Court of Appeal for Ontario
Date: April 26, 2019 Docket: C66004
Judges: van Rensburg, Benotto and Harvison Young JJ.A.
Between
Allan D'Souza Plaintiff (Appellant)
and
Brunel International Inc. o/a ITECC Consulting, ACS Automation Ltd., 671418 Ontario Inc., and/or 2066597 Ontario Limited, and/or 671420 Ontario Inc., and/or 2066417 Ontario Limited o/a Pivotal Integrated HR Solutions Defendants (Respondents)
Counsel
Sean Dewart, for the appellant
Cynthia Ingram, for the respondents
Heard: March 15, 2019
On appeal from: the order of Justice Silja S. Seppi of the Superior Court of Justice, dated September 21, 2018.
Decision
van Rensburg J.A.:
[1] Background and Procedural History
[1] The appellant's employment with the respondent, Brunel International Inc. o/a ITECC Consulting ("ITECC"), was terminated in September 2003. In January 2004, ITECC's business was acquired by the respondent Pivotal Integrated HR Solutions ("Pivotal"). In 2009, just within the then applicable limitation period, the appellant commenced an action claiming damages for wrongful dismissal.[1]
[2] The appellant's function was to secure and administer contracts with various businesses for the placement of personnel in the information technology field. He claims that, under his employment contract, he was entitled to additional commissions on all placements he "generated", even after the termination of his employment. Among other things, the appellant asserts that, in August 2003, he secured an agreement with Siemens Canada ("Siemens") in respect of which he is entitled to significant commissions.
[3] The appellant's action was set down for trial in 2013, fixed for trial in the May 2015 sittings, adjourned to successive sittings twice at the appellant's request, and then struck from the trial list in 2016 by Daley R.S.J., who gave reasons for his decision. This is an appeal of the order of Seppi J., dated September 21, 2018, refusing to restore the action to the trial list.
[2] Standard of Review
[4] A decision on a motion under r. 48.11 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, is discretionary and entitled to deference. It may therefore only be set aside on appeal if made on an erroneous legal principle or if the decision is infected by a palpable and overriding error of fact: Carioca's Import & Export Inc. v. Canadian Pacific Railway Limited, 2015 ONCA 592, 128 O.R. (3d) 143, at para. 4.
[5] The appellant acknowledges that the motion judge articulated and then sought to apply the correct test in determining whether to restore his action to the trial list under r. 48.11. In particular, she considered whether the appellant had provided an acceptable explanation for the delay and whether he had demonstrated an absence of non-compensable prejudice to the respondents resulting from the delay: Nissar v. Toronto Transit Commission, 2013 ONCA 361, 115 O.R. (3d) 713, at para. 31; Carioca's, at para. 44. The appellant contends, however, that the motion judge made three reversible errors.
[3] First Ground of Appeal: Treatment of Delay
[6] First, the appellant says that the motion judge erred in her treatment of delay. The motion judge took into consideration the appellant's earlier delays in prosecuting the action, which he says were irrelevant, and she failed to consider his efforts to move the action along. Unlike other cases where a plaintiff has done little to move ahead with a dormant action, he was actively taking steps, although some of the steps were admittedly ineffective in moving the action forward.
[7] I do not accept this submission.
[8] In a motion to restore an action to the trial list, where the effect of refusing the order is to bring the action to an end, the court must determine whether a reasonable explanation has been provided for the relevant period of delay and whether the defendant will suffer non-compensable prejudice if the action is restored to the trial list. Where delay has been addressed in a prior court order, or consented to, it is any subsequent delay that requires explanation: Stokker v. Storoschuk, 2018 ONCA 2, 140 O.R. (3d) 473, at para. 5. And while the court should not mechanically review each step in an action and require a plaintiff to explain every period of delay, the overall delay of the plaintiff in prosecuting the action is a factor that can inform the court's assessment of whether an acceptable explanation has been provided by the plaintiff and whether the defendant will suffer non-compensable prejudice if the action is restored to the trial list: Carioca's, at para. 62; Stokker, at para. 14.
[9] Here, the relevant period of delay was in relation to the appellant's efforts to obtain production of documents, especially those in the hands of the third party, Siemens. The appellant delayed in pursuing the documents that his counsel at the time (not Mr. Dewart) represented were important to his claim. This led to two earlier adjournments of the trial. Daley R.S.J. struck the action from the trial list because the appellant brought a motion during the second week of the May 2016 trial sittings respecting Pivotal's (and not Siemens') business records, and seeking to adjourn the trial. Daley R.S.J. stated that the fact that the action was not ready for trial was entirely the fault of the appellant, who had not "diligently pursued whatever production and disclosure he claims is outstanding" and had "moved now without any explanation for the delay in doing so."
[10] Although the motion judge provided some background indicating that the appellant had delayed for almost six years in commencing his action and in its prosecution, her focus was on the appellant's delay in obtaining the required documents.
[11] Paragraphs 6 through 10 of the motion judge's reasons set out the relevant chronology respecting the appellant's failure to move diligently to pursue the documents his counsel claimed were needed to proceed to trial, until the point at which the action was struck from the trial list. In particular:
When he set down his action for trial in 2013, the appellant certified that there were no outstanding or contemplated motions or discoveries.
At the pretrial conference in 2014, the appellant advised of his intention to bring a motion seeking examination of a Siemens representative (an intention that had been communicated in March 2013, but not pursued). The pretrial judge set a timetable for the motion, and the action was placed on the list for the May 2015 trial sittings. No such motion was brought.
In April 2015, the appellant's counsel wrote to say that the appellant was not ready for trial and to request further documents (in particular in relation to placements with Siemens). The trial of the action was adjourned on consent to the January 2016 sittings.
In December 2015, the appellant sought another adjournment, stating in an affidavit that he would be bringing a motion for the examination of a representative of Siemens, and that the trial could then proceed. The respondents consented, on the condition that the appellant would seek no further adjournment of the trial. The trial was adjourned to the May 2016 sittings. (In the interim, the respondents' representative was re-examined for discovery.)
Again, no r. 30.10 motion was brought. When, two weeks into the May 2016 sittings, the appellant moved for additional records and information from Pivotal, the action was struck from the trial list.
[12] The motion judge then considered what had transpired in relation to the documents after the action had been struck from the trial list and before the motion came before her in September 2018. In this regard, she noted that, although Daley R.S.J. had made clear in May 2016 what needed to be done, the appellant had moved to restore the action to the trial list in July 2017 without having brought his third party records motion. The motion was dismissed because the appellant was still not ready for trial.
[13] The motion judge noted that, after the r. 30.10 motion was finally brought (in August 2017), the appellant received a 32-page bundle of computerized spreadsheets from Siemens, which used codes and, on their face, did not provide evidence that the transactions listed related to Pivotal or the appellant. These documents were provided to the respondents' counsel in October 2017. In a letter dated May 4, 2018, the appellant's counsel provided a document prepared by a chartered accountant, suggesting that the documents showed unpaid commissions of $2,750,000 owing to the appellant unless Pivotal could prove its actual costs for placement. (I note that the May 4 letter also requested further documentary productions from Pivotal, including copies of its financial statements and corporate tax returns from 2004 to 2010.)
[14] Ultimately, the motion judge concluded that there was no reasonable explanation for the appellant's delay in obtaining the records in question, that the appellant was still not ready for trial and that the delay had occasioned prejudice to the respondents in their defence of the action. In particular, the motion judge concluded that the respondents' ability to fully and fairly respond to the appellant's claims had been severely compromised by the delays: documents that might have originally been available from Siemens to clarify what was produced, and evidence that may have been available early on for the respondents to answer the claims, were no longer available.
[15] I see no error in the motion judge's treatment of the relevant period of delay. While the motion judge referred to the appellant's delay in commencing his action and then pursuing the action (until a timetable was set by the court at a status hearing), the focus of her analysis was on the appellant's delay in pursuing documents in the hands of a third party, Siemens, that were relevant to his claim for commissions. It was this period of delay that was not explained adequately, or at all, by the appellant.
[4] Second Ground of Appeal: Respondents' Contribution to Delay
[16] The appellant's second, and related, argument on appeal is that he was unfairly blamed for all of the delay that occurred. Here, according to the appellant, the motion judge ignored the respondents' contribution to the delay, as well as court delay in the scheduling of his motion to restore the action to the trial list, which were factors beyond his control. Although not stated as such, this is an argument that goes to whether the appellant has provided a reasonable explanation for the relevant delay.
[17] The appellant contends that the respondents contributed to the delay because they had notice of the particulars of the appellant's claims and the need to preserve documents as early as September 25, 2003, when the appellant's counsel sent his demand letter, and because, on discovery in November 2012, the respondents neglected or refused to produce Pivotal records that would have supported his claims.
[18] I disagree. The respondents' general obligation to secure and to produce relevant documents while litigation is outstanding does not explain or excuse the appellant's continuous delay over the course of the action in pursuing documents that his counsel considered necessary to prove his claim. Throughout the proceedings, the respondents maintained that they had no knowledge of the agreement alleged to have been entered into by the appellant with Siemens, and that they had no documents relating to placements generated by the appellant at Siemens after January 1, 2004.
[19] The appellant commenced and then withdrew a motion for refusals in 2013, when the respondents' representative stated by affidavit, among other things, that "the Defendants have no listings, other than the documents produced, of employees and/or contractors of ITECC that may have been placed with Siemens from January 1, 2004 onwards." The appellant decided in 2015 to pursue the issue again, arguing that he needed explicit confirmation that Pivotal had no records relevant to the alleged unpaid commissions. By November 2015, he had re-examined the respondents' representative and received such confirmation. The appellant's counsel admits that the respondents did nothing after November 2015 to contribute to the relevant delay – that is, in respect of his pursuit of documents to support his claim for commissions as a result of placements with Siemens – and I see nothing in the period leading up to November 2015 to suggest that the respondents were preventing the appellant from pursuing the documents he required or otherwise impeding the progress of the action.
[20] The appellant was aware of the need to seek production of documents from Siemens from at least the examination for discovery of the respondents' representative in November 2012, when they denied knowledge of the agreement the appellant claimed to have secured with Siemens, and suggested that he seek production of any such agreement directly from Siemens. At the pretrial conference in November 2014, it was ordered on consent that the appellant bring his r. 30.10 motion by December 20, 2014, with the motion to be heard by January 31, 2015. Later, the trial was adjourned from the January 2016 sittings so that he could bring such a motion. When the action was struck from the trial list in May 2016, he still had not brought his motion.
[21] Contrary to the appellant's submission, there was no contribution by the respondents to the appellant's delay in pursuing the documents that would support his claim. Nor did the respondents acquiesce in the delay. The extensive record in this case, which includes affidavits filed by the respondents' representative at various stages of the litigation, makes it clear that the appellant's delay in pursuing documents and proceeding to trial was a live issue and of concern to the respondents from at least March 2013.
[22] The appellant also asserts that the delay between December 2016 and July 2017 was outside his control because it was unclear whether Daley R.S.J. was seized with the motion to restore the action to the trial list. Whatever the reason for the delay in getting a date for the r. 48.11 motion, ultimately it was dismissed because it was premature. The appellant moved to restore the action to the trial list without having brought the promised r. 30.10 motion. Again, what was relevant was the appellant's ongoing delay in pursuing documents his counsel repeatedly had insisted were necessary for the trial of the action.
[23] I see no error in the motion judge's conclusion that the appellant's delay in pursuing the relevant documents, which was the relevant delay that the court needed to consider, was inexcusable and unexplained.
[5] Third Ground of Appeal: Readiness for Trial
[24] Finally, the appellant says that the motion judge made palpable and overriding errors, which amounted to an error in principle, when she concluded that the action was still not ready for trial. In particular, she was inappropriately dismissive of the documents provided by Siemens, and she erred in suggesting that an accountant was required to interpret the codes set out in the Siemens spreadsheet. According to the appellant's appeal counsel, a Siemens representative could have attended at trial as a witness to explain the documents, and the matter could have been set for trial, if not right away, then for the next trial sittings.
[25] I disagree. The motion judge's conclusions about the Siemens documents and that the appellant still was not ready for trial were fully supported by the evidence before her. The appellant's motion was to restore the action to the trial list for the Brampton trial sittings in January 2019. His factum in support of the motion, however, sought to restore the action to the trial list for the following sittings, to commence in May 2019. It was obvious that additional work was anticipated before the matter would be ready for trial.
[26] The appellant may well be correct that a Siemens representative could have attended at trial to explain the spreadsheets that were produced, and that an expert accountant was not required for this purpose. However, the appellant's counsel suggested to the motion judge that, although he had taken no steps to do so in the ten months since he had received the Siemens documents, he still might hire a forensic accountant to analyze the records. Furthermore, in his letter in May 2018, the appellant's counsel requested more documents from Pivotal. The real problem with the late-breaking documents is that the respondents were prejudiced in their defence of the action. The evidence was that documents such as invoices that might explain and support the Siemens spreadsheets, and assist in determining what, if any, portions of the invoices and payments from Siemens to the respondents were related to placements generated by the appellant, were not produced and were likely no longer available.
[6] Conclusion
[27] For these reasons, I am not persuaded that the motion judge erred in any material way in her refusal to restore the appellant's action to the trial list. Accordingly, I would dismiss the appeal, with costs to the respondents in the agreed amount of $10,000, inclusive of disbursements and HST.
Released: April 26, 2019
"KMvR" K. van Rensburg J.A.
"I agree. M.L. Benotto J.A."
"I agree. A. Harvison Young J.A."
Footnote
[1] At the time, the applicable limitation period was six years under the former Limitations Act, R.S.O. 1990, c. L.15.
