1196158 Ontario Inc. v. 6274013 Canada Limited et al. [Indexed as: 1196158 Ontario Inc. v. 6274013 Canada Ltd.]
112 O.R. (3d) 67
2012 ONCA 544
Court of Appeal for Ontario,
Laskin, Sharpe and Epstein JJ.A.
August 21, 2012
Civil procedure -- Dismissal for delay -- Plaintiff failing to comply with timetable agreed upon at status hearing -- Action dismissed for [page68 ]delay at subsequent status hearing -- Plaintiff's appeal dismissed -- Action not having progressed beyond pleadings stage after five years -- Order made at first status hearing not absolving plaintiff for all prior delay -- Status hearing judge entitled to consider entire history of delay -- Status hearing judge not erring by finding that defendants believed that plaintiff was not pursuing action in absence of affidavit evidence to that effect -- Status judge not erring in dismissing action for delay without evidence of actual prejudice to defendants.
The plaintiff commenced an action in September 2006. The court issued a status notice in October 2008 as the matter had not been set down for trial within two years of the filing of a defence. In fact, the matter had not progressed beyond the pleadings stage. A status hearing was held in January 2010 and a timetable was agreed upon requiring discoveries to be completed and the action set down for trial by June 2011. The plaintiff failed to take the steps within the time limits required by the timetable and, at a status hearing held in September 2011, the action was dismissed for delay. The plaintiff appealed.
Held, the appeal should be dismissed.
The plaintiff was not absolved for all prior delay by the order made at the January 2010 status hearing. That order was properly described by the September 2011 status hearing judge as a "lifeline" that allowed the plaintiff to proceed on the basis of the timetable ordered. The plaintiff ignored that lifeline. It was open to the status hearing judge to consider the entire history of delay. In the circumstances, it was open to the status hearing judge to base a finding that the defendants believed that the plaintiff was not pursuing the action solely on the oral submission of counsel for the defendants and in the absence of any affidavit evidence. After five years of inaction on the part of the plaintiff, it was virtually inevitable that the defendants would assume that the claim was not being pursued. The defendants did nothing to resist any attempt by the plaintiff to advance the action. Failing any initiative on the part of the plaintiff, to require the defendants to spend time and money to prepare for a case that, from all appearances, was dead on the vine would be to impose an unnecessary and unreasonable burden. Finally, the status hearing judge did not err in dismissing the action for delay without evidence of actual prejudice to the defendants. The absence of actual prejudice does not automatically or inevitably trump the values of timeliness and efficiency. Moreover, the status hearing judge noted that adjudication of the claims would involve documents and events potentially going back more than 15 years and expressed concerns as to whether a fair trial could be held on the issues raised in the action. It was open to the judge to find that as more time went on, it would be more and more difficult to defend the claim.
APPEAL from the order of Ricchetti J., [2011] O.J. No. 4668, 2011 ONSC 5410 (S.C.J.) dismissing the action for delay.
Cases referred toBlencoe 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; Bolohan v. Hull, [2012] O.J. No. 749, 2012 ONCA 121, 99 C.C.E.L. (3d) 307, 212 A.C.W.S. (3d) 387; Broniek-Harren v. Osborne, [2008] O.J. No. 1690, 2008 CarswellOnt 2544 (S.C.J.); 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; Hamilton (City) v. Svedas Koyanagi Architects Inc. (2010), 104 O.R. (3d) 689, [2010] O.J. No. 5572, 2010 ONCA 887, 271 O.A.C. 205, 328 D.L.R. (4th) 540, 97 C.L.R. (3d) 1, 2 C.P.C. (7th) 114; [page69 ]Khan v. Sun Life Assurance Co. of Canada, [2011] O.J. No. 4590, 2011 ONCA 650, 1 C.C.L.I. (5th) 183, 208 A.C.W.S. (3d) 59; 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; Riggitano v. Standard Life Assurance Co., [2010] O.J. No. 292, 2010 ONCA 70, affg [2009] O.J. No. 1997, 2009 CarswellOnt 2685, 177 A.C.W.S. (3d) 364 (S.C.J.); Sepehr Industrial Mineral Exports Co. v. Alternative Marketing Bridge Enterprises Inc. (2007), 2007 23175 (ON SC), 86 O.R. (3d) 550, [2007] O.J. No. 2438, 158 A.C.W.S. (3d) 745, 49 C.P.C. (6th) 360 (S.C.J.); 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 Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 1.04(1), 48.14, (1), (8), (10), (12), (13) Authorities referred to Archibald, Todd, Gordon Killeen and James C. Morton, Ontario Superior Court Practice (Markham, Ont.: LexisNexis Canada, 2011) Osborne, Coulter A., Civil Justice Reform Project: Summary of Findings & Recommendations (Toronto: Ontario Ministry of the Attorney General, 2007) Perell, Paul M., and John W. Morden, The Law of Civil Procedure in Ontario, 1st ed. (Markham, Ont.: LexisNexis, 2010) Pitel, Stephen G.A., "Revival after Dismissal for Delay: Marche D'Alimentation Denis Theriault Ltee v. Giant Tiger Stores Ltd." (2008), 34 Advocates' Q. 240
William Pepall and Louise Moher, for appellant. J. Schatz and D. Holden, for respondents 6274013 Canada Limited and Rob Kumer. Sonja Williams, for respondents Toronto Hydro Corporation, Toronto Hydro-Electric System Ltd. and Toronto Hydro Energy Services Inc. S. Pettipiere, for respondent CB Richard Ellis Limited. Christiaan Jordaan, for respondent William Neilson Limited.
The judgment of the court was delivered by
SHARPE J.A.: --
[1] The plaintiff's action, commenced in September 2006, had not proceeded beyond the close of pleadings five years later in September 2011 and was dismissed on a rule 48.14 status hearing.
[2] The court issued a status notice pursuant to rule 48.14 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 in October 2008 as the matter had not been set down for trial within two years of the filing of a defence. After several adjournments, a status hearing was finally held in January 2010 and a timetable was agreed upon requiring discoveries be completed and the [page70 ]action be set down for trial by June 2011. The plaintiff failed to take the steps within the time limits required by the timetable and, at a status hearing held in September 2011, the presiding judge dismissed the action for delay.
[3] The plaintiff appeals that order. For the following reasons, I would dismiss the appeal. The Plaintiff's Claim
[4] The plaintiff purchased a commercial property from 6274013 Canada Limited ("627") in June 2005. The plaintiff commenced this action in September 2006 alleging that 627 breached its contractual obligation to provide a 600 ampere electrical service and that the defendants 627, its officer Rob Kumer and the agents CB Richard Ellis Ltd., John Lafontaine, Karen Pickernell and Carl Lavoie misrepresented that the property had a 600 ampere service. The plaintiff also alleged that the defendant William Neilson Ltd. ("Neilson"), the lessee of the property from 1994 to 2005, had breached its lease agreement with the prior owner before its lease terminated in September 2005. The plaintiff subsequently moved successfully to join the defendants Toronto Hydro-Electric System Ltd. and Toronto Hydro Energy Services Inc. ("Toronto Hydro"), alleging that they negligently damaged the electrical service at the property. Rule 48.14
[5] Where an action has not been placed on the trial list within two years of the defence being filed, the registrar issues a status notice indicating that the action will be dismissed for delay unless the matter is set down for trial within 90 days of the notice: rule 48.14(1). A party may request a status hearing, held before a judge or case management master (rule 48.14(8)), which will be held in writing where the party files an agreed timetable for the necessary steps to be completed to ensure that the matter is set down for trial within 12 months (rule 48.14(10)). If no such timetable is filed, a status hearing is held pursuant to rule 48.14(12).
[6] Rule 48.14(13) provides:
48.14(13) At the status hearing, the plaintiff shall show cause why the action should not be dismissed for delay and, (a) if the presiding judge or case management master is satisfied that the action should proceed, the judge or case management master may, (i) set time periods for the completion of the remaining steps necessary to have the action placed on or restored to a trial list and order that it be placed on or restored to a trial list within a specified time, [page71 ] (ii) adjourn the status hearing to a specified date on such terms as are just, or (iii) if the action is an action to which Rule 77 may apply under rule 77.02, assign the action for case management under that Rule, subject to the direction of the regional senior judge, (iv) make such other order as is just; or (b) if the presiding judge or case management master is not satisfied that the action should proceed, the judge or case management master may dismiss the action for delay. The Chronology of this Action
[7] The statement of claim was issued on September 6, 2006. 627 and Neilson delivered their statements of defence on October 19, 2006 and November 15, 2006 respectively. The plaintiff amended its statement of claim on January 25, 2007, and 627 and Neilson served amended statements of defence in February and March 2007. The plaintiff took no steps to move the action beyond the pleading stage. A status notice was issued on October 31, 2008, two years after the commencement of the action. At the plaintiff's request, a notice of status hearing for December 9, 2008 was issued. At that point, the plaintiff had still taken no steps to move the action beyond the pleading stage. The December 9, 2008 status hearing was adjourned on consent at the plaintiff's request to allow the plaintiff to move to add the Toronto Hydro defendants. That motion was heard and decided in May 2009. Status hearings set for January 27, 2009, August 25, 2009 and October 27, 2009 were adjourned and a status hearing was finally held on January 19, 2010. By that point, three years and four months after commencing the action, the plaintiff still had not moved the action beyond the pleading stage.
[8] At this status hearing, the presiding judge approved an agreed timetable requiring the completion of pleadings by February 26, 2010 and delivery of affidavits of documents by March 19, 2010. The timetable also required the parties to agree to a discovery plan by March 19, 2010 or, alternatively, to bring a motion to fix a plan by April 2, 2010. Examinations for discovery were to be completed by September 30, 2010, undertakings given at examination for discovery completed by November 30, 2010, related discovery motions completed by January 2011 and the action set down for trial by June 30, 2011. If the action was not set down by that date, a further status hearing was to be conducted on September 13, 2011.
[9] The plaintiff delivered an amended statement of claim on January 19, 2010 adding the Toronto Hydro defendants. The defendants filed amended statements of defence and related [page72 ]pleadings in February and March 2010. On March 16, 2010, plaintiff's counsel, without presenting his own discovery plan, asked the defendants for their proposed discovery plans. Counsel for 627 responded that it would make more sense for the plaintiff to circulate a proposed discovery plan. Plaintiff's counsel did not respond to that suggestion and took no further steps in the action for the next year and five months.
[10] Before the September 13, 2011 status hearing, counsel for defendants 627 and Kumer indicated that they would ask to have the action dismissed for delay. On September 1, 2011, plaintiff's counsel served an affidavit of documents and proposed a new timetable and discovery plan. The plaintiff also filed affidavit evidence in an attempt to meet the defendants' request to have the action dismissed for delay.
[11] At the September 13, 2011 status hearing, the defendants asked that the action be dismissed. The plaintiff relied on the fact that none of the parties had complied with the timetable set at the January 19, 2010 status hearing and that the attention of the principal and counsel for the plaintiff, who are brothers, had been diverted from the action by financial concerns and personal problems, including the death of their father and brother and elder care for their mother. The Reasons of the Status Hearing Judge
[12] The status hearing judge reviewed the chronology of the action and the positions of the parties. He identified and applied the legal test requiring the plaintiff to satisfy the status hearing judge that there is both an explanation for the delay that justifies the continuation of the action and that there would be no prejudice to the defendant in allowing the action to proceed. The status hearing judge found that the plaintiff had failed to satisfy that test. He observed that although the plaintiff had failed to move the action beyond the pleadings, it had been give a "lifeline" at the January 19, 2010 status hearing but had failed to comply with the timetable it agreed to follow at that time. The status hearing judge stated "[d]espite being given this opportunity, the Plaintiff did nothing to move this action along for a further year and a half! Other than serving the Hydro Defendants, the Plaintiff simply ignored January 19, 2010 Order."
[13] The status hearing judge noted that the defendants had done nothing to move the action along but that they reasonably believed, in light of the history of the action and the plaintiff's failure to comply with the January 19, 2010 order, that the plaintiff was not pursuing the action. The status hearing judge found that while the financial and personal issues faced by [page73 ]counsel and the principal of the plaintiff evoked sympathy, those personal factors were not enough to justify a five-year delay in prosecuting the action. In any event, if those problems were the reason for not proceeding, the plaintiff should have asked for an adjustment to the timetable set in January 2010. The status hearing judge concluded that there had been a "lack of any real progress in 5 years" beyond pleadings and a "complete disregard of the timetable imposed on January 19, 2010".
[14] The status hearing judge observed that there was no alleged or demonstrated actual prejudice to the defendants. However, he noted that the limitation period for the claims had long expired and that adjudication of the claims, especially those against Neilson, would involve documents and events potentially going back more than 15 years. He found that although no actual prejudice had been demonstrated, he had "concerns as to whether a fair trial can be held on the issues raised in the action". The status hearing judge concluded that the action should be dismissed:
There must be finality to claims. The Plaintiff has been given numerous chances to proceed with the action. At some point, the court has to say the Plaintiff has had enough opportunities to move this action along. The Defendants have had to deal with these claims for over 5 years and shouldn't be forced to have this claim remain a contingent claim against them. Issues
[15] The overarching issue in this case is whether the order dismissing the action be set aside on the ground that the status hearing judge failed to apply the correct legal test or committed palpable and overriding errors by misapprehending evidence. The appeal raises several specific issues: (1) Did the status hearing judge commit palpable and overriding errors by misapprehending the evidence in relation to the number of previous status hearings and the history of the action? (2) Did the status hearing judge commit palpable and overriding errors by finding, without affidavit evidence, that the defendants believed that the plaintiff was not pursuing the action? (3) Did the status hearing judge err in dismissing the action for delay without evidence of actual prejudice? Analysis (a) Standard of review
[16] It is common ground that a decision to dismiss an action for delay at a status hearing is discretionary and entitled to [page74 ]deference on appeal. The decision may, however, be set aside if made on an erroneous legal principle or if infected by a palpable and overriding error of fact. (b) Delay and fairness in civil litigation
[17] The civil justice system aims to resolve disputes fairly, on the merits and in a timely and efficient manner. The Rules of Civil Procedure provide that the rules are to be "liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits": rule 1.04(1).
[18] Achieving that goal in cases involving dismissal for delay requires a careful balance of two fundamental principles. The first is that civil actions should, if possible, be decided on their merits and procedural rules should be interpreted accordingly. The second is that the procedural rules that aim to resolve disputes in a timely and efficient manner can only achieve their goal if they are respected and enforced.
[19] Timelines 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 latitude for unexpected and unusual contingencies that make it difficult or impossible for a party to comply. We should strive to avoid a purely formalistic and mechanical application of timelines that would penalize parties for technical non-compliance and frustrate the fundamental goal of resolving disputes on their merits. As Laskin J.A. stated in Finlay v. Van Paassen (2010), 101 O.R. (3d) 390, [2010] O.J. No. 1097, 2010 ONCA 204, at para. 14, "the Rules and procedural orders are construed in a way that advances the interests of justice, and ordinarily permits the parties to get to the real merits of their dispute".
[20] The challenge posed in cases involving dismissal for delay is to find the right balance between, on the one hand, the need to ensure that the rules are enforced to ensure timely and efficient justice and, on the other, the need to ensure sufficient flexibility to allow parties able to provide a reasonable explanation for failing to comply with the rules to have their disputes decided on the merits.
[21] With these general principles as background, I will now consider the specific grounds of appeal advanced by the plaintiff.
Issue 1. Number of status hearings and history of the action
[22] The plaintiff submits that the status hearing judge committed palpable and overriding errors by misapprehending the [page75 ]evidence in relation to the number of previous status hearings and the history of the action.
[23] The status hearing judge stated that the matter had been "before this court a number of times prior to this date -- one Status Notice and 5 Status Hearings" and that he was entertaining "the 6th Status Hearing" (emphasis in original). In fact, there had only been one prior status hearing and the other four scheduled hearings had all been adjourned. The plaintiff argues that it was an error to take into account the adjournments of the first status hearing and related delay as no timetable had yet been set and that period had been dealt with by the judge who conducted the January 2010 status hearing.
[24] I am unable to accept this submission. Although the status hearing judge described the hearing he was conducting as "the 6th Status Hearing", it is clear from his review of the chronology of the action that he was under no misapprehension as to the number of status hearings that had actually been held.
[25] I completely disagree with the contention that the plaintiff was somehow absolved for all prior delay by the order made at the January 2010 status hearing. That order, made despite over three years of delay, was properly described by the September 2011 status hearing judge as a "lifeline" that allowed the plaintiff to proceed on the basis of the timetable ordered. The plaintiff ignored the lifeline it had been given and failed to respect the timetable that had been set. Without repentance, there can be no absolution. The plaintiff did not emerge from the January 2010 status hearing with a clean slate and it was open to the status hearing judge to consider the entire history of delay.
[26] It is also submitted that the status hearing judge misapprehended the impact of the motion to add Toronto Hydro. I disagree. That motion was heard and decided in May 2009 and the amended endorsement issued in November 2009 was a minor correction that did not affect the substance of the matter. The plaintiff's failure to prosecute this action with the required degree of diligence cannot be explained by the motion to add Toronto Hydro.
Issue 2. Conduct of the defendants
[27] The plaintiff submits that the status hearing judge erred by finding that the defendants believed that the plaintiff was not pursuing the action as there was no affidavit evidence to that effect, only the oral submission of counsel at the hearing. It certainly would have been preferable to have had affidavit evidence on the point. However, in my view, in the circumstances of this case, it was open to the status hearing judge to infer from the dilatory action of the plaintiff that there was a factual foundation [page76 ]for counsel's submission. After five years of inaction on the part of the plaintiff, it was virtually inevitable that the defendants would assume that the claim was not being pursued. At the very least, without some action on the part of the plaintiff, the defendants would be disinclined to spend any time or money in preparing affidavits of documents or taking any other steps in anticipation of a trial that, as time went by, became increasingly unlikely to happen.
[28] The focus of the inquiry on a rule 48.14 status hearing is the conduct of the plaintiff and, as this court held in Wellwood v. Ontario Provincial Police (2010), 102 O.R. (3d) 555, [2010] O.J. No. 2225, 2010 ONCA 386, at para. 48, "the party who commences the proceeding bears primary responsibility for its progress" and therefore "the initiating litigant generally suffers the consequences of a dilatory regard for the pace of litigation". See, also, Hamilton (City) v. Svedas Koyanagi Architects Inc. (2010), 104 O.R. (3d) 689, [2010] O.J. No. 5572, 2010 ONCA 887, at paras. 27-28.
[29] I agree that the conduct of a defendant may be relevant, especially where a plaintiff who tries to move an action along is faced with "some resistance" from the defendant, or tactics that are not "consistent with a willingness to see a relatively straightforward case proceed expeditiously": see Bolohan v. Hull, [2012] O.J. No. 749, 2012 ONCA 121, at para. 17.
[30] In this case, however, the defendants did nothing to resist any attempt by the plaintiff to advance the action. They cannot be accused of "lying in the weeds" and hoping to gain a tactical advantage. Failing any initiative on the part of the plaintiff, to require the defendants to spend time and money to prepare for a case that, from all appearances, was dead on the vine would, in my view, be to impose an unnecessary and unreasonable burden.
Issue 3. Prejudice
[31] The defendants did not allege that if the action were allowed to proceed, they would face actual prejudice of the kind caused by, for example, "the death of an important witness, the inability to locate a witness, the inability of a witness to recall [important] facts or the loss of important evidence, including documents": Paul M. Perell and John W. Morden, The Law of Civil Procedure in Ontario (Markham, Ont.: LexisNexis, 2010), at p. 423.
[32] Actual prejudice or the lack thereof is an important factor to consider in cases of dismissal for delay: Hamilton, at para. 33. However, it is certainly not the law that an action cannot be dismissed for delay at a rule 48.14 status hearing without proof of actual prejudice. The status hearing judge applied the test as stated by this court in [page77 ]Khan v. Sun Life Assurance Co. of Canada, [2011] O.J. No. 4590, 2011 ONCA 650, at para. 1: "the appellant [plaintiff] bore the burden of demonstrating that there was an acceptable explanation for the involved litigation delay and that, if the action was allowed to proceed, the respondent [defendant] would suffer no non-compensable prejudice". The test is conjunctive, not disjunctive. Even if the plaintiff can provide a satisfactory explanation for the delay, the action will be dismissed if there would be prejudice to the defendant. And if the plaintiff is not able to provide a satisfactory explanation for the delay, it is still open to the judge to dismiss the action, even if there is no proof of actual prejudice to the defendant.
[33] As I have noted, the goal of the civil justice system is ensure "the just, most expeditious and least expensive determination of every civil proceeding on its merits". Consideration of actual prejudice focuses on the just determination of the dispute on its merits. The absence of actual prejudice does not automatically or inevitably trump the values of timeliness and efficiency. At some point, a party who has failed to respect the rules designed to ensure timely and efficient justice loses the right to have its dispute decided on the merits. If that were not the case, the rules and the timelines they impose would cease to have any meaning and any hope of ensuring timely and efficient justice would be seriously jeopardized.
[34] Modern civil procedure recognizes the need to deal with unexplained delay and, through rules such as rule 48.14, provides for an active judicial role "to promote the timely resolution of disputes, to discourage delay in civil litigation and to give the courts a significant role in reducing delays": Todd Archibald, Gordon Killeen and James C. Morton, Ontario Superior Court Practice (Markham, Ont.: LexisNexis Canada, 2011), at p. 1205. As judgments of this court and the Superior Court recognize, if an action could not be dismissed for delay unless there was proof of actual prejudice, timelines would become meaningless. Where a party fails to prosecute an action in a timely fashion, the court is entitled to exercise the powers conferred by the rules to dismiss actions absent an adequate explanation for the delay: Riggitano v. Standard Life Assurance Co., [2009] O.J. No. 1997, 2009 CarswellOnt 2685 (S.C.J.), at para. 45, affd [2010] O.J. No. 292, 2010 ONCA 70.
[35] It is surely not too much to expect a party to either set a matter down for trial within two years of the close of pleadings or be able to offer a reasonable explanation for why that is not possible to do so. In this case, the plaintiff had no explanation for an initial lengthy period of inaction. Despite that unexplained delay, the plaintiff was permitted to proceed with the action, but again [page78 ]failed to take any meaningful step towards trial for another period of almost 18 months. In these circumstances, the status hearing judge did not err by concluding that the time for any further indulgence had passed.
[36] The balance to be struck in the circumstance of a case such as this was very well put by Glithero J. in Riggitano, at para. 45, a decision affirmed by this court:
It is never pleasant to dismiss a plaintiff's action for delay. Nevertheless, Rule 48.14 clearly contemplates that two years following the filing of a statement of defence is viewed as being ample time to complete remaining steps and have a matter set down for trial, absent some satisfactory explanation. Where a contest arises, sub-rule (8) squarely puts the onus on [the] plaintiff to show cause why the action should not be dismissed for delay. Here more than five years, and hence more than twice the normal time period contemplated by the rule, has gone by and in my assessment the plaintiff has done very little to move the matter along. In my opinion, the materials do not disclose any satisfactory explanation for the delay. If the common submission, as made here, to the effect that a dismissal would be unfair to the plaintiff is permitted to always trump the provision in the rules contemplating a reasonably timely procedure for the disposition of actions, then the rule would be effectively gutted. (Emphasis added)
[37] I also agree with and adopt the statement of D.K. Gray J. in Broniek-Harren v. Osborne, [2008] O.J. No. 1690, 2008 CarswellOnt 2544 (S.C.J.), at paras. 28-29:
The policy underlying the Rules of Civil Procedure is twofold: to ensure that cases that are not settled are tried on their merits; and to ensure that cases are processed, and heard, in an orderly way. A civilized society must ensure that a credible system of justice is in place, and the Rules of Civil Procedure, made pursuant to the Courts of Justice Act, reflect the scheme created by the Province for the orderly handling of civil cases.
The Rules reflect a balance. The litigant does not have an untrammelled right to have his or her case heard. In order to be heard, a case must be processed in accordance with the Rules. By the same token, adherence to the Rules must not be slavish in all circumstances. They are, after all, designed to ensure that cases are heard. Throughout the Rules, the principle is reflected that strict compliance may be dispensed with where the interests of justice require it: see, for example, Rules 1.04(1), 2.01, 2.03, 3.02, and 26.01. The difficult issue, in any particular case, is to determine when non-compliance reaches the point that it can no longer be excused. The Court, and society as a whole, have an interest in ensuring that the system remains viable. If the Rules can be ignored with impunity, they might as well not exist. (Emphasis added)
[38] See, also, Sepehr Industrial Mineral Exports Co. v. Alternative Marketing Bridge Enterprises Inc. (2007), 2007 23175 (ON SC), 86 O.R. (3d) 550, [2007] O.J. No. 2438 (S.C.J.), at para. 21, Quinn J:
Legal proceedings are not to be undertaken lightly. Plaintiffs have a responsibility to prosecute their actions diligently and in accordance with the [page79 ]Rules of Civil Procedure. Our legal system, sagging, as it is, under the weight of a heavy caseload, should not lightly tolerate anything short of that diligence.
[39] These cases quite properly reflect and reinforce the strong public interest in promoting the timely resolution of disputes. "The 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": 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, at para. 25, quoting Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307, [2000] S.C.J. No. 43, 2000 SCC 44, at para. 146. Excusing significant delay "risks undermining public confidence in the administration of justice": Marché, at para. 32. The timelines the rules impose are relatively generous and there is a heavy price to be paid when they are not respected.
[40] As Professor Stephen G.A. Pitel observed in "Revival after Dismissal for Delay: Marche D'Alimentation Denis Theriault Ltee v. Giant Tiger Stores Ltd." (2008), 34 Advocates' Q. 240: ". . . our system of civil justice is under almost constant scrutiny. One of the most fundamental concerns is that the process is far too complex, too expensive and takes too long". In his review of the civil justice system the Honourable Coulter Osborne, Q.C. observed that the related issues of cost and delay "continue to be cited nationally and provincially as formidable barriers that prevent average Canadians from accessing the civil justice system": Civil Justice Reform Project, Summary of Findings & Recommendations (Toronto: Ontario Ministry of the Attorney General, 2007), at p. 1. A system that tolerates unexplained delay will not attract public confidence.
[41] The civil justice regime should deliver timely justice to both plaintiffs and defendants. Failure to enforce timelines frustrates the legitimate expectations of both those who claim and those who defend. Unless the basic ground rules of litigation -- including time requirements -- are enforced in a principled way, counsel cannot provide reliable advice and clients cannot plan their affairs in an orderly manner.
[42] If flexibility is permitted to descend into toleration of laxness, fairness itself will be frustrated. As the status hearing judge recognized, even if there is no actual prejudice, allowing stale claims to proceed will often be unfair to the litigants. Disputes are more likely to be resolved fairly if they are resolved in a timely fashion and, accordingly, the enforcement of timelines helps achieve the ultimate goal of fair resolution of disputes. [page80 ]Stale claims are more difficult to defend. As this court stated in Wellwood, at para. 72, "as the memories of witnesses fade over time, the passage of an inordinate length of time after a cause of action arises or after an applicable limitation period expires gives rise to trial fairness concerns. In my view, this is so even when timely notice of the claim has been provided."
[43] The allegations made in the statement of claim in this case reach back many years, to a period earlier than the date of sale in 2005. In my view, it was open to the status hearing judge to find that as time went on, it would be more and more difficult to defend a claim that related to events that had transpired at least six years ago and that would be even more remote by the time a trial could be held. The more time that passes, the more difficult it is to defend the case. Memories fade and even if documents are not lost, their significance becomes shrouded.
[44] 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. In my view, it was entirely proper for the status hearing judge to weigh in the balance the fact that the defendants would inevitably suffer some harm if, after more than five years and no significant movement by the plaintiff, they were forced to continue to face this contingent claim. Conclusion
[45] In my view, the reasons of the status hearing judge reveal no errors of fact or law that would justify this court's intervention. The discretionary decision of the status hearing judge attracts deference in this court. As his decision is consistent with the applicable legal principles I have identified and reveals no reversible errors of fact, I would dismiss the appeal with costs to 627 and Neilson fixed at $7,500 each, inclusive of disbursements and taxes.
Appeal dismissed.