Court File and Parties

CITATION: Lumaj v. St. Michael’s Hospital, 2021 ONSC 5786

DIVISIONAL COURT FILE NO.: 259/21

DATE: 20210830

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Diella Lumaj on her own behalf and as administrator of the estate of Gjyste Lumaj deceased, lek lumaj, hana gjelaj, emmanuelle gjelaj, damJan gjelaj, lulA lumaj and klodian lumaj, Appellants (Moving Parties)

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St. michael’s hospital, dr. Robert james sargeant, JOAN NURSE and Jane Nurse, Respondents on Appeal (Responding Parties)

BEFORE: Swinton J.

COUNSEL: Diella Lumaj and Lula Lumaj, self-represented (Moving Parties)

Victoria Cistrone¸ for St. Michael’s Hospital (Responding Party)

Stephen Ronan, for Dr. Sargeant (Responding Party)

HEARD at Toronto (by videoconference): August 26, 2021

ENDORSEMENT

Overview

[1] The appellants Diella Lumaj and Lula Lumaj appeal from the order of Master McGraw dated March 3, 2021 refusing to set aside the Registrar’s order of dismissal of their civil action for delay, made pursuant to rule 48.14(1) (reported at 2021 ONSC 1603).

[2] The Registrar’s dismissal order was made on May 1, 2013. The underlying action, based on a claim of medical negligence, was commenced in 2009 following the death of Gjyste Lumaj.

The Decision of the Master

[3] The factual background to this matter is set out carefully in the Master’s reasons. He then correctly described the proper legal test to be applied in a motion to set aside a Registrar’s dismissal pursuant to rule 37.14. That test was set out in Reid v. Dow Corning Corporation, [2001] O.J. No. 2365 at para. 41 (rev’d on other grounds, [2002] O.J. No. 3414 (Div. Ct.)), and it has been applied by the Court of Appeal in numerous cases (see, for example, Prescott v. Barbon, 2018 ONCA 504 and Marché d’Alimentation Denis Thériault Ltée v. Giant Tiger Stores Limited, 2007 ONCA 695 at para. 12).

[4] In such a motion, the court must consider four factors:

(i) Have the plaintiffs provided a satisfactory explanation for the litigation delay?

(ii) Have the plaintiffs led satisfactory evidence to explain that they always intended to prosecute this action within the time limit set out in the rules or a court order but failed to do so through inadvertence?

(iii) Have the plaintiffs demonstrated that they moved forthwith to set aside the dismissal order as soon as the order came to their attention, and

(iv) Have the plaintiffs convinced the court that the defendants have not demonstrated any significant prejudice in presenting their case at trial as a result of the plaintiffs’ delay or as a result of steps taken following the dismissal of the action? (Prescott at para. 14)

The court hearing such motion must consider the overall context and determine the order that is just in the circumstances (Prescott at para. 15).

[5] The Master accepted that the motion to set aside was brought promptly by the appellants, after they first learned about the dismissal in June 2019, and they had acted reasonably in relying on the representations of their lawyer, Joseph Kary.

[6] However, the Master did not accept that the delay was inadvertent. Based on the lack of explanation from Mr. Kary as to why the deadline to set the matter down for trial was missed, or any explanation for the failure to move to set aside the dismissal over a six year period, the Master concluded that counsel had effectively abandoned the action, and the litigation delay was not due to inadvertence.

[7] The Master also concluded that there was prejudice to the defendants, whose interest in finality outweighed the appellants’ interest in a hearing on the merits, given the delay of over six years between the dismissal and the hearing of the motion. Overall, he concluded that it was just, in all the circumstances, to refuse to set aside the dismissal order.

The Appellants’ Position

[8] The appellants do not understand why their action was not restored, given that they were not personally at fault. They did not learn about the dismissal until June 2019, and they presented evidence showing that they had made many efforts over the years to contact Mr. Kary about their action, and he had avoided them or misled them about the state of the action.

The Standard of Review

[9] The decision of the Master was an exercise of discretion, based on his weighing the four factors from Reid in light of the evidence before him. As an appellate judge, I have the power to overturn his decision only if he made an error in law or made a palpable and overriding error in his assessment of the evidence. It is not my task to reweigh the evidence and substitute my decision for that of the Master (Prescott at para. 11).

Analysis

[10] The Master applied the correct legal principles. He considered each of the relevant factors, and he adopted a contextual approach in applying the test.

[11] The Master assigned no blame to the appellants’ conduct. He found that the appellants did not know of the dismissal until June 2019, and they acted promptly to bring a motion to set aside the dismissal. He found that they had reasonably relied on Mr. Kary in the circumstances.

[12] While those factors weighed in favour of setting aside the dismissal, the Master was also required to consider other factors that weighed against reinstatement. He found that Mr. Kary had effectively abandoned the action, observing that Mr. Kary was potentially negligent. He also noted that the Court of Appeal in Giant Tiger, above, had concluded that reinstatement of an action after five years could undermine confidence in the administration of justice.

[13] With respect to the factor of prejudice to the defendants, the Master focused on the importance of finality in the litigation process. That is a relevant consideration in determining prejudice to the defendant, as the Court of Appeal stated in Giant Tiger, at para. 38:

When an action has been disposed of in favour of a party, that party's entitlement to rely on the finality principle grows stronger as the years pass. Even when the order dismissing the action was made for delay or default and not on the merits, and even when the party relying on the order could still defend itself despite the delay, it seems to me that at some point the interest in finality must trump the opposite party's plea for an indulgence. This is especially true where, as in the present case, the opposite party appears to have another remedy available.

[14] In the present case, the Master concluded that the defendants’ interest in finality, after six years from the dismissal, outweighed the appellants’ request for an indulgence. He summarized his reasoning at para. 38:

Taking into consideration all of the relevant factors and circumstances and applying a contextual analysis, I conclude that it is just in the circumstances to dismiss the Plaintiffs’ motion. In balancing the parties’ respective interests, I am satisfied that the Defendants’ right to rely on the finality and assurance that this action was dismissed and to order their affairs accordingly for approximately 6 years outweighs the Plaintiffs’ rights to have this action determined on the merits particularly where they have potential claims against Mr. Kary. In these circumstances, the principle that plaintiffs should not suffer the irrevocable loss of rights to have their action proceed on the merits due to the conduct of their counsel must give way to the Defendants’ rights to rely on the finality that the Dismissal Order has provided especially where the Defendants’ rights cannot be adequately protected by costs. I am also mindful of the Court of Appeal’s concerns in Giant Tiger of the potential impact that excusing a lawyer’s delay of 6 years would have on the administration of justice.

[15] I note that the five year delay in Giant Tiger was the fault of the solicitor (at para. 41). In his reasons, Sharpe J.A. stated (at para. 41):

The solicitor's behaviour resulted in an excessive delay. Delays of this kind are inimical to the important goal of timely justice. The legal system should not condone the solicitor's behaviour as to do so would fail to provide appropriate incentives to those engaged in the justice system and would risk harming the integrity and repute of the administration of justice. Reinstating the action at this point would undermine the finality principle while refusing [to] reinstate the action does not interfere with the need to ensure adequate remedies.

[16] The Master applied the correct legal principles in the present case. He carefully considered the evidence and weighed the factors in favour of and against setting aside the dismissal. Given the inordinate length of the delay, he reasonably concluded that refusal to set aside the dismissal was just in the circumstances. Accordingly, there is no basis for appellate intervention.

Conclusion

[17] The appeal is dismissed.

[18] Responding counsel presented bills of costs, but they left the quantum of costs to be determined by me. As the respondents were successful on the appeal, they are entitled to costs. However, given the financial situation of the appellants, I make a modest order of costs in the amount of $750 to Dr. Sargeant and $200 to the Hospital.

Swinton J.

Released: August 30, 2021