COURT FILE NO.: 08-CV-359839
MOTION HEARD: February 24, 2012
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Louie Vogrin, in the name and on behalf of 744142 Ontario Ltd. and Louie Vogrin v. Donald Ticknor (Deceased), The Estate of Donald Ticknor, Willo D. Ticknor, Graydon Wildman & Eva Wildman and Edward F. Symons
BEFORE: MASTER R.A. MUIR
COUNSEL: Claudio Martini for the plaintiffs Sonja Hodis for the defendants Graydon Wildman and Eva Wildman James H. Bennett for the defendant Edward F. Symons
REASONS FOR DECISION
[1] The plaintiffs bring this motion pursuant to Rule 37.14 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) for an order setting aside the order of the registrar dated January 12, 2011 dismissing this action for delay. This action was dismissed by the registrar as a result of the failure on the part of the plaintiffs to bring this action to a conclusion or to have it set down for trial within the time limits prescribed by Rule 48.14.
[2] The defendants Graydon Wildman (“Graydon”), Eva Wildman (“Eva”) and Edward F. Symons (“Symons”) oppose the granting of the relief sought on this motion. The claims against the defendants Donald Ticknor (“Donald”), The Estate of Donald Ticknor and Donald’s wife, Willo D. Ticknor (“Willo”) appear to have been settled in March, 2010. However, no order has been made dismissing this action against those defendants (other than the registrar’s order of January 12, 2011 dismissing the action in its entirety) and nor has this action been discontinued against those defendants. In any event, it appears that this matter has been concluded insofar as those defendants are concerned and they did not participate in this motion.
PRE-LITIGATION BACKGROUND
[3] The events that give rise to this litigation began in 1987. It appears that in the spring of 1987, Donald and the plaintiff Louie Vogrin (“Vogrin”) entered into a form of joint venture with the objective of purchasing and developing property. In October, 1987, through the vehicle of the plaintiff 744142 Ontario Ltd. (the “Corporation”), Donald and Vogrin, as equal partners, purchased a piece of property in the Township of Georgian Bay for the sum of $308,500.00 (the “Property”). In June, 1989, the Corporation entered into a subdivision agreement with the Township of Georgian Bay regarding the development of the Property. The subdivision agreement contemplated that there would be 47 lots plus a separate 40 acre parcel (the “Parcel”). The lots were to be sold in two phases and the Parcel was to be retained for future development.
[4] Vogrin alleges that when the Property was purchased he was living in Mississauga while Donald was a resident of Coldwater, a short distance from the Property. Consequently, for reasons of convenience, Vogrin allowed Donald to manage and operate the day to day affairs of the Corporation, at least initially.
[5] It appears that between 1989 and 1992, the Corporation sold various lots in the subdivision. Vogrin alleges that in late 1990, he became concerned about “cost over-runs and mistakes” made by Donald and apparently warned Donald that any further actions by the Corporation would have to be approved by both Vogrin and Donald.
[6] Vogrin alleges that he subsequently learned that between 1989 and 2004, the Corporation had sold various lots in the subdivision and that Donald had wrongfully diverted proceeds from those sales totaling $140,000.00. In fact, Vogrin had previously written to Donald on October 24, 1995, questioning various financial details regarding the operation of the Corporation and the development of the Property.
[7] The defendant Symons is a 75 year old retired lawyer. In 1995 Symons was in private practice with an office in Midland, Ontario. Symons’ position is that in 1995 he was acting on behalf of Donald only, although Vogrin alleges Symons was the Corporation’s lawyer. In any event, on November 25, 1995, Symons responded to Vogrin’s October 24, 1995 letter on behalf of Donald. Symons’ letter set out Donald’s position with respect to the various issues raised by Vogrin and invited Vogrin to contact him to arrange for a meeting for the purpose of sorting out the various issues between Vogrin and Donald. It appears that this letter was never responded to. It also appears that Vogrin took no further steps to address his concerns with respect to the operation of the Corporation or the development of the Property until 2003. This may have been due, in part, to Vogrin being diagnosed with cancer in 1995 which required him to undergo several surgeries between 1995 and 1999.
[8] At some point in 2003, Vogrin retained Albert Miller (“Miller”) to act as his lawyer and to provide advice with respect to the issues surrounding the Corporation and the Property. According to Vogrin, Miller’s retainer also included instructions to commence this action. On December 30, 2003, Miller wrote to Donald and raised various questions regarding the operation of the Corporation. Specifically, Miller alleged that Donald had improperly diverted funds belonging to the Corporation which were received from the sale of topsoil and subdivision lots. Consequently, Miller demanded that Donald provide him with various documents relating to these allegations.
[9] On March 10, 2004, Miller wrote to Symons requesting similar information from him. It appears, however, that by this time, Donald had begun to develop dementia and soon thereafter he was diagnosed as suffering from Alzheimer’s disease. Symons’ evidence is that he was unable to obtain instructions from Donald as a result of his illness but did work with Donald’s son to provide some information to Miller.
[10] On June 1, 2004, the Corporation sold the Parcel to Graydon and Eva for $40,000.00. Vogrin alleges that this sale was entered into without his consent and that the sale price was far less than the actual value of the Parcel. It appears that Vogrin was well aware of this potential claim shortly after the sale took place as his evidence is that beginning in 2004 he instructed Miller on multiple occasions to obtain a certificate of pending litigation over the Parcel.
[11] Donald passed away on April 25, 2006. On June 9, 2006, Symons wrote to Miller advising of Donald’s death and offering his cooperation with respect to transitioning the management of the Corporation to Vogrin. Miller responded to this letter on August 28, 2006 by suggesting that Vogrin may commence litigation against Symons.
[12] There appears to have been no further contact between Miller and the defendants until the statement of claim in this action was served in August, 2008. Vogrin’s evidence is that throughout the time period between his retainer of Miller in 2003 and the issuance of the statement of claim on July 31, 2008, he regularly followed up with Miller regarding the status of this matter. Vogrin was apparently advised by Miller that appropriate steps were being taken to move the matter forward and to protect Vogrin’s interests. It is notable, however, that there is no corroborating evidence in support of these statements by Vogrin. Neither Vogrin nor Miller has produced any documents, such as letters, dockets or notes, that would confirm this evidence. In addition, Miller’s affidavit is silent with respect to this issue. He simply states that at all material times it was his intention to pursue this action on behalf of the plaintiffs.
THE LITIGATION
[13] The statement of claim in this action was issued on July 31, 2008. It appears to have been served a short time later, in August, 2008. The statement of claim makes allegations that can be roughly divided into two separate categories. First, the plaintiffs allege that Donald, with the assistance of Symons, improperly diverted proceeds of sale from some of the lots. Second, the plaintiffs allege that the Parcel was improperly sold to Graydon and Eva for an amount well below the market price.
[14] On September 3, 2008 Ms. Hodis wrote to Miller advising that she had been retained to represent Graydon and Eva. She advised Miller that it was her position that this action should have been commenced in Barrie and not Toronto and that in any event the applicable limitation period had expired. Ms. Hodis invited Miller to discontinue this action against her clients on a without costs basis. She also asked Miller to confirm that no defence would be required at that time.
[15] Miller responded to Ms. Hodis on September 5, 2008 and advised that he was considering her position and that no defence would be required in the interim. Miller also requested that Ms. Hodis’ clients provide him with certain documents relating to their purchase of the Parcel. There is no evidence that Ms. Hodis responded to Miller’s request for such documents.
[16] On September 10, 2008, Mr. Bennett wrote to Miller advising that he had been retained to represent Symons and enclosed his client’s notice of intent to defend. Mr. Bennett also asked for an indulgence with respect to the delivery of a statement of defence while he investigated the matter. Mr. Bennett also expressed his concern with the very serious fraud and conspiracy allegations that had been made against his client in the statement of claim.
[17] Miller responded to Mr. Bennett on September 22, 2008. Miller indicated that he would not require a defence until further notice and asked Mr. Bennett to advise him when he was in a position to discuss the matter.
[18] It appears that Mr. Bennett provided certain relevant documents to Miller in January, 2009. On April 2, 2009, Miller wrote to Mr. Bennett and advised that Willo and Donald’s Estate had made an offer to settle the claims against them and that Vogrin was considering their offer. Miller indicated that if Vogrin accepted the settlement offer, only the issue of the Parcel would remain extant. With respect to that aspect of the claim, Miller indicated that he was in the process of obtaining an opinion of value for the Parcel.
[19] Mr. Bennett responded to this letter on April 16, 2009 as follows:
I have received instructions from my principals to consent to the proposed settlement between the plaintiff and Mr. Ticknor’s estate and his widow provided it is documented and confirmed that the settled claims and issues arising there from cannot be raised against Mr. Symons. My understanding of the proposal is that all of the claims would then be resolved as between all parties with the exception of the alleged improvident sale transaction involving the 40 acre parcel.
I see great benefit in your proposal in that it would significantly simplify and shorten the issues that need to be resolved . . .
[20] At approximately the same time, Miller wrote to Ms. Hodis and also advised her that his client was attempting to negotiate a settlement with Willo and the estate. Miller also indicated in that letter that he was aware that the Parcel was listed for sale and that he was instructed to obtain a certificate of pending litigation unless he obtained an undertaking from Ms. Hodis’ clients not to sell the Parcel.
[21] Ms. Hodis responded to that letter on May 15, 2009. Ms. Hodis advised Miller that her clients would not consent to the registration of a certificate of pending litigation and nor would they provide the requested undertaking. She also reminded Miller of her clients’ positions regarding venue and the limitation issue. It appears that Ms. Hodis heard nothing further from Miller, or anyone else acting on Vogrin’s behalf, until after this action was dismissed by the registrar, some 20 months later.
[22] Mr. Bennett did not receive an immediate response to his April 16, 2009 letter. On November 5, 2009, he wrote to Miller again seeking an update on the status of the proposed settlement and a response to his April 16, 2009 letter. Miller wrote to Mr. Bennett on November 27, 2009 (although this letter was apparently not faxed to Mr. Bennett until December 18, 2009) advising that Vogrin had settled with Willo and the estate. He also enclosed an opinion of value with respect to the Parcel and suggested that unless Symons had a settlement proposal to make, Vogrin would have to move ahead with his action.
[23] Mr. Bennett responded to Miller on December 21, 2009. Mr. Bennett asked Miller to reconsider the necessity of continuing to have Symons as a party if the only remaining issue was the improvident sale of the Parcel. Mr. Bennett also pointed out to Miller that Symons would be pursuing a limitation defence if this matter were to continue.
[24] Although Miller’s letter dated November 27, 2009 stated that Vogrin had settled with Willo and the estate, it does not appear that the settlement documentation was signed by Vogrin until March 10, 2010. I note that Willo had signed on her own behalf and on behalf of the estate on September 28, 2009. There is no explanation in the evidence for this delay.
[25] It appears that in April, 2010, Miller advised Mr. Bennett that Vogrin would be maintaining his position that Symons continued to face liability in respect of the sale of the Parcel. As a result, on May 28, 2010, Mr. Bennett prepared and served a statement of defence on behalf of Symons. At the same time, Mr. Bennett also served a proposed discovery plan.
[26] Symons’ statement of defence does not include a crossclaim against Willo or the estate. Symons’ evidence is that no crossclaim was included because it was agreed between the parties that the only remaining issue was the sale of the Parcel.
[27] Miller did not respond to Symons’ statement of defence or the proposed discovery plan. Had the proposed discovery plan been followed by the parties, this action would have been ready to be set down for trial well in advance of the date it was dismissed by the registrar.
[28] On September 27, 2010, the court issued a status notice. The status notice required that this action be set down for trial or terminated by any means within 90 days of the date of the status notice. Alternatively, a status hearing could be requested. Miller acknowledges that he received the status notice but simply states that “through inadvertence [he] did not take any further action to comply” with the status notice. No further explanation is provided.
[29] It appears that Miller became concerned with the limitation issues that had been raised by the defendants and in December, 2010 he reported the matter to his liability insurer. At the same time, he met with Vogrin and advised him that he could no longer act on his behalf and that Vogrin should seek independent advice.
[30] On January 12, 2011 this action was dismissed by the registrar. Miller acknowledges receiving a copy of the dismissal order shortly after it was made.
[31] On February 3, 2011 Miller provided Vogrin with the contents of his file. On February 7, 2011, Vogrin retained his current lawyers. In reviewing Miller’s file, Mr. Martini discovered the dismissal order. His office then wrote to Mr. Bennett and Ms. Hodis on March 29, 2011 advising of Vogrin’s intention to bring this motion and seeking their consent to an order setting aside the dismissal. The defendants declined to provide their consent and this motion was then served in early May, 2011 with an initial return date of May 26, 2011. The motion was then adjourned on consent several times and was eventually argued before me on February 24, 2012.
ANALYSIS
[32] In the last five years, the law relating to setting aside registrar’s dismissal orders has been the subject of seven decisions of the Court of Appeal for Ontario.[^1] Although each of those decisions brings a slightly different approach to the decision making process, the general approach first set out by the Court of Appeal in Scaini has been followed consistently. The principles that emerge from those decisions can be summarized as follows:
the court must consider and weigh all relevant factors, including the four Reid[^2] factors which are likely to be of central importance in most cases;[^3]
the Reid factors, as cited by the Court of Appeal in Giant Tiger, are as follows:
(1) Explanation of the Litigation Delay: The plaintiff must adequately explain the delay in the progress of the litigation from the institution of the action until the deadline for setting the action down for trial as set out in the status notice. She must satisfy the court that steps were being taken to advance the litigation toward trial, or if such steps were not taken to explain why.... If either the solicitor or the client made a deliberate decision not to advance the litigation toward trial then the motion to set aside the dismissal will fail.
(2) Inadvertence in Missing the Deadline: The plaintiff or her solicitor must lead satisfactory evidence to explain that they always intended to set the action down within the time limit set out in the status notice, or request a status hearing, but failed to do so through inadvertence. In other words the penultimate dismissal order was made as a result of inadvertence.
(3) The Motion is Brought Promptly: The plaintiff must demonstrate that she moved forthwith to set aside the dismissal order as soon as the order came to her attention.
(4) No Prejudice to the Defendant: The plaintiff must convince the court that the defendants have not demonstrated any significant prejudice in presenting their case at trial as a result of the plaintiff's delay or as a result of steps taken following the dismissal of the action;[^4]
a plaintiff need not satisfy all four of the Reid factors but rather a contextual approach is required;[^5]
the key point is that the court is to consider and weigh all relevant factors to determine the order that is just in the circumstances of each particular case;[^6]
all factors are important but prejudice is the key consideration;[^7]
prejudice to a defendant may be presumed, particularly if a lengthy period of time has passed since the order was made or a limitation period has expired, in which case the plaintiff must lead evidence to rebut the presumption;[^8]
once a plaintiff has rebutted the presumption of prejudice, the onus shifts to the defendant to establish actual prejudice;[^9]
prejudice to a defendant is not prejudice inherent in facing an action in the first place but prejudice in reviving the action after it has been dismissed as a result of the plaintiff’s delay or as a result of steps taken following the dismissal of the action;[^10]
the party who commences the litigation bears the primary responsibility under the Rules for the progress of the action;[^11]
in weighing the relevant factors, the court should not ordinarily engage in speculation concerning the rights of action a plaintiff may have against his or her lawyer but it may be a factor in certain circumstances, particularly where a lawyer’s conduct has been deliberate. The primary focus should be on the rights of the litigants and not with the conduct of their counsel.[^12]
[33] These are the principles I have considered and applied in determining the issues on this motion.
MOTION BROUGHT PROMPTLY
[34] I am satisfied, in the circumstances of this action, that the plaintiffs have brought this motion within an acceptable time period after becoming aware of the dismissal order. The relevant authorities and Rule 37.14(1) require that motions of this nature be brought forthwith after the order comes to the attention of a plaintiff or his or her lawyer. Shorty after discovering the dismissal order, Mr. Martini’s office wrote to the defendants’ counsel and advised of the plaintiffs’ intention to bring this motion and sought their consent to an order setting aside the dismissal. When such consent was not forthcoming, the necessary materials were then prepared and this motion was scheduled within a few weeks.
[35] The initial delay between early February when Mr. Martini was retained and the letter of March 29, 2011 is understandable given that Mr. Martini was new to the file and needed to finalize his retainer and review the history of the matter. Although this motion was not actually argued until more than a year after the dismissal order, the only indication in the court file is that all adjournments after the initial May 26, 2011 return date were on consent. There was some suggestion during argument that this motion was delayed because the parties were waiting for further evidence from Miller but there is no evidence to support that argument.
[36] In my view, the plaintiffs have satisfied this element of the Reid test.
INADVERTENCE
[37] I am not satisfied that the plaintiffs have established that their failure to set this action down for trial in a timely manner was a result of inadvertence. The bald assertion by Miller that, through inadvertence, he took no steps to comply with the status notice is not sufficient. There is no explanation of why he failed to do so. Did he actually intend to set the action down as required or, at the very least, seek an extension of time? Was the dismissal date not diarized as it should have been in the ordinary course? Did Miller forget about the notice after receiving it? Was he preoccupied with other matters? Was he distracted by the possible negligence claim arising from the limitation defence? There is no specific evidence before the court to rebut the inference that the status notice and the set down date were simply ignored. The onus is on the plaintiffs to provide such evidence and they have not done so.
[38] The plaintiffs have therefore failed to satisfy this element of the Reid test.
LITIGATION DELAY
[39] The court is generally not concerned with pre-litigation delay when considering this factor. The Reid factor in relation to litigation delay, as adopted by the Court of Appeal, only references delay in the progress of the litigation after the action has been commenced. However, in my view, pre-litigation delay may be a relevant consideration in some cases when it comes to prejudice. I will address this issue below.
[40] In my view, there have been several significant and unexplained periods of delay since this action was commenced. This action was active for almost 30 months before it was dismissed by the registrar. Other than serving the statement of claim in a timely manner, the plaintiffs have done nothing to move this litigation forward in terms of the usual steps set out in the Rules. Only Symons has delivered a defence at that was on his own initiative. At no time was a defence demanded by the plaintiffs from any of the defendants and nor were any of the defendants noted in default. The plaintiffs have not proposed a discovery plan and nor did they respond to the discovery plan proposed by Symons. Consequently, there has been no documentary or oral discovery to date. It appears that the plaintiffs may have obtained at least two opinions of value with respect to the Parcel but those opinions were not served as formal expert reports. In fact, the Coldwell Banker opinion expressly states that it is not to be used in court as an expert report. There is no evidence that any other experts have been consulted or retained.
[41] The plaintiffs’ primary explanation for the delay is that they were concentrating on settling with the estate and Willo. I agree that in certain circumstances such action may amount to a satisfactory explanation of the litigation delay. For example, if the settlement with the estate and Willo would serve to simplify the issues to be resolved in the balance of the litigation. However, such a result has not been achieved in this case. The plaintiffs continue to argue that all of the issues remain on the table and that they fully intend to pursue all of their claims. In my view, it was reasonable for Symons to believe that once the settlement with Willo and the estate was concluded, the only remaining issue would be the sale of the Parcel. This is precisely what Miller said in his letter of April 2, 2009 and Mr. Bennett’s letters in response are consistent with that understanding. In my view, Symons was agreeable to the delay on the part of the plaintiffs in moving forward with this action on the understanding that the settlement would simplify the issues to be tried.
[42] However, the plaintiffs now take a very different position. Vogrin now states that he never instructed Miller to consent to a settlement of any of the claims with respect to Symons or Graydon and Eva and that he still intends to pursue all claims. The net effect of this is to diminish any benefit obtained from the settlement with the estate and Willo. While there are fewer parties, the issues remain the same.
[43] I am also not satisfied that there exists a reasonable explanation for why the settlement took so long to put in place. Miller first indicated that settlement discussions were underway in April, 2009. The settlement documents were signed by Willo and the estate in September, 2009 but Vogrin does not sign until March, 2010. In December, 2009, Miller wrote to Bennett and said that the action had been settled with Willo and the estate and that he wanted to get the “process underway”. However, there is no evidence that he did anything to follow through on that promise other than sending one letter to Mr. Bennett in March, 2010. An entire year goes by after Miller advised Mr. Bennett that the settlement had been completed before Miller meets with Vogrin to advise him to retain other counsel. Mr Martini argued that perhaps Miller was unsure of what to do given the limitation defence set out in Symons’ statement of defence. However, Miller knew that at least some of the defendants were asserting such a defence as early as September, 2008 when he was first contacted by Ms. Hodis.
[44] I am not satisfied that the plaintiffs’ pursuit of a settlement with the estate and Willo amounts to a satisfactory explanation for the litigation delay in the circumstances of this action. Moreover, even if it was a satisfactory explanation, there is no explanation whatsoever for the delay from December, 2009, by which time the settlement had been concluded, to December, 2010 when Miller advised Vogrin to retain new counsel.
[45] There is also some suggestion in Vogrin’s evidence that the delay in pursing the action was a result of Miller conducting a detailed review of the matter or because it was complicated and Miller needed a precedent and needed to consult with other counsel. In my view, none of those explanations is sufficient. This court, and the counsel who appear before it, deal with complex and difficult litigation on a regular basis. If a lawyer does not have the expertise to deal with a particular piece of litigation then it should be referred to one who does.
[46] Finally, Vogrin argues that Miller was waiting for documents from Symons. Symons’ evidence is that he provided copies of his relevant documents to Miller in January, 2009. However, even if Symons had failed to provide the necessary documents, such a fact is not a satisfactory explanation for delay. If documents are not forthcoming, a plaintiff can demand an affidavit of documents or bring a motion. Simply sitting back and waiting is not a satisfactory approach.
[47] As the Court of Appeal noted in Wellwood, the party who commences an action bears the primary responsibility for its progress.[^13] Moreover, in my view, the burden on a plaintiff to move an action forward is especially strong when the litigation in question involves events that took place many years before. When litigation involves issues that are more than a decade old and when one of the two central parties has already passed away, a plaintiff cannot sit back and wait for something to happen. He or she must proceed with alacrity. In such situations, the court should be much less willing to indulge litigation delay than it might be when the events giving rise to the claim are of a recent vintage.
[48] In my view, in the circumstances of this action, the plaintiffs have failed to satisfy this element of the Reid test.
PREJUDICE
[49] I am not satisfied that the plaintiffs have met the onus placed upon them to rebut the presumption of prejudice. Where a limitation period has passed, as it has here under the Limitations Act, 2002, S.O. 2002, c. 24, Schedule B (the “Limitations Act”), there is a presumption of prejudice and the onus rests with the plaintiffs to rebut that presumption. The strength of this presumptive prejudice increases with the passage of time.[^14]
[50] The operation of this factor was succinctly summarized by Master Dash in Vaccaro v. Unifund Insurance Co., 2011 ONSC 5318 (Master). At paragraph 22 of Vaccaro, Master Dash states as follows:
The presumption arises when an action is dismissed after the passage of a limitation period, even if the action was commenced within the applicable limitation period. Because memories of witnesses fade over time a presumption of prejudice would arise after passage of an inordinate length of time after a cause of action arose or after an applicable limitation period has passed. The force of the presumption [...] will depend on the time which has passed after the expiration of a limitation period as well as on the nature of the action. While the presumption will speak as a barely audible caution immediately after a limitation period has expired, it may command with increasing imperativeness on the passage of a substantial time, depending on the cause of action.
[51] In my view, the strength of the presumptive prejudice is quite strong in this case as a result of the many years that have passed since the events that give rise to this action took place. Vogrin and Donald began their business relationship in 1987. Vogrin’s own evidence is that he first became concerned about Donald’s dealings with the Property and the operation of the Corporation as early as 1990. He made a demand in writing for certain accounting and other documents in 1995. He retained Miller in 2003. The Parcel was sold to Graydon and Eva in 2004. Donald passed away in 2006. Symons is now 75 years of age and retired. Graydon is in poor health and suffers from memory problems. Willo’s memory is fading. In my view, these factors lead to a very strong presumptive prejudice. As Justice Cronk noted in Wellwood at paragraph 72:
[A]s the memories of witnesses fade over time, the passage of an inordinate length of time after a cause of action arises or after an applicable limitation period expires gives rise to trial fairness concerns. In my view this is so even when timely notice of the claim has been provided.
[52] A plaintiff can overcome this presumption by leading evidence that all relevant documents have been preserved, that key witnesses are available or that certain aspects of the claim are not in issue.[^15] The evidence regarding the preservation of documents is unclear. Vogrin states that he has “not received all documents from Symons which are relevant to the transactions”. Symons’ evidence is that in 2003 and 2004 he had difficulty obtaining information from Donald due to his diminished capacity and illness. However, he also states that he did, through Mr. Bennett, provide relevant documents to Miller in early 2009. It appears, therefore, that his files are still available.
[53] However, it appears from Graydon’s evidence that any documents that may have been in Willo’s possession have now been discarded. There is no evidence as to whether those discarded documents included Donald’s files. At the very least, it is clear from the evidence that at least some relevant documents have not been preserved. I note that the plaintiffs appear to have made no effort to obtain documentary production from Willo and the estate before agreeing to settle those claims. It would have been prudent to do so given that this matter was proceeding against the remaining parties.
[54] In addition, an important witness is no longer available. Donald passed away in June, 2006. Although this was before this litigation was commenced, the fact remains that he is not available to give evidence. The plaintiffs knew this when they started this action. The fact that Donald was deceased should have resulted in the plaintiffs and their counsel being even more diligent in pursuing their claims and in complying with the Rules.
[55] I am also satisfied that the defendants have demonstrated actual prejudice. Graydon is suffering from very serious medical problems. He is unable to work. His medical condition initially required him to use narcotic pain medications. He suffers from memory problems. According to his doctor, his decision making skills have diminished over the last three years. He has not worked since 2008 and lives on $500.00 per month. Had this action been commenced when Vogrin first retained Miller, and Graydon was still working, he would have been in a better financial position and therefore better able to defend himself.
[56] Symons also argues that he will suffer actual prejudice if the action is revived. Symons is now 75 years old and has given evidence that his ability to recall the events in issue has declined over time. The Parcel was sold to an arms’ length purchaser by Graydon and Eva on April 9, 2010. They were able to do so because the plaintiffs had failed to attempt to secure the Parcel by obtaining a certificate of pending litigation. Symons argues that he is prejudiced by the fact that the Parcel is no longer available to secure the plaintiffs’ claims if they are successful. Finally, Symons relied on Miller’s statements that the action had been settled with the estate and Willo and that only the issues regarding the Parcel remained extant. Consequently, he did not initiate a crossclaim against the estate and Willo and he is now precluded from doing so by operation of the Limitations Act. In my view, all of these factors suggest that the defendants’ right to a fair trial would be in jeopardy.
[57] Mr. Martini argued that all of this prejudice was present when the action was dismissed. No further prejudice, presumed or otherwise, has arisen since the dismissal date. While this may be true, it is my view that the prejudice analysis goes beyond what may have taken place after the action was dismissed. Reid makes it clear that the prejudice in question can arise as a result of the plaintiffs’ delay or as a result of steps taken after the dismissal.[^16] It is also clear from the decision of the Court of Appeal in Wellwood that a consideration of the passage of time from the date of the events giving rise to the litigation is an appropriate part of the prejudice analysis, within the contextual framework.[^17]
[58] As a result, it is my view that the plaintiffs have failed to satisfy this element of the Reid test.
THE MERITS OF THE ACTION
[59] In my view, the merits of the action should not ordinarily be considered on a motion to set aside an administrative dismissal.[^18] However, the merits may be an appropriate consideration where the evidence is clear and unchallenged.[^19]
[60] Such a consideration is appropriate on this motion, at least with respect to a portion of the plaintiffs’ claims. The impugned transaction involving the Parcel took place on June 1, 2004. Vogrin knew about the transaction shortly thereafter. His evidence is that in 2004 he was urging Miller to obtain a certificate of pending litigation to be registered on title to the Parcel. Clearly Vogrin must have known at that time that he had a potential claim in respect of the Parcel and yet this action was not commenced until 2008, well beyond the applicable two year limitation period. In my view, the plaintiffs’ claims with respect to the Parcel are almost certain to fail. This is an appropriate factor to consider within the contextual framework and it militates against setting aside the dismissal order.
CONCLUSION
[61] In deciding motions of this nature the court is to apply a contextual approach in which the court weighs all relevant factors to determine the result that is just in the circumstances. It is not necessary for the moving party to rigidly satisfy all of the Reid factors and any other relevant factors. Of the factors the court is to consider on motions such as this, prejudice is the key consideration.
[62] In my view, it is just, in the circumstances of this action, that the plaintiffs’ motion be dismissed. The plaintiffs have failed to satisfy three of the four Reid factors. Most importantly, the plaintiffs have failed to rebut the presumption of prejudice and the defendants have demonstrated that they would suffer actual prejudice in the event that this action is allowed to continue. In addition, it is my view that the plaintiffs’ claims with respect to the Parcel are almost certainly statute barred.
[63] It is never easy to deny a plaintiff a right to have his or her action determined on its merits. Vogrin’s evidence is that he always intended to pursue this claim and instructed Miller accordingly. He assumed that Miller would take the necessary steps to protect his interests. It is true that on motions of this nature the court should be concerned primarily with the rights of the litigants and not the conduct of their counsel.[^20] However, in some situations, the court should not be seen to be condoning actions by a lawyer that are clearly inconsistent with important objectives of the justice system. As Justice Sharpe noted in Giant Tiger at paragraph 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.
[64] In my view, this principle is in play in this action. The excessive delay from the time of the events giving rise to this claim is simply unacceptable.
ORDER
[65] I therefore order as follows:
(a) the plaintiffs’ motion is dismissed; and,
(b) if the parties are unable to agree on the issue of costs, they may make brief written submissions by no later than March 26, 2012.
Master R.A. Muir
DATE: March 12, 2012
[^1]: Scaini v. Prochnicki, 2007 ONCA 63, [2007] O.J. No. 299 (C.A.); Marché D’Alimentation Denis Thériault Lteé v. Giant Tiger Stores Ltd., 2007 ONCA 695, [2007] O.J. No. 3872 (C.A.); Finlay v. Van Paassen, 2010 ONCA 204, [2010] O.J. No. 1097 (C.A.); Wellwood v. Ontario (Provincial Police), 2010 ONCA 386, [2010] O.J. No. 2225 (C.A.); Hamilton (City) v. Svedas Koyanagi Architects Inc., 2010 ONCA 887, [2010] O.J. No. 5572 (C.A.); Machacek v. Ontario Cycling Assn., 2011 ONCA 410, [2011] O.J. No. 2379 (C.A.); Aguas v. Rivard Estate, 2011 ONCA 494, [2011] O.J. No. 3108 (C.A.).
[^2]: Reid v. Dow Corning Corp., [2001] O.J. No. 2365 (S.C.J. – Master), reversed on other grounds [2002] O.J. No. 3414 (Div. Ct.).
[^3]: Scaini at paragraphs 23 and 24.
[^4]: Giant Tiger at paragraph 12.
[^5]: Scaini at paragraphs 23 and 24.
[^6]: Scaini at paragraph 24.
[^7]: Finlay at paragraph 28.
[^8]: Wellwood at paragraph 60.
[^9]: Wellwood at paragraph 60.
[^10]: Giant Tiger at paragraph 12.
[^11]: Wellwood at paragraph 48.
[^12]: Finlay at paragraphs 32 and 33 and Giant Tiger at paragraph 28.
[^13]: Wellwood at paragraph 48.
[^14]: Wellwood at paragraph 60.
[^15]: Wellwood at paragraph 62.
[^16]: Reid at paragraph 41.
[^17]: Wellwood at paragraph 81.
[^18]: See my discussion of this issue in Tribar Industries Inc. v. KPMG LLP, 2011 ONSC 1699 (Master) at paragraphs 34-39.
[^19]: Tribar at paragraph 39.
[^20]: Finlay at paragraph 33.```