Aguas v. The Estate of Rivard, deceased, et al. [Indexed as: Aguas v. Rivard Estate]

107 O.R. (3d) 142

2011 ONCA 494

Court of Appeal for Ontario,

Rosenberg, Feldman and Juriansz JJ.A.

July 6, 2011

Civil procedure -- Dismissal for delay -- Setting aside -- Status notice and registrar's order dismissing action sent to plaintiff's former counsel and not to her current counsel despite fact that motion of change of solicitor was properly filed with court office -- Plaintiff moving promptly to set aside dismissal -- Motion dismissed -- Motion judge erring in finding that there was no explanation for delay, in finding that prejudice to defendants favoured dismissing motion and in applying principle of finality -- Plaintiff's appeal allowed.

The plaintiff commenced an action in 2003 arising out of a 2001 motor vehicle accident. She was involved in a second motor vehicle accident in 2005, and commenced a second action arising out of that accident. In May 2007, a status notice in the first action was sent to the plaintiff's former counsel, and not to her current counsel, despite the fact that a motion of change of solicitor was properly filed with the court office. An order dismissing the action was sent to the plaintiff's former counsel and the defendants' counsel. Counsel for one of the defendants wrote to counsel for the plaintiff and the other defendants in May 2008 noting that the first action was dismissed and asking counsel to confirm the status of the action. That letter apparently did not come to the attention of the plaintiff's counsel until September 2009. Counsel moved promptly to set aside the dismissal. The motion was dismissed. The plaintiff appealed.

Held, the appeal should be allowed.

Per Rosenberg J.A. (Feldman J.A. concurring): The motion judge erred in finding that there was no explanation for the delay. Steps were being taken, and the pace of the litigation was complicated and directly affected by the second action. The motion judge also placed unreasonable emphasis on prejudice to the defendants. Counsel for the defendants continued to attend the discoveries in the second action and did not indicate that anything was amiss. Counsel's lack of display of any sense of urgency undercut the claim of actual prejudice. Finally, the motion judge erred in holding that the defendants were entitled to rely on the finality of the registrar's order. The defendants did not proceed as if they were acting on the principle of finality; they continued to participate in the litigation, most obviously by attending the discoveries in the second action.

Per Juriansz J.A. (dissenting): The motion judge identified the proper test, and each of her findings was supported by the record. Interfering with her considered exercise of discretion will have the effect of rendering the jurisprudence of the Court of Appeal so uncertain that trial judges will have difficulty understanding and applying it.

APPEAL from the order of Seppi J. of the Superior Court of Justice dated July 5, 2010 dismissing the motion to set aside an administrative dismissal order.

Cases referred to

Reid v. Dow Corning Corp., [2002] O.J. No. 3414, 48 C.P.C. (5th) 93 (Div. Ct.), revg [2001] O.J. No. 2365, [2001] O.T.C. 459, 11 C.P.C. (5th) 80, 105 A.C.W.S. (3d) 649 (S.C.J.), apld Marché D'Alimentation Denis Thériault Ltée v. Giant Tiger Stores Ltd. (2007), 87 O.R. (3d) 660, [2007] O.J. No. 3872, 2007 ONCA 695, 47 C.P.C. (6th) 233, 286 D.L.R. (4th) 487, 247 O.A.C. 22; Wellwood v. Ontario (Provincial Police) (2010), 102 O.R. (3d) 555, [2010] O.J. No. 2225, 2010 ONCA 386, 262 O.A.C. 349, 90 C.P.C. (6th) 101, distd Other cases referred to Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307, [2000] S.C.J. No. 43, 2000 SCC 44, 190 D.L.R. (4th) 513, 260 N.R. 1, [2000] 10 W.W.R. 567, J.E. 2000-1872, 141 B.C.A.C. 161, 81 B.C.L.R. (3d) 1, 23 Admin. L.R. (3d) 175, 3 C.C.E.L. (3d) 165, [2000] CLLC Â230-040, 77 C.R.R. (2d) 189, 99 A.C.W.S. (3d) 1024; Finlay v. Van Paassen (2010), 101 O.R. (3d) 390, [2010] O.J. No. 1097, 2010 ONCA 204, 266 O.A.C. 239, 318 D.L.R. (4th) 686, 188 A.C.W.S. (3d) 675; Machacek v. Ontario Cycling Assn., [2011] O.J. No. 2379, 2011 ONCA 410; Scaini v. Prochnicki (2007), 85 O.R. (3d) 179, [2007] O.J. No. 299, 2007 ONCA 63, 219 O.A.C. 317, 39 C.P.C. (6th) 1, 154 A.C.W.S. (3d) 1075

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 48, 48.14

Authorities referred to

Watson, Garry D., and Lynne Jeffrey, Holmested and Watson: Ontario Civil Procedure, vol. 4 Supplement (Toronto: Carswell, 1993)

William G. Scott and Doug Wright, for appellant. David Bierstone, for respondents the estate of Curtis Rivard, deceased, and Premier Express Lines. No one appearing for respondent Associates Leasing. [See Note * below]

[1] ROSENBERG J.A. (FELDMAN J.A. concurring): -- The appellant appeals from the order of Seppi J. dismissing her motion to set aside the registrar's administrative dismissal order. In lengthy and comprehensive reasons, the motion judge, applying the test from Reid v. Dow Corning Corp., [2001] O.J. No. 2365, 11 C.P.C. (5th) 80 (S.C.J.), revd on other grounds [2002] O.J. No. 3414, 48 C.P.C. (5th) 93 (Div. Ct.), as explained in cases from this court such as Wellwood v. Ontario (Provincial Police) (2010), 2010 ONCA 386, 102 O.R. (3d) 555, [2010] O.J. No. 2225 (C.A.), Scaini v. Prochnicki (2007), 2007 ONCA 63, 85 O.R. (3d) 179, [2007] O.J. No. 299 (C.A.) and Marché D'Alimentation Denis Thériault Ltée v. Giant Tiger Stores Ltd. (2007), 2007 ONCA 695, 87 O.R. (3d) 660, [2007] O.J. No. 3872 (C.A.) held that the appellant had not shown that the dismissal should be set aside.

[2] In my view, while the motion judge identified the proper test and purported to apply the contextual analysis required by the cases from this court, she made palpable and overriding errors in three respects: (1) finding that there was no explanation for the litigation delay; (2) finding that prejudice to the respondents favoured dismissing the motion; and (3) applying the principle of finality.

The Chronology

[3] The action that was administratively dismissed arises out of a motor vehicle accident on October 5, 2001. The appellant alleges that a tractor-trailer driven by the late Curtis Rivard swerved into the appellant's lane on Highway 401. Mr. Rivard passed away sometime after the accident. The respondents, the estate of Curtis Rivard, deceased, and Premier Express Lines, however, have an independent witness who has told the police and the respondents' investigator that it was the appellant who caused the accident by swerving into the tractor-trailer.

[4] The appellant was involved in a second motor vehicle accident on March 27, 2005. She has commenced a separate action against the driver and owner of the vehicle involved in that accident.

[5] The motion before the motion judge arose out of the administrative dismissal of the action by the registrar on August 15, 2007 because the appellant neither set the matter down for trial within two years of filing of the statement of defence nor obtained an order from a judge presiding at a status hearing in accordance with rule 48.14 [of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194]. The status notice and the order dismissing the action were sent to the appellant's former counsel by the court office, but not to current counsel, even though the motion of change of solicitor was properly filed with the court office before the status notice was sent out.

[6] As is invariably the case in this type of appeal, the chronology is important:

October 5, 2001 Accident #1.

October 6, 2003 Statement of claim issued for accident #1.

June 16, 2004 Order to continue, following death of Mr. Rivard.

March 27, 2005 Accident #2.

August 26, 2005 Discovery of appellant in action #1 by counsel for respondents.

May 4, 2006 Notice of change of solicitor to appellant's present solicitors served and filed.

March 27, 2007 Statement of claim for accident #2 issued.

April 13, 2007 Continued discovery of appellant in action #1.

May 1, 2007 Status notice sent by the court office to appellant's former counsel and respondents' counsel.

August 15, 2007 Order dismissing action sent to appellant's former counsel and respondents' counsel.

May 5, 2008 Counsel for defendant Associates Leasing writes to counsel for appellant and respondents as follows:

"I have yet to receive a response to my letters of April 13 and October 11, 2007 and May 5, 2008.

We have conducted a search of the court files and have determined that [action #1] . . . was dismissed by order on August 15, 2007.

Can counsel please confirm the status of these actions."

June 25, 2008 Discovery of appellant in action #2 by counsel for defecdant in that action; counsel for respondents attends on "watching brief".

April 14, 2009 Continued discovery of appellant in action #2 by counsel for defendant in that action; counsel for respondents attends on "watching brief".

September 2009 Ms. Ramsden takes over carriage of the action and discovers the May 2008 letter from counsel for Associates Leasing and learns for the first time that action had been dismissed by the registrar.

October 5, 2009 Continued discovery of appellant in action #2 be counsel for defendant in that action; counsel for respondents attends on "watching brief".

October 7, 2009 Notice of motion to set aside dismissal.

[7] A key document in this case is the letter from counsel for Associates Leasing to counsel for the appellant and the respondents. As indicated above, Ms. Ramsden discovered the letter when she took over responsibility for the file. The lawyer in the firm who formerly had carriage of the action, Ms. Sokoloff, states that she never saw the May 2008 letter until it was drawn to her attention by Ms. Ramsden. Ms. Sokoloff has checked with her two law clerks and they both stated that they had no recollection of the letter. Ms. Ramsden was not cross- examined on her affidavit.

Reasons of the Motion Judge

[8] The motion judge made the following findings in the course of applying the Reid test. The plaintiff did not give "any reason whatsoever for the slow progress of the matter up to the date of the status hearing notice". And, even though the appellant's counsel did not receive the status notice and the order of dismissal, she should have known that under the rules, failure to set down the action within the time provided in rule 48.14 would lead to dismissal of the action.

[9] However, counsel's failure to respond immediately to the status hearing notice and the order dismissing the action were inadvertent and the result of the error by the court in sending the notice and order not to her but to the former solicitors. Nevertheless, the failure to bring the motion promptly after receipt of the May 5, 2008 letter was not adequately explained:

The plaintiff has not explained this unusual circumstance of a crucial letter in the client's file not being read or acted upon by counsel. Counsel merely deposes it was through "inadvertence" the motion to set aside the dismissal order was not brought until October, 2009, when the letter was discovered in the file after it was reassigned. . . . The letter was in the file. It must have been received. Why was it ignored?

[10] While the appellant could not be held responsible for the eight-month delay from August 2007 to May 2008 because the order of dismissal was sent to the wrong solicitor, the 17- month delay thereafter was not adequately explained. "Absent a full explanation the conclusion is that the plaintiff did not promptly move to set aside the order after receipt of the letter informing counsel of the dismissal order." The motion judge concluded that the failure to respond to this letter appeared "to have been due to a systemic problem of file management or other unknown and [un]explained cause". The information did not support a finding of inadvertence.

[11] As to prejudice, trial fairness would be impacted should the memory of the respondents' only witness to the accident be impaired. Prejudice could be inferred in this type of case. There was also a presumption of prejudice because of the passage of time since the limitation period expired.

[12] Weighing all four of the Reid factors, as explained in Marché, supported dismissal of the motion. In weighing these factors, the respondents were entitled to rely on the finality of the registrar's order.

Analysis

[13] The motion judge relied on this court's decisions in Marché and Wellwood. Those decisions make the important points that the rules, including rule 48.14, are intended to promote the timely resolution of disputes and finality. Those principles are given effect in the context of a motion to set aside an administrative dismissal under rule 48.14 by reference to the Reid factors. At para. 32 of Marché, Sharpe J.A. also pointed to the risk that countenancing negligence and incompetence of solicitors will undermine public confidence in the administration of justice. Sharpe J.A. also emphasized the importance of finality in that case, at para. 38:

When an action has been disposed of in favour of a party, that party's entitlement to rely on the finality principle grows stronger as the years pass. Even when the order dismissing the action was made for delay or default and not on the merits, and even when the party relying on the order could still defend itself despite the delay, it seems to me that at some point the interest in finality must trump the opposite party's plea for an indulgence. This is especially true where, as in the present case, the opposite party appears to have another remedy available.

[14] In Wellwood, this court also emphasized the importance of finality. In that case, Cronk J.A. also wrote at length about the prejudice factor and especially about presumed prejudiced where the administrative dismissal is made after expiry of the limitation period.

[15] However, Marché and Wellwood have important distinguishing features. In Marché, an important factor in finding that the explanation for the delay was not satisfactory and that the deadlines were not missed due to inadvertence was that the solicitor effectively abandoned the file (para. 27). And in Wellwood, Cronk J.A. noted, at para. 74, that on the findings of the Master in that case, the delay occasioned by the plaintiff was intentional. She found as follows, at para. 79:

Further, on the facts of this case, it is my view that invocation of the finality principle, in the context of full consideration of the other factors relevant to the decision whether to set aside the dismissal orders, was dispositive of the central issue before the master. In particular, I note that the respondent failed to comply with the mandatory requirements of rule 37.14(1); that he failed to provide a satisfactory explanation for his delay in moving to set aside the dismissal orders; and that even when he determined to seek such relief, his motion for relief was not brought promptly. In these circumstances, I conclude that this is the type of case described by Sharpe J.A. in Marché, in which finality must trump.

[16] In my view, the motion judge in this case erred in finding that there was no explanation for the litigation delay before the registrar's order and in holding that the respondents were entitled to rely upon the finality principle as explained in Marché and Wellwood. I will deal first with the question of explanation for the delay. This is not a case like Marché or Wellwood where there were findings that the solicitor had put the file in abeyance and intentionally and stubbornly refused to proceed with the action (Marché, at para. 26) or where the delay was intentional (Wellwood, at para. 74). This action was not proceeding with lightning speed but steps were being taken. Discoveries were held in August 2005 and April 2007 before the dismissal of the action. The pace of the litigation was also complicated and directly affected by the second accident. Obviously, the assessment of damages from the first accident would be impacted by the second accident. That this is the case is evident from the fact that counsel for the respondents attended the discoveries of the appellant in the second accident even though he was aware that the first action had been dismissed in August 2007. It was a palpable and overriding error to say that the appellant did not give "any reason whatsoever for the slow progress of the matter up to the date of the status hearing notice".

[17] The motion judge put a lot of emphasis on counsel's failure to respond to the May 2008 letter from a third party's lawyer advising that the action had been dismissed. The motion judge attributed this lapse to negligence in file management rather than mere inadvertence. This characterization of the delay favoured dismissal of the motion. That said, when the new lawyer saw the May 5, 2008 letter she moved almost immediately to set aside the administrative dismissal.

[18] The motion judge inferred prejudice from the lengthy passage of time, the nature of the action and the expiration of the limitation period. I accept those findings. That said, in my view, the motion judge placed unreasonable emphasis on prejudice. The respondents' counsel continued to attend the discoveries in the second action and raised not the slightest indication that something was amiss. It is difficult to see what prejudice the respondents suffered in those circumstances.

[19] I appreciate that the appellant, as plaintiff, bore responsibility for moving the action along, but respondents' counsel's lack of display of any sense of urgency undercuts the claim of actual prejudice. Counsel for the respondents must have realized that counsel for the appellant had made a mistake and was not aware that the action had been dismissed by the registrar; otherwise, why did appellant's counsel not query respondents' counsel's attendance at the discoveries and why did no one raise the issue of the need for a motion to set aside the administrative dismissal?

[20] Finally, in my view, the motion judge erred in holding that the respondents were entitled to rely on the finality of the registrar's order. The respondents did not proceed as if they were acting on the principle of finality; they continued to participate in the litigation, most obviously by attending the discoveries in the second accident.

[21] In my view, when the various factors are considered in context, the registrar's order should have been set aside. The most important context was that (1) the appellant continued to move the action along, participating in five examinations for discovery with respect to the two actions, before and after the first action was dismissed; (2) the registrar's notice and order dismissing the first action were not sent to the appellant's counsel by the court; and (3) respondents' counsel's actions do not support actual prejudice or reliance on finality.

Disposition

[22] Accordingly, I would allow the appeal and set aside the registrar's order dismissing the action as against the estate of Curtis Rivard and Premier Express Lines. As this is an indulgence to the appellant, I would award no costs of the motion. The appellant is entitled to costs of the appeal fixed at $5,000, inclusive of disbursements and HST.

[23] JURIANSZ J.A. (dissenting): -- Overview

[24] I have read the reasons of my colleague Rosenberg J.A. but do not agree with his analysis or the result he reaches. I would dismiss the appeal.

[25] The motion judge's decision on a motion to set aside a registrar's dismissal order involves an exercise of discretion: Wellwood v. Ontario (Provincial Police) (2010), 2010 ONCA 386, 102 O.R. (3d) 555, [2010] O.J. No. 2225 (C.A.), at para. 36. Since that discretion is exercised as part of the judge's duty to manage her own court's trial list, it attracts "significant deference" from this court: Finlay v. Van Paassen (2010), 2010 ONCA 204, 101 O.R. (3d) 390, [2010] O.J. No. 1097 (C.A.), at para. 6. This court reviews such a decision, not with the aim of replacing it with the decision it would have made itself, but with a view of determining whether the motion judge erred in arriving at her decision. The legal principles that apply are general but clear. Their application to a specific fact situation is necessarily qualitative and does not drive toward a single result that all judges would necessarily reach. The question on appeal is whether the result reached by the motion judge is reasonable.

[26] In this case, the motion judge identified the proper test and applied the contextual analysis required by Scaini v. Prochnicki (2007), 2007 ONCA 63, 85 O.R. (3d) 179, [2007] O.J. No. 299 (C.A.). Each of the findings she made was supported by the record. She carefully referenced decisions of this court for each step of her reasoning. I fear that interfering with her considered exercise of discretion will have the effect of rendering the jurisprudence of this court so uncertain that trial judges will have difficulty understanding and applying it. Uncertainty in the jurisprudence will have the result that a court of appeal decision will be required to determine the final status of a case administratively dismissed under rule 48.14 [of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194], which is intended to remove cases from the court's docket without any judicial involvement.

Analysis

[27] I respectfully disagree with the reasoning of my colleague in this case in several respects.

Burden of proof

[28] First, in my view, he fails at several points in his analysis to keep on the appellant the burden of satisfying the court that the dismissal order should be set aside. I will identify these points in the course of my reasons.

Fresh view of facts

[29] Second, in my view, he reweighs the evidence and takes a fresh view of the facts. My colleague infers that the respondents' counsel knew that appellant's counsel had made a mistake and acted to take advantage of it. He says that "[c] ounsel for the respondents must have realized that counsel for the appellant had made a mistake and was not aware that the action had been dismissed by the registrar".

[30] That counsel for the respondents realized counsel for the appellant had made a mistake is not a finding of fact made by the motion judge. Furthermore, in my view, if inferences were appropriate at this stage, that inference is not supported by the record. The respondents' solicitors had no reason to suspect that the court office had sent the status notice and dismissal order to the wrong address and that the appellant's solicitors were unaware of the correspondence in their own file. My colleague infers that the respondents' solicitors knew of the appellant's solicitors' mistake because they attended the continued discoveries in the second action and did not raise "the slightest indication that something was amiss". They did know that the other defendant in the action had indicated something was amiss, and had advised the appellant that the action had been dismissed and did so in writing on May 5, 2008. In my view, the inference cannot rest on the mere fact that respondents' counsel did not repeat this information at the discoveries in the second action that continued on June 25, 2008, mere weeks after the letter of May 5, 2008. The burden was on the appellant to establish the facts needed to support her motion. She introduced no evidence that the respondents' solicitors were aware that her solicitors had not received the status notice and dismissal order and had failed to note the correspondence in their file. In my view, the better inference is that the respondents' solicitors believed the appellant's solicitors knew the action had been dismissed and attended the subsequent discoveries expecting a motion to set aside would be brought.

Litigation delay

[31] My colleague questions the motion judge's finding that there was no explanation for the litigation delay. He observes that this action "was not proceeding with lightning speed but steps were being taken". The issue on appeal, as I see it, is not whether there were steps taken that could support a finding that there was no unreasonable litigation delay, but rather whether there were facts in the record to support the motion judge's finding that there was litigation delay. The motion judge rested her finding of litigation delay principally on the 20-month delay from the appellant's discovery of August 26, 2005 to its continuation on April 14, 2007. The 20-month delay was in the face of a rule that requires an action to be listed for trial within 24 months of the filing of the defence. The 20-month delay is sufficient to support the motion judge's finding.

[32] My colleague accepts the appellant's position advanced on appeal that the action arising from the second motor vehicle accident explains the delay in this action because the damages from the first accident would be impacted by the second accident. This is not an argument the appellant advanced before the motion judge. Before the motion judge, the appellant's solicitors took the position that there was no litigation delay. The motion judge had an ample basis to reject that position. The action had not proceeded within the time frame prescribed in the rules. It had been commenced in October 2003 and had not been set down for trial when dismissed on August 15, 2007. As the motion judge found, the material filed by the appellant did not seek to explain this delay.

[33] On appeal, the appellant has changed her position and argues that the motion judge should have found that the delay in the progress of the first action was attributable to the appellant's action in regard to her second accident.

[34] The first difficulty with that argument is that the appellant's motion is not before this court de novo. The question before this court is whether the motion judge erred in her disposition of the motion. The motion judge's reasons emphasize that the appellant's position before her was that there was no litigation delay to explain.

[35] The second difficulty with the submission is that the appellant filed no evidence to show how the second action hindered the progress of this action. While trying the two actions together might be the way most counsel would proceed, it should not be assumed, without evidence, that the appellant's solicitors would have proceeded that way. The appellant's solicitors' affidavits do not indicate that they had obtained an order that the two actions be tried together or even that they intended to move for such an order. The affidavits do not even attempt to address how the second action explains the 20-month period of inactivity upon which the motion judge rested her finding of litigation delay. While the assumption that this action was delayed by the need to assess the appellant's damages from both accidents is not unreasonable, the information in the record about the second action is not specific enough to permit the inference that it was the cause of the 20-month delay on which the motion judge rested her finding. With respect, it seems to me that my colleague has failed to maintain on the appellant the burden of establishing there was no litigation delay.

Prejudice

[36] As the motion judge noted, the burden was on the appellant to "convince the court that the defendants have not demonstrated any significant prejudice in presenting their case at trial as a result of the plaintiff's delay or as a result of steps taken following the dismissal of the action": Marché, at para. 12.

[37] I agree that the respondents' solicitors' attendance at the subsequent discoveries in the second action would have reduced any prejudice in their ability to prepare to litigate the appellant's damages in this action. The important point, though, is that the motion judge's findings of prejudice were in relation to the issue of liability. The discoveries in the second action could have no relevance to the issue of liability in the first action. In Marché, Sharpe J.A. held, at para. 35, that "it is not enough for the [plaintiff] to show that the [defendant] could advance its case despite the delay if the matter were allowed to proceed to trial".

[38] My colleague accepts the motion judge's findings of prejudice from the lengthy passage of time, the nature of the action and the expiration of the limitation period. I see no basis for concluding that the motion judge made a palpable and overriding error in her weighing of the prejudice to the respondents.

Delay in moving to set aside not due to inadvertence of counsel

[39] My colleague accepts the motion judge's finding that the appellant's solicitors' lapse in this case constituted "negligence in file management rather than mere inadvertence". He recognizes that "[t]his characterization of the delay favoured dismissal of the motion".

[40] The jurisprudence of this court, despite divergent dicta in some cases, is that the failures of counsel are a relevant consideration in exercising the court's discretion to set aside a dismissal order. In Marché, Sharpe J.A. also explained, beginning at para. 30, why it is relevant to assess the degree of fault involved where the dismissal order is due to a failure of the plaintiff's solicitor. He emphasized how the nature of the solicitor's fault engages the public interest by pointing out [at para. 32] that "[l]awyers who fail to serve their clients threaten public confidence in the administration of justice". Therefore, the court should consider whether the solicitor's failure amounted to more than the [at para. 31] "kind of lapse or inadvertent mistake that the legal system can countenance". He added [at para. 31] that the courts "should opt for a resolution that discourages this type of conduct which undermines the important value of having disputes resolved in a timely fashion". Rather, the right message was one that provides the appropriate incentives to those involved in the civil justice system. He cautioned [at para. 32] against the risk "that the public would perceive disregarding the solicitor's conduct . . . as the legal system protecting its own". He advised that the courts should consider whether excusing delay in a particular case would throw into question their willingness to live up to the stated goal of timely justice. Finally, he observed [at para. 30] that where negligence rather than mere inadvertence is involved, "[l] eaving the Registrar's order in place would not necessarily deprive the [plaintiffs] of a remedy". He concluded [at para. 41] that "[r]einstating the action at this point would undermine the finality principle while refusing to reinstate the action does not interfere with the need to ensure adequate remedies".

[41] This court, in Machacek v. Ontario Cycling Assn., [2011] O.J. No. 2379, 2011 ONCA 410, recently applied the Marché approach to a solicitor's conduct that was responsible for the delay. After citing Sharpe J.A.'s reasoning in Marché, the court added [at para. 10] that "the appellants are not left without a remedy as they still have recourse through an action in solicitor's negligence".

[42] It seems to me that the motion judge was much better positioned to assess whether the lapse of the appellant's solicitors in apparently not reviewing their client's file for some 17 months was more than should be countenanced in the practice before her court. There is no indication in my colleague's reasons that any weight is given to the effect of the appellant's solicitors' conduct in undermining public confidence in the administration of justice, the damage caused by the perception that the legal system is protecting its own, the unwillingness of the courts to live up to their stated goal of timely justice and the sending of a message that provides the appropriate incentives to those involved in the civil justice system. The result reached by the majority provides no incentive to lawyers to improve the quality of service to the public, for example, by reviewing their files regularly, being mindful of the expiration of the time period stated in rule 48.14 and generally moving their clients' actions forward. Rather, the careful service provided by the respondents' solicitors underpins the excusal of the appellant's solicitors' failures.

[43] With respect, I see no basis for interfering with the weight the motion judge accorded this factor.

The contextual approach

[44] My colleague says that the motion judge "purported to apply the contextual analysis" but made palpable and overriding errors in doing so. The contextual analysis, as Goudge J.A. said in Scaini at para. [24], requires the court to "consider and weigh all relevant factors to determine the order that is just in the circumstances of the particular case". Obviously, such an analysis can lead to more than one reasonable outcome. The appropriate appellate function is to ensure that the contextual analysis was properly employed, not to ensure that the factors were weighed and balanced to reach the result that the judges of the appellate court would have reached. Here, the motion judge did not commit the error identified in Scaini of requiring the appellant to satisfy each of the four criteria separately without considering and weighing all the relevant factors in the circumstances of the case.

[45] With respect, it seems to me that rather than demonstrating error on the part of the motion judge, my colleague weighs the factors and balances them differently than does the motion judge, and does so on a fresh view of the facts.

[46] In any event, I do not agree that an important contextual feature of this case is the fact that the registrar's notice and dismissal order were not sent to the correct address. While the court's mistake is regrettable, the motion judge completely subtracted the delay that the mistake occasioned from the total period of delay. The motion judge called on the appellant to explain only the delay from the defendant's letter of May 5, 2008 and not the delay from August 15, 2007, the date of the dismissal order. In light of this, I am unable to understand why the court's misdelivery of the dismissal order forms part of the "most important context" in the contextual analysis of the delay the motion judge found.

The authorities relied upon by the motion judge

[47] My colleague starts his analysis by seeking to undermine the motion judge's analysis of finality by distinguishing Marché and Wellwood, two decisions of this court that the motion judge relied upon heavily. He points out that in Marché, the master found that the solicitor effectively abandoned the file, and in Wellwood, this court described the delay as intentional. With respect, it is my view that a fair and sound reading of these cases does not permit them to be distinguished on the basis of these details. In both decisions, the court enunciated general principles that apply to all cases.

[48] On my reading of these cases, that the solicitor "effectively abandoned the file" in Marché and that the delay was "intentional" in Wellwood were inferred from nothing more than the lack of action on the part of the plaintiffs' solicitors in moving the cases forward. In Wellwood, the solicitors for the plaintiff filed an affidavit that they had been working on the file all along, which is hardly evidence of deliberately intentional delay. They swore that they had been occupied with drafting and redrafting the pleadings and motion materials. Despite this, the master observed that they had taken "no meaningful steps" to move the matter forward, and held that the plaintiff had [at para. 21] "failed to discharge his onus to establish that the delay was inadvertent rather than intentional". The master's findings were the basis of this court's remark, at para. 74, that the delay was "intentional".

[49] In Marché, throughout the four-year delay, the plaintiff remained in regular contact with counsel and provided additional funds to prosecute the action. However, counsel did nothing to advance the action. The master found that the explanations offered by counsel for his inaction were less than satisfactory and that he failed to communicate to the other side any intention to move the action toward trial. There was no evidence that counsel had actually put the file in abeyance and had formed the subjective intention not to advance the file. Because counsel had done nothing to move the action forward, the master concluded that counsel "had put the file in abeyance" and that his conduct spoke to [at para. 13] "a deliberate intention not to advance the litigation toward trial". These conclusions were inferred from counsel's inaction.

[50] In any event, a fair reading of Marché does not permit limiting the principles it enunciates to situations in which the solicitor's conduct is described as effectively abandoning the file. In Marché, Sharpe J.A. discusses the import of rule 48.14 at the most general level. At para. 23, he says that "[r]ule 48.14 is one of many rules of civil procedure designed to promote the timely resolution of disputes, to discourage delay in civil litigation, and to give the courts a significant role in reducing delays". After referring to some of the other rules that discourage delay and the court's discretionary power to dismiss an action for delay, Sharpe J.A. made the fundamental observation that delay in an individual case surpasses the rights of the particular litigants and engages the public interest. The strong public interest in promoting the timely resolution of disputes, he pointed out, had been recognized by the Supreme Court of Canada in Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, [2000] S.C.J. No. 43, where the court held, at para. 146, that "[t]he notion that justice delayed is justice denied reaches back to the mists of time . . . For centuries, those working with our legal system have recognized that unnecessary delay strikes against its core values and have done everything within their powers to combat it." Sharpe J.A. added [Marché, at para. 25] that "[d]elay multiplies costs and breeds frustration and unfairness". "[M]odern civil procedure", he observed, at para. 23, requires "the discouragement of delay and the enhancement of an active judicial role to ensure timely justice".

[51] It is apparent that in Marché, Sharpe J.A. discussed the rule and its application at the most general level. The import of his observations cannot be limited to cases in which the cause of the delay is described as a solicitor putting a file in abeyance.

[52] While Sharpe J.A. talked about "modern civil procedure", Cronk J.A. in Wellwood described rule 48.14, at para. 48, as a component of "contemporary litigation". Certainly, the rule is one that departs from the traditional model of civil litigation. In the traditional model, the litigants control how quickly, or slowly, their cases move through the system and great value is placed on the determination of each case on its merits. Rule 48.14 is one that gives the court the authority and responsibility to actively manage the cases before it. The rule provides for the removal of individual cases from the court's docket to serve the greater public interest in an efficient court system.

[53] It is worth noting that the shift away from the traditional model has not been universally embraced. As described by Garry D. Watson and Lynne Jeffrey, Holmested and Watson: Ontario Civil Procedure, vol. 4 Supplement (Toronto: Carswell, 1993), at p. 48-25 and p. AR-90 to AR-91, "Almost from its inception the procedure [under rule 48.14] became controversial, having both its supporters and detractors." The original rule required the registrar to send out a status notice within one year from the statement of defence. Among other things, its detractors thought the rule was intrusive as it is for the parties and not the court to control the pre-trial process. The adherents of the traditional model sought to have it repealed, but despite their initiative, the Civil Rules Committee resolved to retain it in 1991, but extended the time allowed to place a case on the trial list to two years.

[54] As there has been no change to rule 48.14 since 1992, a plaintiff, even one who does not receive a status notice, must realize that failure to set the action down in the prescribed time will lead to the action being dismissed: Marché, at para. 26. The plaintiff's solicitors, in such a case, should take the initiative to arrange a status hearing in order to obtain an "order otherwise", as is contemplated by the rule. At the status hearing, the court may impose a timetable setting time periods for the completion of the remaining steps necessary to have the action placed on or restored to a trial list or the court may dismiss the action.

[55] When this court disturbs a motion judge's exercise of discretion not to set aside a registrar's dismissal order, it undermines the scheme of active case management of sluggish cases for which Rule 48 provides. This highlights why this court has stated such decisions should be accorded "significant deference". With respect, my view is that the majority has failed to show the requisite deference for the motion judge's decision.

Conclusion

[56] Every finding the motion judge made in analyzing the four Reid factors [Reid v. Dow Corning Corp., [2001] O.J. No. 2365, 11 C.P.C. (5th) 80 (S.C.J.), revd on other grounds [2002] O.J. No. 3414, 48 C.P.C. (5th) 93 (Div. Ct.)], had a basis in the record. In making those findings, she carefully applied the principles this court set out in Marché and Wellwood. She considered and weighed the relevant factors in the circumstances of the particular case in arriving at her determination. Her determination was discretionary and made in the course of managing her own court's trial list. Given the significant deference her determination attracts, there is no basis for interfering with it.

[57] I would dismiss the appeal and fix the respondents' costs in the amount of $7,500, inclusive of disbursements and applicable taxes.

Appeal allowed.

Notes

Note *: The parties have agreed that the action, as against Associate Leasing, should be discussed without cost.