Levant v. Gilbert Studios Limited, 2021 ONSC 1022

CITATION: Levant v. Gilbert Studios Limited, 2021 ONSC 1022

DIVISIONAL COURT FILE NO.: 143/20 and 144/20

DATE: 20210208

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

BETWEEN:

DARREN LEVANT

Plaintiff (Appellant)

– and –

GILBERT STUDIOS LIMITED, NINA GILBERT, also known as NINA LEVANT, Executrix for the Estate of Albert Gilbert and Nina Gilbert, also known as Nina Levant, the Executrix of the Estate of GAIL GILBERT also known as GAIL GOLDIE GILBERT

Defendants (Respondents)

COUNSEL:

Allison Farley, for the Plaintiff (Appellant)

Maxwell Reedijk, for the Defendants (Respondents)

HEARD at Toronto (by video conference): February 8, 2021

ORAL REASONS FOR JUDGMENT

Penny J. (Orally)

[1] There are two appeals by the plaintiff from Orders of Master Graham. Each appeal involves a separate action by the plaintiff against his grandfather, Albert Gilbert. These actions were both dismissed for delay by the Orders of the Master which are now appealed from.

[2] The first action was commenced in 2014. It essentially involves allegations that a Caledon property was bought by Grandfather as a gift for the plaintiff and was later fraudulently transferred back to Grandfather and sold without the plaintiff’s knowledge or consent.

[3] The second action was commenced in 2016. It involves allegations that Grandfather promised to transfer another property, which housed Grandfather’s photography business, and Grandfather’s photography business itself, to the plaintiff when Grandfather retired. Both actions essentially involve oral promises and representations.

[4] Discovery in the 2014 action were completed later in 2014. Discovery in the 2016 action was completed later in 2016. Grandfather died in January 2019. He was 96 years of age.

[5] Finally, it is common ground that the standard of review on both appeals is that typically applied to appeals: that is, correctness on extricable questions of law, and palpable and overriding errors on questions of fact and mixed law and fact.

[6] The first motion came before the Master as a status hearing under Rule 48.14 for an extension of time to set the matter down for trial. There had been no administrative dismissal. The Master’s decision, declining to extend time thereby effectively dismissed the action for delay, was released on February 27, 2020.

[7] There is no dispute that the test under Rule 48.14 was that the plaintiff had to demonstrate that: a) there was an acceptable explanation for the delay in prosecuting the action; and, b) the defendants would suffer non-compensable prejudice. That is the test from Faris v. Eftimovski, 2013 ONCA 360. There is also no dispute that the Master purported to apply this test.

[8] The appellant argues that the Master committed palpable and overriding errors of fact or mixed law and fact when he concluded that:

a. there had been an unexplained delay of 3.5 years;

b. viva voce evidence from the deceased Grandfather was necessary for a fair trial; and

c. Grandfather’s death resulted in actual prejudice to the defendants.

[9] There was a total period of 4.5 years of delay from the completion of discovery in 2014 to the plaintiff’s first communication to counsel for the defendants in March 2019 following Grandfather’s death. There was ample basis to support the Master’s conclusion that the plaintiff had failed to offer a reasonable explanation for 3.5 years of that time period.

[10] The Master accepted that the plaintiff’s submission that approximately one year of the total delay had been satisfactorily explained. He did not accept that the plaintiff’s explanation for a further year of delay. It was reasonably within the Master’s purview, on the evidence, to reach that conclusion.

[11] Further, contrary to the plaintiff’s argument, the Master considered the role of defendants’ conduct in his reasons on the delay. He correctly articulated the principle, however, that a defendant cannot be accused of lying “in the weeds” in the absence of any initiative on the part of the plaintiff to move the action forward.

[12] Further, the Master did not rely on any delay after plaintiff’s counsel first tried to contact Grandfather’s estate in March 2019. Counsel for the plaintiff relies, however, on the lack of cooperation from defendants’ counsel in identifying Grandfather’s estate trustee and facilitating an order to continue. The plaintiff argues that, had defence counsel been more cooperative, this action could have been set down for trial earlier and a mandatory mediation been conducted before the five-year anniversary date of this action.

[13] The problem I see with this argument is the lack of any reasonable explanation for why arranging for mediation and setting the action down was not done in the intervening period from October 2014 (when discovery was completed) to January 2019 (when Grandfather died).

[14] This appeal is obviously not a opportunity to re-weigh the evidence. That is not the role of an appellate court. I am unable to find any palpable and overriding error of fact or mixed law and fact in the Master’s assessment of the evidence in reaching the conclusion he did on the length of the delay and its causes and effects.

[15] On the question of the need for Grandfather’s viva voce evidence and actual prejudice, the plaintiff argues that Grandfather’s discovery had been completed and therefore his evidence under oath had been preserved. The plaintiff also argues that Grandfather admitted that he forged the plaintiff’s signature on the transfer documents for the Caledon property.

[16] However, the plaintiff’s claim to beneficial ownership of the property was based on oral representations. There was no documentary evidence that Grandfather purchased this property for the plaintiff beneficially.

[17] This was, in part, a fraud case. The Master concluded that viva voce evidence (almost all of which would have to come from the plaintiff and Grandfather) would be required. The case turned on the credibility and reliability of the plaintiff’s and Grandfather’s conflicting testimony over the oral representations. This would require the trial judge to assess not only truthfulness but reliability of both parties’ evidence. The Master also concluded that the action could have been tried well before Grandfather’s death.

[18] The issue of whether title to the property was transferred beneficially to the plaintiff was a live issue; indeed, perhaps the issue in this action. Discovery is unlike an examination in chief or cross-examination. Discovery evidence results only from opposing counsel’s questions. Discovery transcripts in a case of this kind, where the outcome is entirely dependent on which of two opposing versions of events is the more credible and reliable, is a poor substitute for viva voce evidence. There was ample evidence to support the Master’s conclusion that viva voce evidence was necessary and that viva voce evidence had become impossible as a result of delay in prosecuting the action prior to Grandfather’s death.

[19] The appeal from the Master’s February 27, 2020 Order is therefore dismissed.

[20] The second Order made March 12, 2020 concerned the second action brought by the plaintiff against Grandfather for entitlement to the Toronto property and the photography business. The Order was made following argument of a motion brought by the defendants under Rule 24.01(1). It is not in dispute that the test on a motion to dismiss for delay requires the defendant to show that a three-part test has been met. First, is the delay inordinate? Second is there a reasonable explanation for the delay? And third, as a result of the delay is there a substantial risk that a fair trial is not possible?

[21] The Master’s reasons on these three components of the test are detailed, thoughtful and comprehensive. Regarding delay, the plaintiff submitted that 2.5 years was not inordinate delay. He relied, among other things, on a decision of LaForme J. (as he then was) concluding that a delay of 3.5 years was only “borderline” in the circumstances of that case. As the plaintiff himself submits however, the length of the delay, standing alone, is almost never sufficient to meet the test of inordinancy. The circumstances of the delay obviously affect whether it is inordinate in a given case. It must be remembered that when the plaintiff commenced this action, Grandfather was already 93 years of age and the plaintiff’s grandmother (who was younger) had already suffered a stroke and become incapacitated. The plaintiff must bear some of that risk when suing a person of this advanced age. The Master’s reasons on delay are, in my view, unimpeachable.

[22] Regarding explanation for the delay, there simply was none, which was conceded by plaintiff’s counsel at the motion.

[23] With respect to prejudice, the second action was similar to the first in that it was entirely based on oral representations and collateral facts, all of which were in dispute and almost all of which could only be testified to by the plaintiff and Grandfather. This evidence too was a credibility/reliability contest between two competing versions of what was said and not said. The Master found, based on the pleadings, discovery and other evidence before him, that Grandfather’s viva voce evidence at trial would be crucial to the defence of the action because “only he could confirm or deny any of the evidence given by the plaintiff”.

[24] Since credibility and reliability was at the heart of this claim, again, the Master concluded that a transcript of Grandfather’s discovery was not an adequate substitute for live evidence at a trial in the circumstances. Grandfather’s death created a substantial risk that a fair trial would not be possible. Again, there was ample support in the record for this conclusion.

[25] The plaintiff is simply asking this court to re-weigh the evidence but, this time, in a manner more favourable to the plaintiff’s position. That is not the role of the court on an appeal. The Master’s conclusion that the prejudice was caused by the delay because this case could have been set down for trial in 2016 and tried well before Grandfather died was founded, again, on ample support from the Record.

[26] There was no palpable and overriding error in arriving at any of these findings. For these reasons, notwithstanding Ms. Farley’s able submissions, both appeals are dismissed.

[27] As agreed between the parties, costs are to be paid by the appellant in the amount of $6,500 for each appeal.

___________________________ PENNY J.

Date of Oral Reasons for Judgment: February 8, 2021

Date of Release: February 9, 2021

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

DARREN LEVANT

Plaintiff (Appellant)

– and –

GILBERT STUDIOS LIMITED, NINA GILBERT, also known as NINA LEVANT, Executrix for the Estate of Albert Gilbert and Nina Gilbert, also known as Nina Levant, the Executrix of the Estate of GAIL GILBERT also known as GAIL GOLDIE GILBERT

Defendants (Respondents)

ORAL REASONS FOR JUDGMENT

penny J.

Date of Oral Reasons for Judgment: February 8, 2021

Date of Release: February 9, 2021