COURT OF APPEAL FOR ONTARIO

CITATION: Bolohan v. Hull, 2012 ONCA 121

DATE: 20120222

DOCKET: C53947

Sharpe, Armstrong and Watt JJ.A.

BETWEEN

Denise Bolohan

Plaintiff (Appellant)

and

Judith Hull

Defendant (Respondent)

William G. Scott, for the appellant

Mark D. Contini, for the respondent

Heard: February 7, 2012

On appeal from the order of Justice K.A. Gorman of the Superior Court of Justice, dated June 3, 2011.

ENDORSEMENT

[1] The appellant, the plaintiff in a wrongful dismissal action, appeals the decision of a Superior Court Judge (the “appeal judge”), allowing an appeal from an order of a Master made at a rule 48.14 status hearing, and dismissing her action for delay.

[2] The appellant and the respondent are both lawyers. The appellant was formerly employed by the respondent. She was terminated in October 2006 and brought this action claiming damages for wrongful dismissal.

[3] Although one of the issues on this appeal is the state of the record before the Master, at the end of the day, the essential facts do not appear to be in dispute. These may be gleaned from the reasons of the Master and the fresh evidence filed and admitted on this appeal.

[4] The steps taken in the action may be summarized as follows:

• September 18, 2008 – Notice of Action filed
• October 17, 2008 – State of Claim delivered
• November 6, 2008 – Notice of Intent to Defend filed
• November 27, 2008 – Statement of Defence delivered
• Respondent served Offer to Settle. Appellant did not respond and the offer was withdrawn.
• Court assigned a settlement conference date of November 24, 2010 (action came under Case Management pursuant to Rule 77).
• Mediation session date to be scheduled for no later than November 24, 2009
• March 27, 2009 – Appellant’s counsel attempted to schedule the mediation
• May 11, 2009 – Respondent’s counsel responded by letter opposing the appointment of the proposed Roster Mediator and suggesting a non-Roster Mediator. Appellant’s counsel did not reply to this letter
• November 18, 2010 – Court issued a Status Notice
• February 9, 2011 – Appellant requested that the Court schedule a status hearing
• April 4, 2011 – Status hearing held before the Master.

[5] Before the status hearing, counsel for the respondent wrote to counsel for the appellant advising that he would be asking the Master to dismiss the action for delay. Counsel for the appellant replied that he would address the issue at the status hearing and proposed a timetable in order to move the matter forward. Counsel for the respondent rejected the timetable proposed by the appellant.

[6] On the basis of the oral representations made at the status hearing, the Master concluded that although it appeared that the plaintiff had no explanation for a delay of some 22 months, the defendant had “sat idly waiting for the case to come up”. The Master noted that the defendant herself had failed to comply with the rules, presumably a reference to the fact that the respondent had failed to file her affidavit of documents. The Master concluded that the respondent’s request that the action be dismissed for delay should be denied. Pursuant to her discretion under rule 48.14 (13), the Master prescribed a detailed timetable and discovery plan for the completion of the action.

[7] As we read her reasons, the appeal judge allowed the appeal from the Master on the ground that the appellant failed to satisfy her onus under the rule 48.14 because she failed to file affidavit evidence.

[8] In our view, the Superior Court judge erred in so holding. The usual practice is for the initial status hearing to proceed on the basis of oral submissions. If the judicial officer conducting the status hearing forms the view, on the basis of the oral submissions, that the action is vulnerable dismissal for delay, ordinarily a full hearing will be ordered on affidavit evidence: see Oberding v. Sun Life Financial Assurance Co. of Canada 2010 ONSC 3303, 267 O.A.C. 120 (Div. Ct.), at para. 25; Koepcke v. Webster, 2012 ONSC 357 (Master), at para. 13.

[9] We note as well that counsel for the respondent made no objection to the appellant's counsel outlining the facts by way of oral submissions.

[10] In these circumstances, it is our view that counsel for the appellant was entitled to proceed before the Master at the initial status hearing without affidavit evidence. The appeal judge therefore erred in finding that the appellant had failed to meet the onus imposed by rule 48.14 to explain the delay simply because no affidavits were filed.

[11] This leads us to conclude that the appeal judge’s order must be set aside.

[12] Ordinarily, this would leave us with the decision of the Master, which would attract deference. In our view, however, the Master misstated the proper legal test to be applied at a rule 48.14 status hearing. At two points in her endorsement, the Master stated that the test to be applied is the same as on a motion to dismiss for delay under Rule 24. That rule imposes a burden on the defendant to show why the action should be dismissed and makes it a condition to a defendant’s request to have the action dismissed for delay that the defendant not be in default under the rules. It was conceded in argument before us that Rule 24 has no application to a rule 48.14 status hearing.

[13] At another point in her endorsement, however, the Master stated the proper test: the plaintiff bears the burden of demonstrating that there is an acceptable explanation for litigation delay and that, if the action is allowed to proceed, the defendant will suffer no non-compensable prejudice: Oberding v. Sun Life Financial Assurance Co. of Canada, at para 15; see also Kahn v. Sun Life Assurance Company of Canada 2011 ONCA 650 at para 1. However, it is not clear to us that, in the end, the Master applied the correct test.

[14] In these circumstances we could remit the matter to the Superior Court for another status hearing. We are, however, satisfied that the relevant, undisputed facts before us are sufficient to make our determination and that to do so is in the interests of justice.

[15] Although we regard this case as a very close call, we are of the view that the action should be permitted to proceed according to the timetable set out by the Master, with the dates adjusted to the release date of these reasons.

[16] The appellant’s failure to move this action forward in a timely manner is troubling. On the other hand, we do not agree with the respondent that there was an unexplained delay of 22 months. The appellant attempted to schedule a mediation four months after the statement of defence was filed, but was met with the respondent’s insistence of a non-roster mediator. Counsel for the appellant assumed that the court would automatically assign a roster mediator, in accordance with what he believed to be the usual practice. That did not occur. The delay from the appellant's attempt to schedule the mediation to the Court-served status notice was almost eight months. Three months later, the appellant asked the court to schedule a status hearing. Prior to the status hearing, the appellant proposed a timetable that would have set the matter down for trial by the end of 2011.

[17] Although the appellant failed to prosecute this action in an appropriate fashion, the question is whether the delay has been sufficiently explained so as to allow the action to proceed. While the focus of the inquiry on a rule 48.14 status hearing is the plaintiff’s conduct, the conduct of the respondent in the litigation can still have bearing on our assessment of the reason for the delay and on how we the exercise the discretion conferred by rule 48.13. The respondent may have been strictly entitled to insist on a non-roster mediator. That would, however, involve more expense and is hardly a tactic consistent with a willingness to see a relatively straightforward case proceed expeditiously. The respondent also failed to file her affidavit of documents despite the fact that virtually all of the relevant documents would be in the respondent’s possession. Although the respondent’s conduct is not fatal to a request to have the action dismissed as a status hearing, it demonstrates that the delay was not exclusively attributable the appellant, as she did take some steps to move the action forward but faced some resistance on the part of the respondent.

[18] For these reasons, the appeal is allowed and the order of the appeal judge is set aside. In its place, an order based upon para. 21 of the Master’s endorsement, adjusted as indicated in these reasons, shall issue. Costs to the appellant in the agreed sum of $7,500 inclusive of disbursements and HST.

“Robert J. Sharpe J.A.”

“R.P. Armstrong J.A.”

“David Watt J.A.”