COURT FILE AND PARTIES

COURT FILE NO.: 07-CV-333479
MOTION HEARD: 20111205
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Gill et al., Plaintiffs

AND:

UJGR Investments Ltd. et al ., Defendants

BEFORE: Master Abrams

COUNSEL:
R. Shastri, Counsel, for the Plaintiffs (324-4200, f.)
H. Crosner, Counsel, for the Singh Defendants (947-0553, f.)
E. Persichilli, Counsel, for the Defendant UJGR Investments Ltd. (593-7760, f.)

HEARD: December 5, 2011

REASONS FOR DECISION

[ 1 ] In 2007, the plaintiffs commenced an action for, inter alia , adverse possession with respect to a strip of land that is found between their property and the property owned by the defendant UJGR Investments Ltd. The Singh defendants are the principals of UJGR. A counterclaim was initiated by UJGR Investments Ltd., in 2007, for injunctive relief--restraining the plaintiffs from trespassing on the disputed strip of land.

[ 2 ] On September 14/09, Master Brott made a timetabling Order which provided, in part, that the claim and counterclaim were to be set down for trial by August 31/10. Master Brott also required of all parties that they conclude discoveries and mediation by June 30/10.

[ 3 ] The evidence before me is that it was not until the Spring of 2010 (April or May/10), after the plaintiffs parted company with their first lawyer (Mr. Ian Cantor), that the plaintiffs became aware of the specific dates ordered met by Master Brott. It is noteworthy that none of the parties took any steps to comply with the timetable before then. Affidavits of documents were not exchanged; discoveries were not conducted; and, mediation was not undertaken.

[ 4 ] Once they learned of the terms of Master Brott’s Order, the plaintiffs made efforts to retain new counsel. Deepa Singh served a Notice of Appointment on June 25/10. Regrettably, though, she did nothing to advance the plaintiffs’ claims before she and the plaintiffs parted company.

[ 5 ] On August 30/10, the plaintiffs (without the assistance of counsel) faxed a motion record to the defendants for a motion to extend the August 31 st deadline set by Master Brott. The motion purported to be returnable on August 30/10. While the motion was not heard on that day, I think it important to consider that the plaintiffs had sufficient respect for court process to pre-emptively seek an Order delaying the set down date. The fact that they did not permit the deadline to pass before they took action is, to me, in keeping with their present assertion that they were always ready, willing and desirous of advancing their claims.

[ 6 ] Advised by court staff that their motion was not properly served, the plaintiffs re-served their motion materials asking that their motion be heard during the week of September 13/10—in writing. Low, J. made an Order in which she indicated that the motion was not properly brought in writing and suggested that the plaintiffs might speak to the relief sought by them in to-be-spoken-to court.

[ 7 ] Their efforts at obtaining an extension being unsuccessful once more, the plaintiffs sought the advice of a new lawyer--Yigal Rifkind. Mr. Rifkind prepared supplementary motion materials and delivered an amended motion record for a motion returnable in writing on October 11/10.

[ 8 ] In the interim, and before the motion could be heard, the claim and counterclaim were dismissed by the Registrar. A further motion record was delivered by Mr. Rifkind, for a motion returnable November 25/10, seeking an Order varying Master Brott’s Order and setting aside the dismissal Order. That motion was adjourned by Master Dash to January 7/11. The January 7/11 date was to have been adjourned further to March 16/11; but, the motion did not proceed because the date was not confirmed by Mr. Rifkind. Mr. Rifkind then secured the date of July 7/11 for the hearing of the motion. The motion did not proceed on that date either, because one of the defence counsel was not available. The motion was adjourned, yet again—this time to September 6/11.

[ 9 ] On August 16/11, the plaintiffs attended to be cross-examined on their affidavits delivered in support of their motion. Their counsel, Mr. Rifkind, did not attend with them. The cross-examinations could not proceed.

[ 10 ] By the end of August/11 (after a year of fits and starts by and on behalf of the plaintiffs), the plaintiffs decided to retain new counsel, their present counsel. Since the retainer of Mr. Shastri, the plaintiffs have provided the defendants with their draft affidavit of documents and have reimbursed the defendants for their out-of-pocket expense in respect of the thwarted cross-examinations. Further, this motion was properly scheduled and confirmed.

[ 11 ] With this history in mind, it is now for me to consider whether it is just in all of the circumstances to set aside the dismissal Order made herein. In all, I am satisfied that it is.

[ 12 ] On the evidence before me, I accept that the reasons for the initial delay on the part of the plaintiffs include: some health issues experienced by at least one of the plaintiffs, the cessation of the plaintiffs’ relationship with their first lawyer, and the plaintiffs’ inability to resolve retainer matters with Ms. Singh, counsel on the record in June/10. Further, and in any event, the plaintiffs say (and this evidence is not challenged) that they had believed that the initial delay was acceded to by all parties in that efforts were being undertaken to settle the claims.

[ 13 ] I agree with defendants’ counsel when they say that it would have been helpful had Mr. Cantor or Ms. Singh sworn an affidavit herein. The absence of such evidence is not fatal to the plaintiffs’ motion, though. The fact that no steps were taken by anyone to advance the litigation before August 31/10, the fact that there is a September/09 reference to a “possible resolution” found in the email appended as Schedule “G” to Mr. Decker’s November 4/11 affidavit, and the fact that the timetabling Order made by Master Brott was made on consent lend credence to the position now taken by the plaintiffs as to their understanding of what was happening/what needed to happen in the early days of the litigation.

[ 14 ] As well, I accept that the plaintiffs sought to address the August 31/10 deadline in a timely (albeit imperfect) manner. The failure on the part of the plaintiffs to meet the August 31/10 deadline or to have it extended before it passed was, as Mr. Shastri has argued, neither contumelious nor deliberate.

[ 15 ] Once Mr. Rifkind was retained, the plaintiffs’ efforts to vary Master Brott’s Order were subject to a series of errors that were not occasioned through any fault of theirs. Ought they to suffer for the errors and/or omissions of their former counsel? “The law will not ordinarily allow an innocent client to suffer the irrevocable loss of the right to proceed by reason of the inadvertence of his or her solicitor” ( March é D’Alimentation Denis Thériault Ltée v. Giant Tiger Stores Limited , 2007 ONCA 695 , at para. 28 ). There is no evidence before me to suggest that Mr. Rifkind’s missteps were deliberately taken on behalf of the plaintiffs; and, there is evidence before me that makes it clear that, at least from mid-2010 onwards, the plaintiffs themselves were desirous of moving their action forward.

[ 16 ] Further, given the nature of the claims and there being no evidence of missing or destroyed documents or missing or deceased witnesses, I accept that the prejudice that will befall the plaintiffs if the relief sought is not granted will far outweigh that which will befall the defendants if it is granted. The claims against both defendants were commenced well within the relevant limitation periods; and, the limitation period as it applies to UJGR Investments Ltd. has yet to expire. The plaintiffs made concerted (but faulty) efforts to safeguard against their claims being dismissed for delay before August 31/10. And, while I accept that there is evidence that UJGR Investments Ltd. is unable to use all of the land that it says is registered to it, this prejudice is not new. It existed as at the time that the action was commenced. Further, there is no compelling or persuasive evidence before me as to the parties’ right to a fair and effective trial being compromised. The fact that the plaintiffs have not produced a survey or incident reports or transcripts relating to any time before 2007 is not prejudice that is directly or indirectly attributable to the plaintiffs’ delay in prosecuting their claims.

[ 17 ] My role is to consider the Reid factors: litigation delay (and the explanation therefor), the reasoning behind the missed deadline (and any inadvertence in respect thereto), the pace at which the plaintiffs moved to set aside the dismissal Order once it came to their attention, and any prejudice to the defendants; and, I am to do so from a contextual perspective [^1] . I must consider and weigh all relevant factors to determine the Order that is just in the circumstances of the case at bar; and, I have done so.

[ 18 ] Given the history of this action, the evidence as to early efforts at resolution of the parties’ claims, the nature of the claims made and the manner in which they will be proved given their nature, the fact that Master Brott’s Order was made on consent, the plaintiffs’ own direct efforts to ensure that their action not be dismissed for delay, the problems encountered by the plaintiffs in seeing this motion brought while they were represented by Mr. Rifkind, the continued efforts on the part of the plaintiffs to move this action forward after, they say, they learned of the timelines to which it was subject, the paucity of evidence as to actual prejudice to the defendants and the complete failure on the part of the defendants to take any step to advance the litigation (including the counterclaim of UJGR Investments Ltd.) or to bring the litigation to an early conclusion, I am satisfied that what is just in the circumstances of this particular case is that the plaintiffs be permitted to prosecute their claims. And while I agree that finality to litigation is “a compelling consideration”, the defendants’ inaction detracts from their argument that “...finality must trump the [plaintiffs’] plea for an indulgence” ( March é D’Alimentation Denis Thériault Ltée v. Giant Tiger Stores Limited , 2007 ONCA 695 , at para. 38 ).

[ 19 ] The dismissal Order is hereby set aside, with the new set down date now fixed by me as December 31/12 [^2] . Failing agreement as to the costs of this motion, I may be spoken to.

Master Abrams

February 29, 2012

[^1]: See: Wellwood v. Ontario (Provincial Police), 2010 ONCA 386 and Scaini v. Prochnicki, 2007 ONCA 63, at para. 23

[^2]: Without prejudice to the parties’ right to seek an Order extending the December 31 st deadline.