COURT OF APPEAL FOR ONTARIO
CITATION: Jadid v. Toronto Transit Commission, 2016 ONCA 936
DATE: 20161214
DOCKET: C61901
Feldman, Epstein and Miller JJ.A.
BETWEEN
Maimuna Jadid
Plaintiff (Appellant)
and
Toronto Transit Commission and John Doe Driver
Defendants (Respondents)
B. Robin Moodie as agent for Jillian Van Allen, for the appellant
Madeline Ferreira, for the respondents
Heard: September 30, 2016
On appeal from the order of Justice Sean F. Dunphy of the Superior Court of Justice, dated February 17, 2016, with reasons reported at 2016 ONSC 1176.
Miller J.A.:
[1] The appellant was injured as she fell while attempting to board a Toronto Transit Commission bus in March 2006. After settling a statutory accident benefits claim in 2007, the appellant commenced an action against the respondents. The action was beset with missteps: it was dismissed administratively for delay, and after obtaining an order setting aside the dismissal on terms, the appellant failed to take the procedural steps required by that order. The appellant’s subsequent motion to vary those terms, years later, was dismissed and the action stayed. The appellant now appeals from that order. For the reasons that follow, I would dismiss the appeal.
A. Background
[2] The appellant’s action was dismissed for delay by registrar’s order on August 9, 2011. On February 17, 2012, O’Marra J. set aside the dismissal order on terms (the “O’Marra order”). Among the terms was the requirement that the appellant set the action down for trial within 60 days. This required the appellant to complete examinations for discovery and file a trial record within 60 days. The appellant did neither. Neither did the appellant have the O’Marra order issued and entered.
[3] The appellant took no further steps for two years.
[4] Eventually, in May 2014, counsel for the appellant wrote to request the respondent’s affidavit of documents. The respondent replied that it had been provided two years earlier, which it had, and suggested that counsel review his file. By this time, the respondent had assigned new in-house counsel who was not yet aware of the procedural history of the action, and did not know that the O’Marra order had not been taken out.
[5] Thereafter, the appellant sought to schedule an examination for discovery of the representative of the respondent. The respondent initially objected on the basis that it had not completed its examination of the appellant, which took place June 20, 2014. It relented on threat of bringing a motion, and agreed to an examination on September 30, 2015. In the meantime, the respondent sought confirmation that the O’Marra order had been entered, and in February 2015 requested a copy of the entered order. It repeated the demand at the examination on September 30, 2015, and when the appellant could not produce it, the respondent refused to proceed.
[6] With counsel for the appellant now alive to the problem of the un-entered O’Marra order, he retained counsel, who had the order issued and entered. It was then necessary to have the timetable established by that order varied, given that the 60 day period for setting the matter down for trial had long since passed. Accordingly, the appellant brought the motion to vary. It was unopposed.
[7] The motion judge concluded, at para. 91, that the delay in the case was extreme, that there were no non-perfunctory explanations offered, and that “the plaintiff never had a bona fide intention to adhere to the deadline ordered and only intermittent interest in advancing … this case.” He dismissed the motion and imposed a stay of the action.
B. Issues
[8] The appellant appeals on the basis that the motion judge erred in refusing to vary the O’Marra order setting aside the registrar’s dismissal, and in staying the action. More specifically, the motion judge is said to have erred by:
Misapprehending the governing legal principles;
Finding that the respondent suffered actual prejudice as a result of the delay; and
Finding that the litigation and motion delay were not explained.
C. Analysis
(1) The legal principles
[9] The motion judge’s analysis began with the well-established criteria from Reid v. Dow Corning Corp. [2001] O.J. No. 2365, 11 C.P.C. (5th) 80 (Ont. Master), at para. 41, rev’d. on other grounds [2002] O.J. No. 3414, 48 C.P.C. (5th) 93 (Ont. Div. Ct) governing appeals from a registrar’s dismissal for delay. The four factors that Reid identifies as relevant to the exercise of discretion are: (1) the explanation of the litigation delay, (2) the inadvertence in missing the deadline; (3) the efforts to move promptly to set aside the dismissal, and (4) the absence of prejudice to the defendant.
[10] The matter before the motion judge is a step removed from an appeal of a registrar’s dismissal. The dismissal of the action had previously been set aside by the O’Marra order, on terms. Those terms had not been satisfied, so the appellant moved to vary the terms which could no longer be met on the original schedule. The motion judge reasoned that this additional factor, a “moving party who has been to the well for relief once and returns a second time” (at para. 53), necessitated the following additional considerations: (1) the length of both the pre- and post-order delay; (2) that no priority should be given to any of the Reid factors over any others; (3) that prejudice to the defendant may be inferred from the passage of time; and (4) the application of a heightened scrutiny of the four Reid factors and the requirement of an explanation for why the first lifeline was ignored.
[11] The appellant argued that the motion judge misapprehended the Reid test (and subsequent case law applying it) by rejecting the proposition that prejudice takes priority over the other factors.
[12] I disagree. It is well established that, as stated by the motion judge, none of the Reid factors have automatic priority over any others. The Reid test provides a structured approach to reconciling the principle that civil actions should be decided on their merits, with the principle that the public interest is served by enforcing procedural rules that promote the timely and efficient resolution of disputes (1196158 Ontario Inc. v. 62474013 Canada Ltd., 2012 ONCA 544, 112 O.R. (3d) 67, at para. 18). It guides the exercise of judicial discretion and thereby reduces the risk of overlooking relevant considerations. It does not set out a formula, prioritize any enumerated factors over any others, or categorically exclude the consideration of other factors not listed: H.B. Fuller Co. v. Rogers, 2015 ONCA 173, 386 D.L.R. (4th) 262, at para. 23; Marche d’Alimentation Denis Theriault Ltée v. Giant Tiger Stores Ltd., 2007 ONCA 695, 87 O.R. (3d) 660, at para 20.
(2) Prejudice
[13] The appellant’s main argument is that the respondent has not suffered prejudice from the delay and the motion judge erred in finding prejudice and in not according decisive weight to this fact.
[14] The motion judge accepted that there was no evidence of actual prejudice caused to the respondent by the delay, and accepted the appellant’s submission that if the respondent had any evidence of actual prejudice, it would have attended the hearing and presented it.
[15] The appellant further submits that the respondent at no time relied on the security of its position. It was only on assigning new in-house counsel, which necessitated a review of the file, that the respondent even became aware of the action’s irregularities. Even at this point, the respondent was prepared to go ahead with discoveries, notwithstanding that the timetable in the O’Marra order had not been complied with and the action had not been restored. It did not take a hard line, refusing to proceed at the examination for discovery, until it was confirmed that the O’Marra order had not been entered.
[16] Nevertheless, as the motion judge noted, there is no requirement that the respondent adduce evidence of actual prejudice. Prejudice can be inferred from the mere passage of time: 1196158 Ontario Inc., supra, at para. 32. The motion judge found that, in the particular circumstances of this case, the ability of the respondent to defend the claim was in fact compromised:
[85] The occurrence report filed by the driver the day after the incident is the only evidence the defendant has and will likely ever have to counter whatever the plaintiff’s version of events when she alleges negligence of the defendant. That report is terse – it is highly doubtful that it will be able reliably to be supplemented with revived actual memory this many years after the fact. The ability of this or any defendant similarly situate to defend a claim this old and of this nature on the issue of liability has certainly been compromised. Once sharp and persuasive evidence may lose a considerable amount of its punch when reduced to an antiseptic reading of an occurrence report ten or more years after the fact without the ability to contribute any meaningful additional details. Such prejudice is progressive and almost impossible to quantify. I conclude from the totality of the evidence before me that the defendant’s right to a fair hearing has been impaired by the passage of time through the inaction of the plaintiff.
[17] The motion judge thus concluded that there was non-compensable prejudice to the defendant. In my view, he made no error in coming to this conclusion.
(3) Delay
[18] There are three relevant periods of delay: (1) the primary delay resulting in the registrar’s dismissal, (2) the secondary delay in failing to take the procedural steps set out in the O’Marra order within the 60 day period, and (3) the almost four year delay in moving to amend the O’Marra order for a new schedule for a second attempt to satisfy the conditions for reinstating the action.
[19] The appellant submits that any delay was neither intentional nor deliberate and has been explained. As such, the appellant submits, the motion judge erred in finding that the delay in this case favoured dismissing the motion.
[20] I disagree. That the delay was not intentional does not absolve the appellant of the responsibility to move the action forward: Wallace, supra, at para. 18. Neither did the motion judge err in concluding that the appellant failed to provide a reasonable explanation for missing the deadline set in the O’Marra order. The appellant’s explanation was that she failed to complete discoveries and set the matter down for trial within the 60 days because of the inadvertence in not having the O’Marra order issued and entered.
[21] But as the motion judge found, this is no explanation at all. There is no causal relationship between not having an order entered and failing to abide by the deadlines set out in that order. The motion judge was entitled to conclude from the appellant’s two year hiatus in taking any steps towards fulfilling the terms of the O’Marra order, that she had no serious intention to pursue the action.
[22] It was for the motion judge to balance the competing principles and weigh the almost four year delay in moving to vary the order in the context of the entire delay and all of the other circumstances that he canvassed. He made no error in his treatment of the appellant’s failures to explain both the delay in missing the 60 day timeline set out in the O’Marra order and the delay in bringing the motion to vary the O’Marra order. The motion judge did not accept as exculpatory the appellant’s argument that the reason she failed to meet the deadline in the O’Marra order was because the O’Marra order had not been taken out.
[23] The conduct of the defendant in litigation may be a relevant consideration, however, in this case very little turns on this factor. Although the respondent did little to move things along, this was the appellant’s responsibility: Wallace v. Crate’s Marine Sales Ltd., 2014 ONCA 671, 245 A.C.W.S. (3d) 72, at para. 18.
[24] The motion judge’s findings were open to him, and he made no error in reasoning to the conclusion that he did. I would therefore dismiss the appeal.
(4) Criticism of counsel
[25] It is necessary to address the motion judge’s criticisms of counsel for the appellant, both motion counsel and counsel who had carriage of the file (neither of whom were counsel on the appeal). Some of these criticisms were excessive and others unfounded.
[26] First, the motion judge’s reasons are seasoned with rhetorical flourishes that cross the line from harmless ornamentation to ridicule. In my view, these are unfair and their absence would have done nothing to blunt the force of the motion judge’s legitimate criticisms.
[27] Second, the motion judge levelled two specific accusations at counsel that need to be corrected.
[28] The first of these is the motion judge’s characterization of the appellant’s trial counsel’s non-compliance with the O’Marra order as tantamount to contempt of court (para. 7). The motion judge aptly chastised counsel for disregarding the O’Marra order and treating it as an inconvenience. It is significant, however, that the O’Marra order did not compel the appellant to do anything. It is a power-conferring order rather than a mandatory order. It sets out conditions that need to be fulfilled in order to restore an action that has been administratively dismissed. No one is or was under any obligation to have the action restored, or to take any steps to that end. So in not taking the lifeline offered by the O’Marra order, counsel was not acting contemptuously, but presumptuously, in expecting that his failure to follow the O’Marra order’s prescriptions would be excused. The fruit of that presumption was the dismissal of the motion and the stay of the action.
[29] The second matter relates to an exchange between the motion judge and motion counsel. Motion counsel, seeking to impress upon the motion judge the absence of prejudice to the respondent, sought to hand up unsworn email correspondence between counsel for the parties. The supposed import of the correspondence, which was put before this court on a fresh evidence motion, was that the respondent’s non-opposition to the motion was a de facto consent. The motion judge rejected this evidence on the basis that it was inadmissible and non-probative.
[30] At the conclusion of argument, motion counsel for the appellant sought and was granted permission to file additional legal argument. This he did later that day. However, he also added the unsworn email correspondence that the motion judge had refused to receive. In my view, this step was misguided. Counsel had not sought permission to file additional material, particularly unsworn evidence that the motion judge had refused to receive. The motion judge’s reaction was severe: “(s)uch a deception – for no other description can be applied – is unworthy of a barrister and member of the Law Society of Upper Canada and displayed disrespect to this court” (at para. 15). The motion judge concluded that the motion counsel had only sought leave to file supplementary written argument so as to surreptitiously file the rejected emails.
[31] Again, however, I take issue with the motion judge’s characterization of counsel’s conduct. The motion judge was entitled to refuse to accept the emails. But it is out of all proportion to label this conduct deceit and to impugn the motion counsel’s professional integrity in doing so.
D. Disposition
[32] I would allow the motion for leave to file fresh evidence. I would dismiss the appeal with costs to the respondent in the amount of $7,500 inclusive of disbursements and HST.
Released: “KF” DEC 14 2016
“B.W. Miller J.A.”
“I agree. K. Feldman J.A.”
“I agree. Gloria Epstein J.A.”