COURT FILE NO.: 582/02
DATE: 20040311
SUPERIOR COURT OF JUSTICE - ONTARIO
(Divisional Court)
RE: ESTATE OF JOSE FRANCISCO SARABANDO
by its Administrator, ALEXANDRE MARTINS
Plaintiff
(Appellant)
- and -
MANUEL JOAQUIM CERQUEIRA and
MARIA CERQUEIRA
Defendants
(Respondents)
BEFORE: Mr. Justice D. Rutherford
COUNSEL: Frank J.C. Newbould, Q.C. & Aaron A. Blumenfeld, for the appellant
Eric R. Murray, for the respondents
HEARD: March 10, 2004
E N D O R S E M E N T
RUTHERFORD J.:
[1] This is an appeal from Master Linton’s orders on August 27, 2002, dismissing the plaintiff’s action for delay and on April 15 and May 1, 2003, awarding costs totaling $55,918.32 to the defendants.
[2] Mr. Sarabando (“S.”) had made a number of loans to the son of a very good friend, Antonio Cerqueira (“C. Sr.”) and the son, C. Jr. had secured them by giving S. a mortgage on his home in Toronto in the amount of $185,000.
[3] In 1991 S. instructed that the mortgage be discharged for September of that year. C. Jr. and his wife signed a document entitled PROMISSORY NOTE and declared it before a commissioner for taking affidavits, one F. The evidence suggests that F. had a hand in drafting the document.
[4] The document says that the signors “…declare that we owe Jose Sarabando $185,000 as of May 1, 1991” (which was the date the mortgage was discharged) and adds as conditions of payment, “with no interest bearing, and no time bearing”.
[5] After S. died, the document was found with S.’s passport. S. left no will. The administrator of his estate sought payment from the defendants in 1993 and brought an action in May, 1996. Default judgment was signed in August but was set aside without reasons by Wright J. in February, 1997. Apart from having the issue of costs determined by Wright J., little else was done to pursue the action until August, 1998 when the administrator changed counsel and delivered an amended claim. A defence was filed in December, 1998.
[6] There was little or no court action or progress in the action until 2002. In February, 2002, the plaintiff delivered a reply. In March he delivered an affidavit of documents. Then the same month the defendants delivered an affidavit of documents and brought the motion under Rule 24.01.
[7] Master Linton dismissed the action, saying that there was inordinate delay, that it was inexcusable, and that the defendants are likely to be prejudiced by the delay. In my view, the Master’s decision was justified. I take the position that I could substitute my own discretion as to the correct disposition of the matter but am not persuaded to a different disposition.
[8] Granted that there are many cases in which one can find much longer periods of delay that do not lead to a dismissal, but here the delay is, overall, some four years or more and there is really no excuse for it. The more important thing is that during that inexcusable delay, C. Sr. and his wife and F. all died. C. Sr. died of brain cancer in January, 2001. The evidence shows that there was a window of opportunity of a few months in 2000 during which it is possible that his evidence could have been preserved had anyone thought of doing so. For the plaintiff, Mr. Newbould argued that realizing his father was dying and had important evidence to give, C. Jr. should have taken steps to preserve the evidence or warned the plaintiff to do so. The inaction of the plaintiff in pursuing the case and the relatively brief window of opportunity make this a suggestion that becomes compelling only in the light of hindsight. As to the circumstances surrounding the deaths of F. and of C. Sr.’s wife, no argument was heard.
[9] Mr. Newbould also argued that little or no analysis of the relevance and admissibility of the evidence C. Sr., his wife or F. could give at trial had been made. He contended that their evidence would likely be inadmissible as either hearsay or as in contravention of the parole evidence rule.
[10] This is a significant part of the case to deal with in any precise way because it assumes what the unfolding trial would involve and anticipates issues which ultimately require all the evidence in context to be in hand. The evidence of C. Sr. in particular would fill in details of the circumstances in which the mortgage was discharged and what the document declaring the defendants’ debt of $185,000 was prepared for. Mr. Murray argues that since all the financial dealings between S. and C. Jr. were conducted through him as S.’s agent, his evidence would be necessary corroboration of some of C. Jr.’s evidence and he cites section 13 of the Ontario Evidence Act.
[11] Mr. Murray argues that the capacity of the defendants to show, with the supporting independent evidence of C. Sr. and F., and aided to some degree by C. Sr.’s wife, that the indebtedness document signed by the defendants is not a promissory note nor evidence of an enforceable debt and is severely prejudiced by the deaths of those supporting witnesses during the plaintiff’s delay in prosecuting the case.
[12] The Master obviously agreed with that. While there are difficult issues as to the admissibility or limitations on the probative value of the evidence that is now unavailable, I cannot disagree that the defendants are in a substantially prejudiced position as a result of the delay.
[13] Mr. Newbould argued that the responsibility of moving a case along is shared by both the plaintiff and the defendants. In my view, the duty to prosecute a case lies primarily on the plaintiff and while a defendant may, on the facts of a particular case, be fixed with blame or partial blame for any undue delay, in the circumstances of this case, they should not be fixed with any blame.
[14] I am not persuaded that the action should not have been dismissed. The appeal therefore must be dismissed.
[15] If the parties cannot agree on an appropriate disposition of costs, they should exchange and send me brief submissions in writing at the Court House in Ottawa and I will fix what I consider fair in the circumstances.
[16] Order accordingly.
RUTHERFORD J.
DATE: 20040311