SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 05-CV-296634
MOTION HEARD: July 23, 2012

RE: Sukrija Bacvic v. Toronto Transit Commission, Terry N. Neuman and TTC Insurance Company Limited

BEFORE: MASTER R.A. MUIR

COUNSEL: Sidney J. Silverman for the plaintiff Chad Townsend for defendants

REASONS FOR DECISION

[ 1 ] The plaintiff brings this motion pursuant to rule 48.11 (b) of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194 (the “Rules”) for an order restoring this action to the trial list. This action was struck from the trial list due to the plaintiff’s failure to submit a completed trial certification form to the trial office after this action was set down for trial. The defendants oppose the granting of the relief requested by the plaintiff.

[ 2 ] The plaintiff is 76 years of age. On April 14, 2004, while riding his bicycle, he was struck by a bus owned by the defendant Toronto Transit Commission. This action was commenced on September 9, 2005. Pleadings have been exchanged as have affidavits of documents and productions. Oral discovery has been completed and a mediation session has taken place. This action was set down for trial on April 15, 2009.

[ 3 ] It appears that during the course of the mediation session held on May 28, 2009, a difference of opinion arose between the plaintiff and his lawyer, Gerald Sternberg. The plaintiff apparently advised Mr. Sternberg at the mediation that he no longer wanted him to act as his lawyer.

[ 4 ] At some point in mid-July 2009, the trial office sent a certification form to Mr. Sternberg. The form required Mr. Sternberg to consult with counsel for the defendants with respect to various issues in relation to the pre-trial and trial and submit a completed version of the form to the trial office by April 30, 2010. Mr. Sternberg wrote to the plaintiff on July 22, 2009 confirming their discussions at the mediation and alerting him to the deadline for filing the completed certification form.

[ 5 ] It appears that over the course of the next 18 months the plaintiff made several attempts to retain new counsel. Mr. Sternberg was contacted by at least two lawyers who were considering whether to act on the plaintiff’s behalf in this matter. Ultimately no other lawyer appeared to be prepared to act for the plaintiff. As a result, Mr. Sternberg advised the plaintiff in February 2011 that he would agree to resume acting on his behalf if the plaintiff could arrange for medical and other expert witnesses to attend at the trial without a personal guarantee of payment from Mr. Sternberg. It appears that the plaintiff was eventually able to do.

[ 6 ] Of course, the deadline for submitting the certification form had long since passed and this action had been struck from the trial list. On June 23, 2011, Mr. Sternberg wrote to counsel for the defendants seeking her clients’ consent to an order restoring this matter to the trial list. On June 24, 2011, counsel for the defendants advised that her clients had declined to provide such consent.

[ 7 ] Nothing further was done for another nine months until notice of this motion was served on March 9, 2012. Mr. Sternberg’s evidence is that during this period of time the plaintiff continued to secure the attendance at trial of potential witnesses and only once Mr. Sternberg was satisfied that the plaintiff had done so was this motion prepared and served on the defendants.

[ 8 ] The parties agree that the test to be applied on a motion of this nature is set out in the decision of Master Dash in Williams v. John Doe , 2012 ONSC 2514 (S.C.J. – Master). [1] At paragraph 4 of his decision Master Dash sets out the factors to be considered as follows:

(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?

[ 9 ] The defendants do not suggest that the plaintiff’s delay has been intentional or contumelious. As a result, the analysis then shifts to a consideration of whether there has been inordinate and inexcusable delay for which the plaintiff or his lawyer is responsible. I agree with the defendants and Master Dash that the period of delay the court should consider commences on the date the plaintiff was first in a position to set pre-trial and trial dates and runs to the date the motion record was served. See Williams at paragraph 10 . In this case the period of delay is approximately 31 months from July 2009 to March 2012. I consider such an extended period of delay in selecting pre-trial and trial dates to be inordinate, especially in the context of the circumstances of this action. This action is nearly seven years old. The incident giving rise to the action took place more than eight years ago. This action was previously dismissed for delay by the registrar. I note that Master Dash found that the 32 month delay in Williams was inordinate. See Williams at paragraph 13 .

[ 10 ] It is also my view that the plaintiff has not provided a reasonable explanation for the delay. The plaintiff was fully aware of the necessity of completing and submitting the certification form on a timely basis. The requirement to do so is explicitly set out in Mr. Sternberg’s letter to the plaintiff of July 22, 2009. While the plaintiff appears to have made several attempts to retain new counsel, it is also clear that he simply allowed the deadline for filing the certification form to pass without even attempting to consult with the defendants or contacting the trial office. Mr. Sternberg’s evidence is that the plaintiff has limited financial resources and a limited understanding of English. However, I note that the plaintiff has been in Canada for many years and was working for at least a portion of that time. He was examined for discovery without the assistance of an interpreter. More importantly, there is no direct evidence from the plaintiff himself that he did not understand the contents of Mr. Sternberg’s July 22, 2009 letter or that he was unaware of the requirement to submit the certification form on a timely basis. There is no evidence from the plaintiff that his financial circumstances prevented him from doing so. Overall, I am simply not satisfied that the plaintiff has provided a reasonable explanation for the delay.

[ 11 ] The plaintiff’s delay gives rise to a presumption of prejudice due to the passage of time and the expiration of the applicable limitation period. The onus is on the plaintiff to rebut that presumption. I am satisfied that he has done so. Medical and other documentary evidence has been provided. As far back as 2006, the plaintiff provided the defendants with authorizations permitting his medical providers to release any and all documents and information to the defendants. The evidence shows that the defendants acted on those authorizations and obtained such documents and information, at least to their partial satisfaction. The plaintiff was examined for discovery and the transcript is available. The evidence from Mr. Sternberg is that the plaintiff has been in contact with his key witnesses and has secured their commitment to appear at the trial. Indeed, this is the basis for Mr. Sternberg’s willingness to continue acting for the plaintiff.

[ 12 ] The defendants argue, however, that they have suffered actual prejudice. They point out that the plaintiff’s family doctor is now deceased. However, he passed away in March 2009, before the commencement of the period of delay to be considered by the court on this motion. If the defendants are prejudiced by the delay, it must be occasioned by the delay in obtaining pre-trial and trial dates and not due to events that took place before that period of delay. See Williams at paragraph 10 .

[ 13 ] The defendants argue more vigorously that they are prejudiced by the fact that certain pre-accident radiological studies have not been provided to date and may no longer be available. There is some indication in the evidence that the plaintiff had a pre-existing condition with respect to his back, arms and shoulders for which he sought medical treatment between 1999 and 2002. The defendants have received at least some records relating to the plaintiff’s pre-accident medical condition. This is made clear in a letter from counsel for the defendants to Mr. Sternberg dated July 31, 2006 which expressly refers to such records. However, it is also clear that certain radiological studies have apparently not been provided despite several requests from the defendants. I find it impossible to determine from the evidence whether or not those missing records existed in July, 2009. For example, one of the plaintiff’s pre-accident treating physicians, Dr. Donald Turner, has responded to Mr. Sternberg by stating that no examination of the plaintiff was carried out by him at Sunnybrook and, as result, no records are available. I also note that although the defendants made several requests for the pre-accident radiological studies, they chose not to follow up with a Rule 30.10 motion after being told by the plaintiff that he did not have the records in question. Finally, it is noteworthy that the pre-accident medical records that have been produced refer to the plaintiff’s pre-existing condition as “unremarkable”, “normal” and “insignificant”.

[ 14 ] It is important to remember that the test under Rule 48.11 has been imported from the test on a motion to dismiss an action for delay. The prejudice to the defendants must be such that it “ gives rise to a substantial risk that a fair trial might not now be possible”. See Armstrong v. McCall , 2006 17248 (ON CA) , [2006] O.J. No. 2055 (C.A.) at paragraph 11 . In my view, the simple fact that certain radiological studies may no longer be available does not give rise to such prejudice, given that at least some pre-accident medical documentation has been produced and the condition in question does not appear to have been serious. At this stage of the analysis, the onus is on the defendants to show actual prejudice. As the Court of Appeal affirmed in Armstrong at paragraph 11 , a defendant must lead “ convincing evidence of actual prejudice”. I simply do not see these missing radiological studies as sufficiently convincing to lead me to conclude that there is a substantial risk that a fair trial might not now be possible.

[ 15 ] Finally, the defendants have not stated that any of their witnesses are no longer available or that any of their documents have gone missing.

[ 16 ] In my view, the defendants have not established actual prejudice.

[ 17 ] I therefore order that this action be restored to the trial list. Although the plaintiff has been successful on this motion, he has been granted an indulgence. The usual rule that costs should follow the event should not apply. The plaintiff let this matter stagnate for nearly three years without a satisfactory explanation. The delay before the action was set down was also longer than necessary and the plaintiff was given an earlier reprieve when the registrar’s order dismissing his action for delay was set aside. Under the circumstances, the defendants’ opposition to this motion was reasonable. In my view, the plaintiff is not entitled to costs.

[ 18 ] The defendants argued that even if they were unsuccessful, they should receive their costs of this motion. While such an order is appropriate in certain circumstances, I do not view the conduct of the plaintiff as meriting the court’s disapproval with a punitive costs order. The plaintiff simply failed to take the necessary steps to advance this action after his falling out with Mr. Sternberg. Nothing was done by the plaintiff that could be described as improper or deliberate. In my view, it is fair and reasonable in the circumstances that there be no order with respect to the costs of this motion.

Master R.A. Muir

DATE: July 25, 2012

[1] I am advised by counsel that Master Dash’s decision is currently under appeal but no date has yet been set for the hearing of the appeal.