CITATION: R.A. v. R.D.S. 2012 ONSC 3907
COURT FILE NO.: 598/11
DATE: July 4, 2012
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
R.A.
Helder Travassos for the Plaintiff
Plaintiff/Appellant
- and -
R.D.S. and N.M.
Defendants/Respondents
Brian Delorenzi for the Defendants
HEARD: June 19, 2011 at Toronto
PERELL J.
REASONS FOR DECISION
A. INTRODUCTION
[1] The Plaintiff, R.A., appeals the Order of Master Glustein, who refused to set aside the administrative dismissal of Ms. R.A.’s action for damages for sexual assault. See R.A.R.D.S. 2011 ONSC 7095 (Master).
[2] Ms. R.A. submits that the Master made an error of law by misconstruing the test to be applied when deciding whether to set aside an administrative dismissal in a sexual assault case.
[3] For the reasons that follow, I disagree. In my opinion, the Master made no error and this appeal should be dismissed.
B. FACTUAL AND PROCEDURAL BACKGROUND
[4] The factual and procedural background to this appeal is as follows.
[5] From 1988 to 1991, when she was 11 to 13 years old, Ms. R.A. lived with her uncle, the defendant R.D.S., who repeatedly sexually assaulted her. He pleaded guilty to criminal charges related to the assaults.
[6] At the time of the assaults, R.D.S. was living with the defendant N.M., whom he later married
[7] On April 13, 2004, when Ms. R.A. was 28 years old, she sued R.D.S. for sexual assault. She also sued Ms. N.M. for negligence, because she was allegedly loco parentis and facilitated or did not prevent the assaults.
[8] Mr. Barry Goldman was Ms. R.A.’s lawyer of record, and within a month of the commencement of the action, Mr. Goldman was advised that, practically speaking, R.D.S. was judgment proof but that there might be an insurance policy providing coverage to Ms. N.M. for her negligence. Mr. Goldman began investigations about the availability of insurance coverage.
[9] On September 17, 2004, R.D.S. delivered his statement of defence in which he admits his misconduct. On January 3, 2005, Ms. N.M. delivered her statement of defence. She denies that she was loco parentis and that she was negligent or facilitated the sexual assaults.
[10] During 2005, it appears that efforts were made to gather documents and to determine whether there was indeed insurance coverage for Ms. N.M., but very little appears to have been done during 2006, until November 2007, when Mr. Goldman received a status notice from the court.
[11] On March 5, 2007, after Mr. Goldman responded to the status notice, Master Glustein made an Order, on consent, prescribing a timetable that provided, among other things that: affidavits of documents must be exchanged by April 30, 2007; a motion should be brought about the availability of insurance by November 30, 2007; and that the action should be set down for trial by February 8, 2008.
[12] Not much appears to have happened during the balance of 2007, and on February 8, 2008, the date the action was supposed to be set down for trial, Mr. Goldman proposed a revised timetable, which Master Glustein ordered on consent. The revised timetable required, among other things, that the motion about insurance coverage be brought by October 31, 2008 and the action be set down for trial by December 31, 2008.
[13] However, once again, little progress followed, with the explanation that Mr. Goldman was unable to obtain instructions during 2008.
[14] On February 19, 2009, Master Glustein heard a motion brought by Ms. R.A. for a further revised timetable that would have seen the action set down for trial by the end of 2009. Master Glustein granted the motion, and in his endorsement, he varied the timetable "as per the attached timetable." Unfortunately, however, the timetable was not attached to the copy of the endorsement sent to Mr. Goldman.
[15] Mr. Goldman’s evidence was that he did not notice that the timetable was not attached to the endorsement. In any event, after the endorsement, Mr. Goldman focused his attention, once again, on determining whether there was insurance coverage; however, still no progress was made in the litigation during the balance of 2009.
[16] On February 23, 2010, the registrar dismissed Ms. R.A.’s action.
[17] Seventeen months then passed.
[18] Then, pursuant to rule 37.14, Ms. R.A. moved to set aside the dismissal of the action by the registrar. Rule 37.14 states:
37.14 (1) A party or other person who, …
(c) is affected by an order of a registrar,
may move to set aside or vary the order, by a notice of motion that is served forthwith after the order comes to the person’s attention and names the first available hearing date that is at least three days after service of the notice of motion.
(2) On a motion under subrule (1), the court may set aside or vary the order on such terms as are just.
Order Made by Registrar
(3) A motion under subrule (1) or any other rule to set aside, vary or amend an order of a registrar may be made to a judge or master, at a place determined in accordance with rule 37.03 (place of hearing of motions).
[19] Master Glustein dismissed the motion.
C. THE MASTER’S RULING
[20] Under rule 37.14 the court has the discretion to set aside or vary the registrar’s order (the administrative dismissal) on such terms as are just or to dismiss the motion to set aside the order: Wellwood v. Ontario (Provincial Police), 2010 ONCA 386, [2010] O.J. No. 2225 at para. 19.
[21] The case law has recognized factors for the court to consider and qualifications or prerequisites to satisfy before the order of a registrar will be varied or set aside: Scaini v. Prochnicki (2007), 2007 ONCA 63, 85 O.R. (3d) 179 (C.A.); Marche D’Alimentation Denis Theriault Ltée v. Giant Tiger Stores Ltd. (2007), 2007 ONCA 695, 87 O.R. (3d) 660 (C.A.); Reid v. Dow Corning Corp., [2001] O.J. No. 2365 (Master), rev’d on other grounds [2002] O.J. No. 3414 (Div. Ct.). Usually, in order to have a dismissal set aside, the plaintiff must demonstrate that: (1) after becoming aware of the dismissal order, he or she moved expeditiously; (2) there is an explanation for the failure to advance the action in a timely way; (3) the failure to respond to the notice indicating that the action was at risk of being dismissed was through inadvertence; and, (4) the defendant will not suffer serious prejudice from having the dismissal order set aside.
[22] The factors, however, are not absolute requirements, and the court will adopt a contextual approach and consider all the relevant factors and balance the interests of the parties in determining whether to set aside the dismissal order. See: Finlay v. Van Paassen, 2010 ONCA 204, [2010] O.J. No. 1097 (C.A.); Wellwood v. Ontario (Provincial Police), supra; Scaini v. Prochnicki, supra; Marche D’Alimentation Denis Theriault Ltée v. Giant Tiger Stores Ltd., supra.
[23] Without enumerating them, Master Glustein found several factors that did not favour setting aside the dismissal order. He found that Ms. R.A. did not adequately explain the litigation delay and that she did not promptly bring the motion to set aside the administrative dismissal. Ms. R.A. does not challenge those findings. Further, Master Glustein found that Mr. Goldman’s failure to set the action down for trial was not inadvertent, because Mr. Goldman should have followed up when he received the endorsement without the attached timetable. Ms. R.A. challenges this finding because there was no evidence that Mr. Goldman had abandoned attention to the action.
[24] There was one factor that favoured setting aside the dismissal. Master Glustein found that the defendants would not suffer serious prejudice from having the dismissal order set aside because their ability to have a fair trial was not impaired. It appears that the only witnesses at the trial would be the parties of the action.
[25] Master Glustein considered, but rejected, Ms. R.A.’s argument that because she was a sexual assault victim this circumstance justified setting aside the administrative dismissal. In paragraphs 9 to 11 and 26-28 of his judgment, he stated:
Further, I reject R.A.'s submissions that a plaintiff and plaintiff's counsel on "family sexual assault" cases (as the term is used by R.A.) should get a "break" on the test applicable to set aside a dismissal order, simply because of the nature of the claim. The Rules and case law provide that a plaintiff has an obligation to move the action forward, and a defendant has a right to litigation conducted in a timely manner, regardless of the nature of the claim.
There may be contextual factors arising from family sexual assault actions that might be relevant to consideration of the Reid factors. If there is evidence that any factors arising from a family sexual assault affect any of the factors under Reid, then that evidence should be considered as part of the context of those factors (e.g. there could be evidence of difficulty for the plaintiff to deal with issues in a timely manner arising from the sexual assault).
However, in the present case, the reasons for the failure to move the action forward, lack of promptness, and inadvertence are entirely unrelated to any issue arising from the family sexual assault. To the contrary, the very limited explanation provided arises from the conduct of R.A. or her counsel, not from the nature of the action. To provide a plaintiff or plaintiff's counsel with a "break" when there is no evidence to support that any delay arose from the nature of the case would be to create a new test for setting aside dismissal orders depending on the nature of the claim, which I do not find supportable under the Rules or case law. …
A defendant sued in a family sexual assault case has the same right to expect timely justice as any other defendant, regardless of whether the individual could be sued at any time or whether a subsequent action could be brought if the action is dismissed by the registrar under the Rules. Once the action has begun, the defendant in a family sexual assault case is facing extremely serious accusations and is entitled to a trial as quickly as possible. To submit that a plaintiff is entitled to a "break" in a family sexual assault case ignores the foundational principle of the Rules requiring expeditious justice.
Consequently, I do not agree that a different test should apply to set aside a dismissal order in a family sexual assault case
On the other hand, certain factors may arise in family sexual assault cases that affect the "latitude" of the court in considering the Reid factors. The context of a family sexual assault may be relevant to the court in considering the Reid factors, if there is evidence to support that position.
[26] Given the plaintiff’s failure to move promptly, the absence of an explanation for the delay in prosecuting the action, and the advertence of the failure to set the action down for trial, Master Glustein declined to exercise his discretion to set aside the dismissal of the action.
D. THE PLAINTIFF/APPELLANT’S ARGUMENT
[27] Ms. R.A.’s argument, which I will describe below, is built, in part, on the proposition that her claim is not statute-barred and on the Master’s finding that the defendants would not be prejudiced by the delay in prosecuting the action to a trial.
[28] It is true that Ms. R.A.’s claim would not appear to be statute-barred. Ms. R.A. was sexually assaulted before January 1, 2004 and under the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, for assaults occurring before January 1, 2004, the transition rule that is set out in section 24(7) of the Act applies; it states:
In the case of a claim based on…(a) sexual assault that the defendant committed, knowingly aided or encouraged…, the following rules apply, even if the former limitation period expired before January 1, 2004: …
(2) if no limitation period under this Act would apply were the claim based on a sexual assault that took place on or after [January 1, 2004], there is no limitation period."
[29] Thus, if no limitation period would apply under the Act based on a sexual assault that took place after January 1, 2004, then no limitation applies to a pre-January 2004 assault. For assaults occurring after January 1, 2004, section 16(1)(h) of the Limitations Act, 2002 states:
There is no limitation period in respect of, …. (h) a proceeding arising from a sexual assault if at the time of the assault one of the parties to it had charge of the person assaulted, was in a position of trust or authority in relation to the person, or was someone on whom he or she was dependant, whether financially or otherwise.";
[30] Thus, it is the case that no limitation period applies to bar Ms. R.A.’s claim because no limitation period would apply were her claim based on a sexual assault after January 1, 2004.
[31] In the circumstances that her claim is not statute-barred and the defendants would not be prejudiced, Ms. R.A. submits that the Master erred by emphasizing the delay that had occurred in prosecuting the action. Ms. R.A. submits that for cases of this special nature, i.e. sexual assault claims against a family member, the court should grant the plaintiff every latitude and only refuse to set aside a dismissal in the worst case, where: (a) the delay has been intentional and contumelious; (b) there has been inordinate and inexcusable delay giving rise to a substantial risk that a fair trial would not be possible; and (c) there would be actual prejudice to the defendant if the action was not dismissed. Since none of these factors are present in the case at bar, Ms. R.A. submits, therefore, that the Master erred in refusing to set aside the administrative dismissal.
E. STANDARD OF APPELLATE REVIEW
[32] On an appeal, the decision of a Master, whether final or interlocutory, will be interfered with only if the Master made an error of law or exercised his or her discretion on the wrong principles or misapprehended the evidence such that there is a palpable and overriding error: Zeitoun v. Economical Insurance Group (2008), 2008 20996 (ON SCDC), 91 OR 3rd 131 (Div. Ct.) at para. 40, affirmed 2009 ONCA 415, 96 OR (3rd) 639 (C.A.).
F. DISCUSSION
[33] The discussion can be relatively brief, because, but for the Master’s alleged error in failing to recognize the special feature of a sexual assault claim without a limitation period, it is not suggested that he erred in the selection or application of the principles that the court applies to determine whether to set aside a registrar’s dismissal of an action. The question then is did he err in not applying the special test posited by Ms. R.A. for cases of this nature.
[34] In answering that question, the first point to note is that the Master cannot be accused of ignoring the nature of Ms. R.A.’s sexual assault claim. The Master’s point rather was that the nature of her claim should be considered in the context of the normal factors employed by the court.
[35] Thus, in paragraph 10 of his Reasons for Decision, he stated that there might be contextual factors arising from family sexual assault actions that might be relevant to the consideration of the normal factors. However, in paragraph 11, he noted that in Ms. R.A.’s case, the failure to move the action forward (i.e. to abide by three timetables) had nothing to do with the factor that hers was a sexual assault case.
[36] Put somewhat differently, the Master saw no reason not to apply the normal principles, simply because the plaintiff was advancing an assault claim that was not subject to any limitation period. The nature of her claim would not be ignored, but the nature of her claim did not give her a free pass on compliance with the Rules of Civil Procedure.
[37] I see no error in the Master’s reasoning or approach, and I am not aware of any case law authority that suggests that the Master’s selection of law and application of it was incorrect.
[38] The Master seemed to appreciate that while the legislature had directed patience with respect to starting the prosecution of family sexual assaults, Ms. R.A.’s claim was now before the court and the access to justice interests of the defendants should not be ignored. I repeat here what the Master stated in paragraph 26 of his Reasons for Decision:
- A defendant sued in a family sexual assault case has the same right to expect timely justice as any other defendant, regardless of whether the individual could be sued at any time or whether a subsequent action could be brought if the action is dismissed by the registrar under the Rules. Once the action has begun, the defendant in a family sexual assault case is facing extremely serious accusations and is entitled to a trial as quickly as possible. To submit that a plaintiff is entitled to a "break" in a family sexual assault case ignores the foundational principle of the Rules requiring expeditious justice.
[39] I understand the Master to be saying that once the action has been commenced, while it would be correct for the court to consider the circumstances of the plaintiff advancing a sexual assault claim as a contextual factor for the exercise of its discretion in setting aside or refusing to set aside an administrative dismissal, it would be wrong for the court to ignore the access to justice interests of the defendant.
[40] I would not go so far as to say that the defendant in a family sexual assault case is entitled to a trial as quickly as possible. It is sufficient to say that the defendant in such a case is normally entitled to expect compliance with the rules of civil procedure.
[41] This is particularly true for Ms. N.M. who has never admitted doing anything wrong, which is not the situation for the convicted R.D.S.. In any event, as a matter of precedent and principle, there is no basis for the submission that when the plaintiff is advancing a sexual assault claim, the court should only refuse to set aside a dismissal in the worst case of non-compliance with the rules.
G. CONCLUSION
[42] For the above reasons, the appeal should be dismissed.
[43] If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with the defendants within 20 days of the Release of these Reasons for Decision followed by Ms. R.A.’s submissions within a further 20 days.
Perell, J.
Released: July 4, 2012
CITATION: R.A. v. R.D.S. 2012 ONSC 3907
COURT FILE NO.: 598/11
DATE: July 4, 2012
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
R.A.
Plaintiff/Appellant
‑ and ‑
R.D.S. and N.M.
Defendants/Respondents
REASONS FOR DECISION
Perell, J.
Released: July 4, 2012.