Court of Appeal for Ontario

Date: 2018-06-08 Docket: C64557

Panel: MacPherson, LaForme and Roberts JJ.A.

Between

Colleen Farmer Plaintiff (Appellant)

and

145 King Street West and 2748355 Canada Inc. and John MacPherson Defendants (Respondents)

and

Paragon Protection Ltd. carrying on business as Paragon Security Third Party (Respondent)

Counsel

Antal Bakaity, for the appellant

Thomas Durcan, for the respondents, 145 King Street West and 2748355 Canada Inc.

Jennifer A. Reid, for the respondent, John MacPherson

Heard: June 6, 2018

On appeal from: the order of Justice Jane E. Ferguson of the Superior Court of Justice, dated October 12, 2017.

Reasons for Decision

[1] The appellant, Colleen Farmer, appeals from the order of Ferguson J. of the Superior Court of Justice dismissing her action against the respondents, 145 King Street West ("145"), 2748355 Canada Inc. ("274") and John MacPherson.

[2] Since its inception in 2011, the case has been a combined action arising out of two separate events in 2009 – an alleged slip and fall accident on the premises of 145 and a motor vehicle accident involving MacPherson.

[3] The action has had a protracted history that at one time led to the appellant's former counsel notifying Law Pro. After various procedural issues over many years, Master Brott issued an order on October 9, 2015 that, inter alia, imposed a timetable on the parties. The timetable provided:

• Pleadings close by October 30, 2015;
• Examinations for discovery be completed by May 27, 2016;
• Answers to undertakings be completed by August 26, 2016;
• Motions re undertakings and refusals be completed by October 28, 2016;
• Mediation be completed by December 30, 2016; and
• The actions be set down for trial by October 19, 2016.

[4] There was non-compliance with the timetable. In November 2016, the respondents decided to bring a motion to dismiss the action for delay. In December 2016, the appellant initiated a motion to amend the timetable. The motions were heard together on October 4, 2017.

[5] The motion judge addressed the respondents' delay motion. She said:

[26] No discoveries have taken place, despite a timetable requiring them to be completed by May 27, 2016.

[27] No mediation has taken place, despite a timetable requiring it to be completed by December 30, 2016.

[28] The action has not been set down for trial despite the fact that pleadings closed on October 22, 2015, and the plaintiff was required to set it down by October 19, 2016 in accordance with the court order.

[6] The motion judge then considered the appellant's explanation for the delay. She said:

[32] A key factor is whether the plaintiff has provided a reasonable and sufficient explanation of the litigation delay. The plaintiff has provided no explanation. She relies on two deficient affidavits from a law clerk. The causes of action are both from 2009, roughly eight years ago.

[34] The plaintiff has not provided any evidence that her actions were inadvertent in not following the agreed upon timetable which was agreed upon to avoid a show cause hearing ordered by Master Brott. Her lawyer at the hearing of this motion said there had been inadvertence, but provided no real and plausible explanation.

[35] In this case the plaintiff has moved to re-work the entire timetable. She has missed all steps. She has not moved promptly.

[39] In sum, the plaintiff has adduced insufficient evidence to rebut the presumption of prejudice. There is a substantial risk that there cannot be a fair trial.

[40] The length of delay both pre and post the timetable order is inordinate. The defendants' motion to dismiss the action for delay is granted. [Emphasis in original.]

[7] The appellant appeals the motion judge's analysis and disposition on two grounds.

[8] First, the appellant contends that the motion judge erred by failing to address first her motion to dispense with mediation.

[9] We disagree. It is not clear from the record that the appellant ever made such a motion. In any event, even if it were made and were before the court, the motion judge was entitled to focus on the respondents' broader motion which also involved consideration of the mediation step in the litigation.

[10] Second, the appellant submits that the motion judge erred by reviewing the entirety of the case as opposed to examining the narrow circumstances of the events subsequent to the imposition of the timetable.

[11] We do not accept the submission. The motion judge was obliged to describe the entire background of the case to put the parties' motions into their proper context. However, she clearly focussed on the imposition of the timetable in 2015. Indeed, she described it as a "lifeline" that the appellant had failed to grasp.

[12] It was open to the motion judge on this record to conclude that the appellant's delay was inordinate and inexcusable and that she failed to rebut the presumption of prejudice to the respondents. This gave rise to a substantial risk that a fair trial of the issues in litigation would not be possible because of the delay: see Langenecker v. Sauvé, 2011 ONCA 903, at paras. 6-7. The motion judge's findings are entitled to deference. We see no error that would permit appellate intervention.

[13] The appeal is dismissed. The respondents are entitled to their costs of the appeal fixed at $7,400 for 145 and 274 and $2,500 for MacPherson, inclusive of disbursements and HST.

"J.C. MacPherson J.A."

"H.S. LaForme J.A."

"L.B. Roberts J.A."