SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 05-CV-287486

MOTION HEARD AND REASONS RELEASED : March 29, 2012

RE: DENISE WILLIAMS v. JOHN DOE DRIVER and TORONTO TRANSIT COMMISSION

BEFORE: Master R. Dash

COUNSEL:
David Fenicky, for the plaintiff

Chad Townsend, for the defendants

ENDORSEMENT (Transcribed)

[ 1 ] This is an opposed motion for leave to restore the action to the trial list under rule 48.11(b). Mr. Townsend argues that the test and factors to be considered are those set out in the case law for a show cause at a status hearing under rule 48.14(13) or for motions under rule 37.14 to set aside orders of a registrar who has dismissed an action for delay under rule 48.14(4) or (5) and that rules 48.04 and 60.12 also be considered.

[ 2 ] The test under rule 48.11 has been set out in three recent decisions of this court: Ruggiero v. FN Corp. , [2011] O.J. No. 3732 (Master Graham) at paragraphs 13-19 with the issues to be addressed at paragraph 20; 1351428 Ont. v. 1037598 Ont. , 2011 ONSC 4767 , [2011] O.J. No. 3597 (Backhouse J.) at paragraph 4 and Portelance v. Williams , [2011] O.J. No. 6221 (Kennedy J.) at paragraphs 31 to 37 . The decisions of Backhouse J. and Kennedy J. are binding upon me, although there is a difference in their conclusions.

[ 3 ] At paragraph 32 of Portelance , Kennedy J. suggests a test easy for a plaintiff to meet – whether the plaintiff is now ready for trial unless the defendant proves actual prejudice.

[ 4 ] That test had earlier been argued before Master Graham in Ruggiero and rejected by him at paragraph 13. He accepted that the correct test was analogous to the test under rule 24.01 and in particular the reference to 24.01(1)(e). He relies on the court of appeal decision in Armstrong v. McCaul and summarizes the four issues to be addressed at paragraph 20:

(1) Is the delay intentional or contumelious?

(2) If not, is there inordinate and inexcusable delay for which the plaintiff or his lawyers are responsible such as to give rise to a presumption of prejudice?

(3) If so has the plaintiff provided evidence to rebut the presumption of prejudice arising from the delay?

(4) If so, have the defendants provided evidence of actual prejudice?

[ 5 ] In 1351428 Ont. , Backhouse J. at paragraph 41 adopts the test enunciated by Master Graham holus bolus. It is also the alternate test enunciated by Kennedy J. in Portelance at paragraphs 35-37.

[ 6 ] To choose between two binding decisions, I accept that the correct test is that set out by Backhouse J. who adopted the test set out by Master Graham, a test also considered by Kennedy J.

[ 7 ] This action involves an accident on a streetcar on July 30, 2004 for which TTC has admitted liability (subject to threshold). The action was commenced on April 11, 2005. There was delay caused by the plaintiff in making production and attending discovery. The action was also once dismissed for delay by the registrar on June 23, 2008 for non-compliance with a set down deadline set at a status hearing and restored by the master on November 10, 2008. The trial record was filed on March 18, 2009, within the revised set down deadline.

[ 8 ] On July 6, 2009 the trial office sent out certification forms requiring the plaintiff to obtain pre-trial and trial dates by March 31, 2010 or the action would be struck from the trial list. Counsel discussed numbers of witnesses and trial length and the plaintiff returned the certification form on March 17, 2010, received by the trial office on March 24, 2010. Unfortunately, the plaintiff’s lawyer did not fill in the part of the form listing requested dates for pre-trial and trial, nor did the plaintiff’s lawyer take any steps to contact the trial office to set such dates.

[ 9 ] Because the plaintiff failed to set a pre-trial date by the March 31, 2010 deadline, the action was struck from the trial list, albeit not until August 6, 2010. Although Mr. Lee was the plaintiff’s lawyer, another lawyer in that office, Mr. Akelian swore an affidavit saying that he, Mr. Akelian, discovered on January 12, 2012 that the action was struck from the trial list. He does not say how he made that discovery or whether Mr. Lee had discovered it on an earlier date.

[ 10 ] In my view the period of delay for considering the first two issues of the test is the delay from the time that the plaintiff was first in a position to set pre-trial and trial dates, in this case July 6, 2009 when the certification forms were sent, until the time that the motion to restore was served, in this case March 13, 2012, a period of two years and eight months. It is not in my view the delay from the commencement of the action in April 2005 as suggested by the defendant’s lawyer, nor is it the delay from the deadline set by the trial office as suggested by the plaintiff, in this case March of 2010. If the defendant is prejudiced by the delay, it must be the delay in obtaining a pre-trial and trial date as the trial record was filed within the second deadline imposed by the master.

[ 11 ] (1) Was the delay intentional or contumelious? It is not contumelious as there is no history of flouting court orders other than missing the first set down deadline. The court of appeal in Marché v. Giant Tiger spoke at length of the effect of delay on the administration of justice. The decision is reviewed by Juriansz J.A. in Aguas v. Rivard and although in dissent, he does accurately reflect the decision in Marché . In particular in paragraphs 46-48 the plaintiff in that case had, by putting the file in abeyance and taking no steps to move it forward, effectively abandoned the file, speaking to a deliberate intention not to advance the action. In this case there is absolutely no explanation why no steps were taken for almost 3 years to set a trial and pre-trial date. Although in paragraphs 15-16 Mr. Akelian speaks to inadvertence in not returning the certification form before the March 31, 2010 deadline (although Mr. Lee had indeed done so) he does not refer to inadvertence in not completing the pre-trial and trial selection part of the form or in not otherwise seeking a pre-trial or trial date. It may have been inadvertence. It may have been negligence on Mr. Lee’s part or a failure to understand how pre-trial and trial dates are set, but Mr. Akelian is silent on this issue. There is no affidavit at all from Mr. Lee. The three year passage is equally consistent with holding the file in abeyance. It was the duty of the plaintiff’s lawyers to explain why no steps were taken and they have failed to do so. While I cannot say no steps were taken in the action over the three years since the mediation was conducted a year ago, on March 30, 2011, and offers to settle were made by the plaintiff, however no steps were taken to move the action toward a trial. I conclude that in the absence of evidence of other explanation, the failure to set a pre-trial and trial date over the two years and eight months was deliberate as a result of holding the file in abeyance.

[ 12 ] If correct, that would end the enquiry, but if I am wrong I consider the remaining issues.

[ 13 ] (2) In my view 2 years and 8 months of not seeking a pre-trial and trial date since July 2009 is inordinate, particularly in the context of the delay of over four years in advancing the litigation preceding that. As there has been no explanation for the delay, it is inexcusable.

[ 14 ] (3) Given both the passage of time as well as the expiry of the limitation period, there is a presumption of prejudice. The burden is on the plaintiff to rebut the presumption with an evidentiary record. The plaintiff has provided not a scintilla of evidence to rebut the presumption except for the bald statement that the defendant has not been prejudiced by the delay in restoring the action to the trial list.

[ 15 ] There is for example no evidence that all documentary evidence is preserved (other than references pointed to by the plaintiff in the defendant’s material that certain clinical notes and records were received) and no evidence that medical and lay witnesses are still available and recall their evidence. This is particularly important given that a primary issue in the action is what her career path would have been but for the accident i.e. would she have pursued a career as a practical nurse? Her pre-accident educational and medical evidence becomes important, particularly evidence of other students such as Ms. Williams, whom the defendant has been unable to contact. It would have been the plaintiff’s onus however to ensure evidence that such witnesses were available is provided.

[ 16 ] (4) The presumption of prejudice not being rebutted, there is no onus on the defendants to prove actual prejudice. Had it been necessary for the defendant to do so, I would be of the view that they have failed to show actual prejudice, as their evidence, for example of possible missing witnesses, is speculation, although I accept that they did try to contact Ms. Williams who did not return their call and as such they do not know what she remembers. The defendant has not stated that any of their own witnesses or documents are missing. Although in paragraph 27 of the Qaquish affidavit the defendant lists a number of the plaintiff’s doctors, educators and fellow students they would call as a witness, there is no evidence they are not available. The letter by Mr. Townsend of December 12, 2011 in which he states, after rejecting the plaintiff’s offer, “please move this matter forward to trial” is contraindicative of any actual prejudice to the defendant caused by the delay.

[ 17 ] The plaintiff has failed to meet the test set out in the case law and the motion will be refused.

[ 18 ] I add for the sake of completion that if the primary test suggested by Kennedy J. at paragraph 32 of Portelance is the correct test I would have allowed the motion. The plaintiff’s evidence is that they are now ready to proceed with pre-trial and trial and as noted, the defendant has not demonstrated actual prejudice.

[ 19 ] I add that despite the order made herein, the plaintiff may not be without a remedy to the extent my order resulted from Mr. Lee’s negligence or failure of oversight over this file, as set out by the court of appeal in Marché , in Machacek as well as by Juriansz J.A. in dissent in Aguas .

[ 20 ] As far as the amendment is concerned, notwithstanding that the action has not been restored to the trial list, it has not been dismissed. As the action is extant, and given rule 26.01 permitting the amendment “at any stage” in the absence of non-compensable prejudice, and given that this is correction of a misnomer and Mr. Strickland, the real “John Doe” has known that the litigating finger has pointed at him for some time and that he has already been examined for discovery there is no prejudice caused by the amendment and it will be allowed. No further discovery will be allowed on the amendment.

[ 21 ] ORDER

(1) Relief requested in paragraph 2 is granted.

(2) Relief requested in paragraph 1 is refused.

[Portion of endorsement dealing with costs has not been transcribed.]

“Master Ronald Dash”