ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11-DV -1725
DATE: 2012-03-12

BETWEEN:

KENNETH GREEN Plaintiff (Appellant) – and – GREENSMERE GOLF & COUNTRY CLUB and JOHN GREEN Defendants (Respondent)

Richard Marks, for the Appellant

Martin J. Thompson, for the Respondent, Greensmere Golf & Country Club

HEARD: January 5, 2012 at Ottawa, Ontario

Application on Appeal

Madam Justice B. R. Warkentin

1This Appeal stems from an Endorsement made by Master MacLeod at a status hearing which was held at the end of November 2010.

2At the status hearing, counsel for the Defendants (Respondent to this Appeal) sought to have the action dismissed for delay pursuant to Rule 48.14(1) and (4) of the Rules of Civil Procedure . [1]

3In his written endorsement dated March 11, 2011, Master MacLeod determined that the Plaintiff had not met the onus upon him in Rule 48 of the Rules of Civil Procedure , supra, and found in favour of the Defendants and instructed the Registrar to proceed to dismiss the proceeding for delay. Master MacLeod also ordered costs on a partial indemnity scale payable by the Plaintiff to the Defendants in the amount of $15,927.45.

4On March 23, 2011 an “Order Dismissing Action for Delay” was issued by the Registrar.

5The main issue on this Appeal is whether or not the Master properly applied the applicable test when permitting an action to be dismissed for delay pursuant to Rule 48.14(13) (b) of the Rules of Civil Procedure , supra . The Rule states:

48.14(13) At the status hearing, the plaintiff shall show cause why the action should not be dismissed for delay and,

(b) if the presiding judge or case management master is not satisfied that the action should proceed, the judge or case management master may dismiss the action for delay.

6The Appellant also seeks an order setting aside the costs award in the Master’s Endorsement.

Background

7The Appellant was the Plaintiff in a Statement of Claim issued on December 22, 2005. The Appellant claimed against the Respondents, Greensmere Golf & Country Club and John Green, the Appellant’s father. The Respondents were the Defendants in the action.

8The Appellant, his brother Darren Green and his father John Green had entered into an agreement to work together to develop and promote Greensmere Golf & Country Club (the "Club"). The terms of their agreement included that they would work for the Club for an indefinite period and would be paid a salary. Each was to have the opportunity to obtain a residential lot adjoining the golf course.

9In his claim, the Appellant alleged that he was constructively dismissed in circumstances which were abusive. He claimed damages for this dismissal as well as specific performance of the agreement whereby he was to be provided with a building lot. The claim related to the building lot was settled.

10The Statement of Defence of the Club was issued on May 3, 2006 and the Statement of Defence of John Green was issued on May 9, 2006. On June 13, 2006, the parties attended mediation, which was unsuccessful.

11Throughout 2006 and 2007 the parties exchanged correspondence with offers to settle but no settlement was reached.

12In September of 2007 the Appellant sought to conduct examinations for discovery of the Respondents without having served an affidavit of documents. The Respondents insisted that the Appellant adhere to the Rules of Civil Procedure , supra, which require the party seeking to examine another party to deliver a sworn affidavit of documents in advance of that discovery.

13On October 27, 2008 the Club served its affidavit of documents and sought examinations for discovery of the Appellant without success.

14On April 19, 2009, the Respondent, John Green, died.

Failure to Provide Sworn Affidavit of Documents

15On July 27, 2010 a Status Notice was sent to the Appellant by the Court indicating the action was scheduled to be dismissed for delay if certain conditions were not met. The Appellant was to inform the Court of steps taken to move the proceeding forward at a hearing, originally scheduled on October 27, 2010.

16The status hearing eventually occurred at the end of November 2010. The Appellant was required to show cause why the action should not be dismissed for delay. The Appellant filed an affidavit in which he claimed to suffer from depression and anxiety which prevented him from being able to instruct counsel, complete an affidavit of documents and as such could not move his action forward.

17The Appellant claimed that he was advised by his family physician, Dr. Guzar to undertake a course of treatment, including medication and counseling in order to overcome these problems. The Appellant did not follow his doctor's advice, claiming to have an abiding fear of taking medication. The Appellant was therefore unable to address his anxiety and depression issues and continue the litigation in a timely fashion.

18A legal assistant working at the law firm of the Appellant's solicitors also filed an affidavit in the status hearing in which she detailed the law office's failed attempts to obtain instructions from the Appellant and attached a letter from the Appellant's family physician, Dr. Rebecca Guzar, dated October 26, 2010 as an exhibit to her affidavit. Dr. Guzar's letter described the Appellant's condition as situational chronic depression and stated that he was incapable of dealing with any matters related to his litigation.

19Neither the Appellant nor his solicitor provided any proposals for moving the litigation ahead. The Appellant sought the court's indulgence with an unspecified period of time so that he could undergo what he described as several months of trial treatments in the hopes that he could overcome his anxieties to bring the litigation forward.

20It was the Club's position that the late John Green would have been the sole witness for the Respondents and as a result of the Appellant's delay and the death of John Green, the Respondents had suffered prejudice.

21The Appellant’s evidence did not deal with the issue of the prejudice to the Respondent arising from the death of John Greene. The Appellant’s evidence dealt only with his reasons for delay in moving the action forward.

The Law

The Standard of Review

22In reviewing the decision of a Master, the standard of review is correctness, whether the decision is final or interlocutory and whether or not it is vital to the disposition of the lawsuit. The Master's decision will be interfered with only if the Master made an error of law, exercised his discretion on the wrong principles or misapprehended the evidence such that there is a palpable and overriding error. [2]

23The test to be met on a status hearing is whether or not there is an explanation for the delay such that the Master would be satisfied that the action should proceed and whether there is prejudice to the defendant. The onus was on the Appellant to satisfy both aspects of the test. [3]

Did the Master Err in His Application of the Test?

24In his reasons, Master MacLeod correctly set out the two pronged test the Appellant was required to meet. He found that the Appellant's reasons for delay fell short of showing reasonable efforts had been made to prosecute the action. He noted that the action had not progressed for more than 4 years during which the Appellant had taken no steps to deal with his inability to turn his attention to the proceeding. He found the material presented at the status hearing by the Appellant lacked particulars and did not address what steps the Appellant had considered or attempted other than simply waiting.

25Master MacLeod also found that the Appellant failed to address the second prong of the test, that of the prejudice to the Respondents as a result of the death of John Green. He noted that the Club had clearly identified the irredeemable prejudice to the Respondents as a result of the death of John Green, the key witness for the Respondents.

26I find no evidence that the Master made an error of law, exercised his discretion on the wrong principles or misapprehended the evidence in reaching his conclusions. The Master committed no palpable or overriding error.

Did the Master err in awarding costs to the Club?

27At the close of the status hearing, the respondent provided the Master with a written costs submission in a sealed envelope, a copy of which was also provided to counsel for the Appellant.

28The solicitor for the Appellant did not submit responding costs submissions.

29The Appellant now claims that Master MacLeod erred in awarding costs to the Club and that the Appellant had no opportunity to make costs submissions.

30The Appellant was unable to provide an explanation as to why he was unable to make costs submissions. It was the Appellant's obligation (through his solicitor) to submit his costs outline at the conclusion of the status hearing, which he failed to do. The Master's endorsement was released more than three months after the status hearing during which time the Appellant or his solicitor could have filed a costs outline, but did not.

31I find that the Master was correct in assessing and awarding costs to the Respondent, Greensmere Golf and Country Club.

32The appeal is therefore dismissed on both the issue of the dismissal of the action for delay and the award of costs.

Costs of the Appeal

33I did receive costs outlines from both parties in sealed envelopes at the conclusion of the appeal.

34I have now reviewed those costs outlines. The Club's solicitors claim costs on a partial indemnity basis in the amount of $7,926.44 inclusive of HST and disbursements. The Appellant's solicitor's corresponding costs outline claims partial indemnity costs inclusive of HST and disbursements in the amount of $18,336.35.

35Had the Appellant been successful in this appeal, I would have found the costs claimed excessive, given the relatively straightforward nature of this appeal.

36I find that the Respondent, Greensmere Golf and Country Club, is entitled to its costs of this appeal on a partial indemnity basis and fix those costs at $6,000.00 inclusive of HST.

Madam Justice B. R. Warkentin

Released: March 12, 2012

COURT FILE NO.: 11-DV -1725
DATE: 2012-03-07

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: KENNETH GREEN Plaintiff (Appellant) – and – GREENSMERE GOLF & COUNTRY CLUB and JOHN GREEN Defendants (Respondent) APPLICATION ON APPEAL Warkentin J.

Released: March 12, 2012

1Rules of Civil Procedure , R.R.O. 1990, REGULATION 194, Rule 48.14(1) and (4)

2Savundranayagam v. Sun Life Assurance Co. of Canada , 2008 54788 (ON SCDC) , [2008] O.J. No. 4215 (Div. Ct.) at paragraph 11

3Savundranayagam , supra, at paragraph 13