COURT OF APPEAL FOR ONTARIO

CITATION: Kara v. Arnold, 2014 ONCA 871

DATE: 20141205

DOCKET: C58860

Blair, Pepall and Lauwers JJ.A.

BETWEEN

Shafik Kara, Ireme Kara, Madatali Kara and Brother’s Collision & Refinishing

Plaintiffs

(Appellants)

and

Roland Arnold, Highway Pharmacy Inc., Rashid Keshavjee and Gulshan Keshavjee

Defendants

(Respondent)

Paul R. Sweeny and Adam J. Huff, for the appellants

Kosta Kalogiros, for the respondent, Roland Arnold

Heard: November 26, 2014

On appeal from the order of Justice Douglas K. Gray of the Superior Court of Justice dated April 22, 2014, with reasons reported at 2014 ONSC 2647.

Blair J.A.:

Background

[1] The appellant plaintiffs seek to set aside the Status Court order of Gray J. dated April 22, 2014, dismissing their action for delay pursuant to rule 48.14.

[2] The appellants had sued the respondent Dr. Arnold and others claiming medical malpractice, as a result of an over-prescription of medication as part of a medical regime established by Dr. Arnold for the appellant, Shafik Kara. The claims of the other appellants, with the exception of Brother’s Collision & Refinishing, are derivative claims under the Family Law Act.

[3] At the time of the Status Court hearing the action was more than 14 years old. The facts underpinning the claim had occurred from 1997 to 1999, more than 16 years before the hearing.

[4] Rule 48.14 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, provides that if an action is not set down for trial or terminated by other means within two years after the first defence is filed, the registrar shall serve a status hearing notice advising that the action will be dismissed for delay if not set down for trial or otherwise terminated within 90 days. Upon receipt of the notice, a party may request that the registrar arrange a status hearing, as the appellants did here. At that hearing, the onus is on the plaintiff to show cause why the action should not be dismissed for delay. The hearing judge may make an order dismissing the action if he or she is not satisfied the action should proceed.

[5] The appellants commenced their action in February 2000. A year later the action was dismissed against all defendants other than Dr. Arnold. In April 2002 Dr. Arnold served his statement of defence, and in June 2003 he served his affidavit of documents.

[6] The action proceeded at a somewhat leisurely pace on the part of both camps – it “meandered”, as the hearing judge put it. Although the appellants delivered a draft affidavit of documents in April 2004, they did not deliver a sworn version until August 2006. Dr. Arnold was slow in providing a transcribed version of his notes, but finally did so in June 2006. In 2007 a potential witness, one of Mr. Kara’s treating physicians, died.

[7] In the meantime, discoveries of Mr. Kara were scheduled and re-scheduled, adjourned on consent but most often at the appellants’ request (sometimes on neutral grounds such as illness or counsel’s conflicting engagements). They finally commenced in December 2006 and were completed in December 2010. The appellants have taken no steps to examine Dr. Arnold for discovery and apparently – somewhat surprisingly – do not intend to do so. The last contact received by Dr. Arnold’s counsel from the appellant’s counsel prior to the status hearing was in December 2010. The appellants say they spent those more than three years obtaining experts’ reports, but they took no steps to set the action down for trial between the receipt of the status hearing notice and the hearing.

Analysis

[8] The decision of a judge presiding at a status hearing under rule 48.14 is discretionary and is entitled to considerable deference. The test is two-fold and conjunctive: the plaintiff has the onus of demonstrating both that there was an acceptable explanation for the delay and that, if the action were allowed to proceed, the defendant would suffer no non-compensable prejudice: see Khan v. Sun Life Assurance Co. of Canada, 2011 ONCA 650, 1 C.C.L.I. (5th) 183, at para. 1; 1196158 Ontario Inc. v. 6274013 Canada Ltd., 2012 ONCA 544, 112 O.R. (3d) 67, at para. 32; Faris v. Eftimovski, 2013 ONCA 360, 363 D.L.R. (4th) 111, at para. 32. The hearing judge applied that test and determined that the appellants had not provided an acceptable explanation for the delay in proceeding with the action.

[9] Dismissals for delay involve a careful balance between two competing values. 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.

[10] The courts do not take a rigid or “purely formalistic and mechanical” approach to the application of timelines in the Rules “that would penalize the parties for technical non-compliance and frustrate the fundamental goal of resolving disputes on their merits”: 1196158 Ontario Inc. v. 6274013 Canada Ltd., at para. 19. That said, rule 48.14 was designed to have some teeth, in my view. As Sharpe J.A. noted, in Marché d’Alimentation Denis Thériault Ltée v. Giant Tiger Stores Ltd., 2007 ONCA 695, 87 O.R. (3d) 660, at para. 23:

Rule 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. Before the promulgation of rule 48.14, parties had total control over when cases were placed on the trial list. Rule 48.14 “establishes a procedure which gives the court a degree of control over the speed at which litigation proceeds to a conclusion. . . . In essence the rule provides for a very limited form of case management.” Garry D. Watson & Craig Perkins, Holmested and Watson: Ontario Civil Procedure, vol. 4 supplement (Toronto: Carswell, 1984) [at] 48§15. The case management regime, for which rule 48.14 was a precursor, was introduced in part to reduce “unnecessary cost and delay in civil litigation”: rule 77.02.

[11] Later, in 1196158 Ontario Inc. v. 6274013 Canada Ltd., at paras. 39, 41 and 42, Sharpe J.A. reinforced the importance of the rule for purpose of promoting timely justice. He said:

[The] 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 power to combat it”: 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, 20007 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.

The civil justice regime should deliver timely justice to both plaintiffs and defendants. … 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.

If flexibility is permitted to descend into toleration of laxness, fairness itself will be frustrated. … [E]ven 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.

[12] The appellants argue that the hearing judge erred by failing to apply the “contextual” approach enunciated by Goudge J.A. in Scaini v. Prochnicki, 2007 ONCA 63, 85 O.R. (3d) 179, at para. 23, and referenced by Sharpe J.A. in Marché d’Alimentation, at para. 20. They say he did not consider and weigh all relevant factors to determine the order that is just in the circumstances of the particular case, as called for by that approach. I disagree.

[13] In my view, little is to be gained by debating whether there is a bright line between the “contextual approach” and the approach enunciated in later authorities such as Faris and 1196158 Ontario Inc. v. 6274013 Canada Ltd. It seems to be evident that, in considering the reasonableness of any explanation for the delay in question, a status hearing judge will almost invariably engage in a weighing of all relevant factors in order to reach a just result.

[14] Here, the judge at the status hearing considered all of the pertinent factors relevant to a contextual approach (as in Scaini) and the approach taken to rule 48.14 dismissals in later cases (1196158 Ontario Inc. and Faris). I do not see these authorities as inconsistent. While I would not characterize the latter two authorities as representing “a fundamental change” in this Court’s approach to delay in the processing of civil cases, as the hearing judge did – the courts have been addressing the need for timely compliance with the rules in this context for many years – I agree that they underline the need for timely compliance, as outlined in the passage from 1196158 Ontario Inc. cited above.

[15] The hearing judge considered the inordinate length of the delay, the explanations offered by the appellants for that delay, the contribution of the respondent to the delay, the appellants’ delay in obtaining expert reports (and the lack of explanation for that delay), and the issue of prejudice. He properly took the date of delivery of the statement of defence as a starting point for the delay that required an explanation. He concluded that the appellants had failed to provide a satisfactory or reasonable explanation for a delay of almost 11 years (from delivery of Dr. Arnold’s statement of defence to the date of the status hearing).

[16] This finding was open to him on the record, and I see no basis for interfering with it.

[17] The appellants also argue that the trial judge raised the bar too high when he stated that “the longer the delay, the more cogent the explanation must be.” I see this as simply a common sense observation.

[18] In addition, the appellants say that the hearing judge failed to take into account the time and expense the parties have devoted to the case and the fact that it is ready for trial. While he did not say specifically that he was dealing with those factors, I am satisfied that he was alive to them. He analysed the history of the discovery process and the process of documentary production as well as the appellants’ submissions regarding the preparation of expert reports. It is self-evident that these steps involved considerable time and expense. In any event, it is debatable whether the action is, indeed, ready for trial. If that were so, one would have expected the appellants to have taken steps to list the action for trial in the period of almost a year that elapsed between the receipt of the status hearing notice and the hearing itself.

[19] The appeal is accordingly dismissed. The respondent is entitled to his costs of the appeal, fixed in the amount of $10,000, all inclusive, in accordance with the agreement of counsel.

Released: “R.A.B.” December 5, 2014

“R.A. Blair J.A.”

“I agree S.E. Pepall J.A.”

“I agree P. Lauwers J.A.”