …
[2] In any event, if the presumption of prejudice arose, it has been rebutted for the following reasons:
The witness who died did so within the limitation period;
The evidence suggesting that witnesses’ memories have faded is extremely tenuous and it does not appear that the witnesses in question are material; and
Given the nature of the incidents involved and the fact that witness statements were taken in 1992 and again in 2002, it appears that memories can be refreshed.
[3] For these reasons, the appeal is allowed, the order of Jarvis J. is set aside and, in its place, an order shall go dismissing the defendants’ motion to dismiss for delay.
[4] Costs of the appeal are to the appellant fixed in the amount of $10,000. Each side shall bear its own costs of the motion.
“M.A. Catzman J.A.”
“K.N. Feldman J.A.”
“E.E. Gillese J.A.”