Court of Appeal for Ontario

Citation: 2016 ONCA 193 Date: 2016-03-08 Docket: C60167

Before: Pepall, van Rensburg and Roberts JJ.A.

Between:

Roderick Edward McDowell Plaintiff (Appellant)

and

The Corporation of Cavan-Millbrook - North Monaghan, Mary Sutherland (deceased) and Millbrook Public Utilities Commission Defendants (Respondent)

Counsel: Roderick McDowell, in person Raffaele Sparano, for the appellant Christopher Afonso, for the respondent

Heard: February 9, 2016

On appeal from the order of Justice Myrna L. Lack of the Superior Court of Justice, dated February 17, 2015.

ENDORSEMENT

Introduction

[1] In January 2001, the appellant, Roderick Edward McDowell, commenced an action against the respondent, the Corporation of Cavan-Millbrook - North Monaghan (the “Municipality”) and others. He asserted various causes of action including negligence, intentional torts and breach of contract. He claimed that the Municipality prevented him from obtaining approval of a plan of subdivision and limited his ability to sell his property between the years 1988 and 1997.

[2] On February 17, 2015, the action was dismissed for delay under r. 24.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The appellant appeals from that dismissal.

[3] Before the motion judge, the appellant was self-represented. Before this court, counsel argued the appeal on behalf of the appellant.

[4] The appellant submits that the motion judge applied incorrect law, erred in finding that the appellant’s delay was inordinate and inexcusable, and erred in finding a failure to rebut the presumption of prejudice and actual prejudice. He also submits that the motion judge failed to comply with responsibilities owed to self-represented parties such as himself. Lastly he argues that the motion judge erred in failing to address his cross-motion for the production of documents.

[5] For the reasons that follow, we would dismiss the appeal.

[6] The chronology of proceedings may be briefly summarized. Initially, the parties were both represented by counsel. The statement of claim was issued on February 22, 2001 and the statement of defence was served on August 13, 2001. In 2002, the parties exchanged affidavits of documents. The appellant became self-represented in April 2004. He was examined for discovery in July 2004 but the examination was incomplete and was adjourned. The action then lay dormant.

[7] In July 2007, the action was administratively dismissed for delay. On consent of the Municipality, an order setting aside the dismissal was granted in November 2007. The examination for discovery of the appellant continued in October 2008. Thereafter, between November 2008 and September 2010, counsel for the Municipality wrote to the appellant on 14 occasions seeking answers to undertakings given on the appellant’s examination for discovery. The appellant provided answers by September 28, 2010.

[8] In February 2011, the appellant served a further affidavit of documents.

[9] On August 21, 2013, the Municipality served an expert’s report and advised the appellant that it would bring a motion to dismiss the action for delay if the action was not set down for trial. The appellant did not do so.

[10] On November 8, 2013, the Municipality advised the appellant that it was bringing a motion to dismiss for delay. Still the appellant did not set the action down for trial.

[11] The Municipality brought its motion to dismiss together with other requested relief in April 2014, returnable during the sittings commencing May 20, 2014. In April 2014, at the appellant’s request, the motion was adjourned on consent to the sittings commencing November 17, 2014.

[12] The appellant subsequently brought a cross-motion for production of documents which he served on November 17, 2014.

[13] Both motions came on before the motion judge. She adjourned the production motion and indicated that she would address it if the dismissal motion was unsuccessful.

[14] The motion judge granted an order dismissing the action for delay. She noted the passage of 14 years since the action was commenced. She found that the Municipality had neither caused, nor acquiesced in, the delay, which was both inordinate and inexcusable.

[15] The appellant had failed to rebut the presumption of prejudice and the evidence also established actual prejudice. Due to the delay, evidence was unavailable to the Municipality. The composition of the municipal council had changed many times, and officials and employees with knowledge of events were no longer in office. Furthermore, the Municipality’s discovery representative had died. Given the dismissal, the motion judge saw no need to address the production motion.

Analysis

[16] Rule 24.01(1)(c) provides that a defendant not in default may move for dismissal of an action for delay where the plaintiff has failed to set the action down for trial within six months after the close of pleadings.

[17] In submitting that the motion judge erred in her description of the applicable law, the appellant focuses on the motion judge’s statement that the Municipality was under no obligation to move the appellant’s case along to trial. This comment must be read in context. The motion judge concluded that there was no evidence that the Municipality or its counsel was the cause of any delay. While the Municipality would be at liberty to set the action down for trial, it was not obliged to do so. There is no substance to the appellant’s suggestion that the Municipality laid in wait to pounce on the appellant. To the contrary, it had given the appellant numerous warnings of the need to set the action down for trial and his exposure to a motion to dismiss.

[18] The motion judge concluded that there was inordinate and inexcusable delay in the litigation for which the appellant was responsible. She made no palpable or overriding error in this regard. Given the lengthy history of the action, the appellant’s inactivity, and the absence of any credible excuse for the delay, the motion judge’s finding was reasonable and supported by the evidence.

[19] Once inordinate and inexcusable delay is found, there is a presumption of prejudice. See Armstrong v. McCall (2006), 2006 CanLII 17248 (ON CA), 213 O.A.C. 229 (C.A.), at para. 11, citing Woodheath Developments Ltd. v. Goldman (2003), 2003 CanLII 46735 (ON SCDC), 66 O.R. (3d) 731 (Div. Ct.), leave to appeal refused (2004), 44 C.P.C. (5th) 101 (Ont. C.A.). The appellant did not lead any convincing evidence to rebut this presumption and as such, there was no need for any finding of actual prejudice, even though the motion judge concluded that actual prejudice existed.

[20] The appellant argues that being self-represented, he was unaware of certain procedural steps and in particular, that he or the Municipality could have set the action down for trial in the absence of document production from the Municipality and in the absence of a resolution of his lawsuit against his former counsel.

[21] The court system often presents considerable challenges to people who are unrepresented by counsel. Participants in the justice system should not be denied relief on the basis of a minor deficiency. That said, a participant, including a self-represented party, has a responsibility to familiarize him or herself with the procedures relevant to the case. Here the delay was indeed inordinate and prejudicial, and resulted in a substantial risk that a fair trial would not be possible. The appellant’s conduct cannot be excused simply because he was self-represented. This would work an injustice to the respondent and to other participants in the system.

[22] Lastly, the motion judge did not err in adjourning the production motion. The appellant’s motion was served four days before the hearing and would be moot if the dismissal for delay motion was granted. The adjournment was a discretionary decision and uninfected by any error.

Disposition

[23] The appeal is dismissed. As agreed, the appellant is to pay the respondent’s costs on a partial indemnity scale fixed in the amount of $3,300, inclusive of disbursements and HST.

“S.E. Pepall J.A.”

“K. van Rensburg J.A.”

“L.B. Roberts J.A.”