Court of Appeal for Ontario

Date: 2017-05-19 Docket: C62836

Judges: Lauwers, Hourigan and Benotto JJ.A.

Between

Paul Temelini Plaintiff (Appellant)

and

Canada Permanent Trust Company, Canada Trust Company and Robert Thorn Defendants (Respondents)

Counsel

Howard Walch, for the appellant

Gillian B. Dingle and Aria Laskin, for the respondents

Tim Gleason and Rebecca Glass, for the interveners, Claudio Martini and Shulgan Martini, Marusic LLP

Heard: May 16, 2017

On appeal from: the order of Justice Kevin B. Phillips of the Superior Court of Justice, dated November 29, 2016.

Reasons for Decision

[1] This is an appeal from the order of the motion judge dismissing this action for delay.

[2] In 1984, the appellant, Paul Temelini, commenced an action against the RCMP and other defendants for, among other things, malicious prosecution resulting from fraud charges, for which he was ultimately acquitted (the "RCMP Action").

[3] In the RCMP Action, documentation was produced by the RCMP that led Mr. Temelini to believe that he had a cause of action against the respondents. Specifically, Mr. Temelini alleges that the respondent, Robert Thorn, an employee of the respondent Canada Permanent Trust Company, provided confidential financial information about him and his businesses to the RCMP during the course of the RCMP's criminal investigation. Mr. Temelini commenced this action against Canada Permanent Trust Company, a successor company, and Mr. Thorn (the "Canada Permanent Action") in 2004, seeking damages for the alleged wrongful disclosure.

[4] By 2016, the Canada Permanent Action had not progressed beyond the pleading stage. Mr. Temelini had not delivered an affidavit of documents, no discoveries had taken place, and no production had been made. The respondents brought a motion to dismiss for delay.

[5] In granting the respondents' motion, the motion judge found that the lengthy delay in this case was inexcusable and was attributable to Mr. Temelini's decision to prioritize the RCMP Action over the Canada Permanent Action. He concluded that while the actions were subject to a common timetable and joint case management, the appellant consigned the Canada Permanent Action to "dormancy" while the RCMP Action proceeded to trial. The motion judge also found that the death of the key witness for the RCMP constituted prejudice to the respondents and that a fair trial was no longer possible.

[6] On appeal, Mr. Temelini submits that the motion judge erred in not considering all of the relevant circumstances in determining whether there was a reasonable explanation for the delay. Specifically, he asserts that the motion judge erred in failing to take into account the status of the RCMP Action and the deliberate deceit perpetrated by his second counsel regarding the status of the Canada Permanent Action. Mr. Temelini also submits that the motion judge erred when he found that he had prioritized the RCMP Action.

[7] The interveners, Claudio Martini and Shulgan, Martini, Marusic LLP, were Mr. Temelini's lawyers in both the RCMP Action and the Canada Permanent Action between 2011 and 2015. They deny that Mr. Martini ever mislead Mr. Temelini regarding the status of the Canada Permanent Action. The interveners support Mr. Temelini's position on this appeal that the motion judge erred in dismissing the Canada Permanent Action.

[8] We are not persuaded that there is any basis for appellate interference with the motion judge's order.

[9] The motion judge carefully reviewed the circumstances surrounding the failure of Mr. Temelini to advance the Canada Permanent Action. He specifically considered the impact of an order made in 2008 by Master Beaudoin that the two actions be case managed together and subject to a common timetable. He highlighted Mr. Temelini's failure to comply with his court-ordered production obligations, stating:

How two actions could adhere to a common timetable when a unilateral decision is made to disclose documents with respect to one but not the other is beyond me. I find that the explanation proffered is insufficient to justify the delay caused. The delay was caused by a decision to prioritize one action over the other. In my view, that decision is incompatible with the clear intention of the order of Beaudoin J., back in 2008. As such, it is inexcusable.

[10] The motion judge's conclusion was amply supported by the evidence. The incontrovertible fact is that, while the RCMP Action proceeded to trial, the Canada Permanent Action never advanced beyond the pleading stage after 12 years. We accept that the RCMP Action was complex and time-consuming, but that does not excuse Mr. Temelini's failure to take any steps to advance the Canada Permanent Action.

[11] In finding that the delay was inexcusable, the motion judge also considered and rejected Mr. Temelini's argument that the delay was attributable to the conduct of his second counsel in the Canada Permanent Action, Mr. Martini. The motion judge recognized the disputed evidence regarding Mr. Martini's role in the delay, but he reiterated his conclusion that the appellant made a decision "to prioritize the RCMP action over that as against Canada Permanent" and found that "the time scope of [Mr. Temelini's] non-disclosure to Canada Permanent is so broad that it cannot be explained away by the narrow involvement of Mr. Martini." The motion judge held that any production failures that took place during Mr. Temelini's retainer of Mr. Martini were "typical" of Mr. Temelini's approach to the Canada Permanent Action throughout its duration, "not just the discrete part handled by Mr. Martini."

[12] We see no error in that analysis. The motion judge was aware of the allegation that Mr. Martini deliberately mislead Mr. Temelini by telling him that production had been made in the Canada Permanent Action. However, he was entitled to discount that evidence given that production had not been made prior to Mr. Martini's retainer or after his withdrawal from the case.

[13] For these reasons, the appeal is dismissed. The respondents are entitled to their costs of the appeal in the agreed upon all-inclusive sum of $9,000, payable by Mr. Temelini. There shall be no costs payable by the interveners.

"P. Lauwers J.A."

"C.W. Hourigan J.A."

"M.L. Benotto J.A."