ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-10-563-00
DATE: 2012Oct05

BETWEEN:

MARY LINDSAY Plaintiff – and – LINDA LISA SAROLI Defendant

John M. Farant, for the Plaintiff
Sarah L. Coristine, for the Defendant/Moving Party

HEARD: September 6, 2012 at Kingston

TAUSENDFREUND j.

RULING ON MOTION

OVERVIEW

[ 1 ] The Plaintiff moves under Rule 37.14 of the Rules of Civil Procedure (“ Rules ”) to set aside the administrative Order of August 10, 2011 dismissing this action as abandoned pursuant to Rule 48.15(1). The Defendant opposes for a number of reasons which can generally be categorized under the heading of “Alleged Prejudice”.

BACKGROUND

[ 2 ] The Plaintiff commenced this action by Statement of Claim filed November 10, 2010. In her Statement of Claim, she seeks damages of $5,000,000.00 based on an alleged slip and fall by her on November 20, 2008 on property owned by the Defendant in the Town of Dunvegan, in the County of Glengarry-Prescott-Russell. The Plaintiff further pleads that she suffered soft tissue injuries and various impairments from these injuries. She seeks damages for pain and suffering, loss of income and health care expenses.

[ 3 ] The procedural history of the matter is now summarized:

a. November 22, 2010 - Defendant was served with the Statement of Claim.

b. December 7, 2010 – Defendant’s counsel indicated her intent to serve a Demand for Particulars and requested an indulgence for late filing of the Statement of Defence. Plaintiff’s counsel granted the indulgence without requesting a specific date for the filing to be completed.

c. January 21, 2011 - Defendant’s counsel served a Demand for Particulars.

d. January 24, 2011 - Plaintiff’s counsel requested until February 14, 2011 to answer the Demand for Particulars.

e. January 28, 2011 - Plaintiff’s counsel served an Amended Statement of Claim which addressed some, but not all of the requested particulars.

f. February to June 2011 - Discussions and correspondence between counsel regarding:

i. The balance of the requested particulars;

ii. Change of venue requested by the defendant to either Ottawa or Cornwall on the basis that the land in question is closer to both of these municipalities than it is to Kingston; and

iii. Merits of the plaintiff’s claim.

g. June 6, 2011 – Plaintiff’s counsel wrote:

“At this time, I would request that you forward your Statement of Defence in this matter as soon as possible.

Enclosed is a copy of the Notice that the action will be dismissed faxed to my office this afternoon.”

h. June 20, 2011 – Defendant’s counsel responded:

“... I confirm that I am preparing my client’s Statement of Defence and hope to be in a position to serve you by the end of next week.”

i. August 8, 2011 – Defendant’s counsel wrote:

“... I confirm that I am finalizing my client’s Statement of Defence and will have it served and filed by the end of next week.”

j. August 9, 2011 – Plaintiff’s counsel responded:

“... You have still failed to file your Statement of Defence ... If you do not file your defence this week, this matter will be dismissed.

I have instructions to insist that you file your Statement of Defence as soon as possible. ... If you fail to do so, such as this matter is dismissed because you have not filed a defence, I will bring this to [the] attention of the Court and a Motion to have the dismissal set aside.”

k. August 10, 2011 – Order issued dismissing action as abandoned pursuant to Rule 48.15(1) of the Rules of Civil Procedure.

l. August 15, 2011 – Defendant’s counsel responded:

“... It is through inadvertence that a Statement of Defence has not yet been filed. A Statement of Defence will be filed this week. ... You were to speak to your client to obtain instructions to transfer the matter to Cornwall or Ottawa. I can confirm that my client has provided instructions to consent to the transfer of the matter to either Cornwall or Ottawa. I would ask that you kindly confirm as to when we can expect to receive your motion materials for the transfer.

In the event that the matter were dismissed, we would of course consent to the Dismissal Order being set aside.”

m. August 16, 2011 – Defendant’s counsel served the Statement of Defence, Counterclaim and Crossclaim, but did not file the document.

n. August 16, 2011 – Plaintiff’s counsel left a voice mail message requesting that Defendant’s counsel consent to a motion to set aside the Dismissal Order. Defendant’s counsel replied by voice mail message that she would consent to such relief provided the motion included the requested change of venue of the action to Ottawa or Cornwall. Defendant’s counsel states that Plaintiff’s counsel replied with a further voice mail message indicating that he would agree to such a request. Plaintiff’s counsel has no recollection of this purported response. Unfortunately, there is no correspondence to confirm these telephone exchanges.

o. August 29, 2011 – Plaintiff served a Motion Record seeking to set aside the Dismissal Order. The Motion was made returnable September 15 th , but was not filed. As such, the Motion was neither spoken to nor addressed on September 15, 2011, as apparently it did not appear on the docket.

p. August 30, 2011 – Plaintiff’s counsel served a Consent and draft Order to set aside the Dismissal Order of August 10, 2011. Defendant’s counsel did not sign the Consent as the material did not include the change of venue she had requested.

q. September 12, 2011 – Defendant’s counsel wrote:

“Further to the motion materials that you provided to my office, and my previous requests that the motion encompass the transfer of the proceeding, there was no request made to transfer the proceeding in the draft motion materials provided. ... I would ask that you advise as to your client’s position regarding the transfer. In the event that your client is not in agreement with the transfer, I have been instructed to bring a motion to secure the transfer of the file to Ottawa or Cornwall. ...”

r. October 31, 2011 – Plaintiff’s counsel re-served the draft Motion material to set aside the Dismissal Order.

s. November 7, 2011 – Defendant’s counsel wrote:

“Further to the motion materials that you provide to my office on October 31, 2011, and my previous requests that the Motion encompass the transfer of the proceeding, I confirm there was no request made to transfer the proceeding in the new draft Motion materials provided.

I would once again request that you advise as to your client’s position regarding the transfer. In the event that your client is not in agreement with a transfer, I will bring a motion to secure the transfer of the file to Ottawa or Cornwall. …”

t. November 23, 2011 – Plaintiff’s counsel replied:

“… I will recommend we move this matter to Ottawa and ask that you consent to the Motion to set aside the Dismissal Order.”

u. November 25, 2011 – Defendant’s counsel wrote on the issue of the Dismissal Order and change of venue:

“… it is was always our understanding that both would be dealt with in writing at the same time. It was our position that if your client will not consent to the transfer, both motions should be heard at the same time.

Kindly advise as to your client’s position on the transfer.”

v. January 9, 2012 – Plaintiff’s counsel forwarded a Consent and draft Order to set aside the Dismissal Order and to have the action transferred from Kingston to Ottawa.

w. January 25, 2012 – Defendant’s counsel replied to advise that her client was no longer willing to consent to set aside the Dismissal Order based on delay following the issue of the Statement of Claim and on her view that the entire claim was without merit.

x. April 10, 2012 – Plaintiff’s counsel served a Motion Record seeking to set aside the Dismissal Order. It was returnable April 19, 2012. Defendant’s counsel indicated she was not available on April 19 th and the matter was adjourned to May 24, 2012 then to September 6, 2012 when this motion was heard.

ANALYSIS

[ 4 ] In deciding whether an administrative Dismissal Order under Rule 48.15(1) should be set aside, I am guided by the four factors identified by Master Dash in Reid v. Dow Corning Corp. [1] and cited with approval by the Court of Appeal in Marché d’Alimentation Denis Thériault Ltée v. Giant Tiger Stores Limited [2] and Wellwood v. Ontario Provincial Police [3] . The test identifies four factors which the Plaintiff must address:

1. To provide an explanation of the litigation delay.

2. Lead satisfactory evidence to support the position that it was always the intention to set the action down within the time limit and that the deadline was missed as a result of inadvertence.

3. Motion is brought promptly.

4. That the Defendant has not been met with resulting prejudice.

[ 5 ] Referring to this test, the Ontario Court of Appeal in Scaini v. Prochnicki [4] stated at paras. 23-24 that “a contextual approach … is to be preferred to a rigid test requiring an appellant to satisfy each one of a fixed set of criteria.” As noted by Sharpe J.A. in Marché, supra, para[20]:

The four Reid criteria are “likely to be of central importance in most cases,” but they are not exhaustive and “[t]he key point is that the court consider and weigh all relevant factors to determine the order that is just in the circumstances of the particular case.

[ 6 ] The Defendant opposes the relief sought to reinstate the action on the basis that the Plaintiff failed to adequately address the four pronged Reid test. She states that the Plaintiff failed to move the matter forward in a timely fashion by failing to respond to the Demand for Particulars, failed to confirm instructions in a timely manner on the request to transfer the action to Ottawa, and failed to respond to the concerns raised by the Defendant on the purported lack of merits of the claim.

[ 7 ] Defendant’s counsel states that she served a Notice of Intent to Defend February 17, 2011. However, she did not produce a contemporaneous Affidavit of Service, nor was the Notice of Intent filed. Plaintiff’s counsel states that he did not receive such a document. I cannot comment further in light of these conflicting positions, save to say that filing of that document would have averted this entire matter. An administrative Dismissal Order under Rule 48.15 of the Rules would not have issued in the face of a filed Notice of Intent to Defend.

[ 8 ] Plaintiff’s counsel answered some but not all of the requested particulars. He did so in the form of an Amended Statement of Claim. Absent a perceived adequate response to the Request for Particulars, in my view, the appropriate response could and should have been a Motion for Particulars. Such a motion was apparently not contemplated and certainly not brought. As such, counsel for the Defendant on this motion can hardly state that the promised Statement of Defence could not be produced without the benefit of certain particulars which were requested but not provided. That is particularly so, as Defendant’s counsel had acknowledged that the Statement of Defence had not been filed based on inadvertence.

[ 9 ] Plaintiff’s counsel granted the requested indulgence for late filing of the Statement of Defence in December 2010, yet it was not served until eight months later on August 15, 2011. The Dismissal Order had been issued by then. Defendant’s counsel wrote on August 15, 2011 that she would consent to the setting aside of the Dismissal Order. Yet, no such consent ever saw the light of day. For reasons best known to her, Defendant’s counsel then tied her consent to a requested change of venue consent. In light of the initial requested indulgence for late filing of the Statement of Defence, the admitted inadvertence in failing to have filed that document until after the issue of the administrative Notice of Dismissal Order and the Defendant’s offer that she would consent to have that order set aside, the Defendant’s revised position that her consent would then be subject to the Plaintiff’s consent to a change of venue order is difficult to understand. It is not surprising that it took Plaintiff’s counsel until January 9, 2012 to accede that revised position. He was then met with a further change. It was then too late, he was told. The Defendant had changed her mind.

[ 10 ] The Defendant relies in part on Wellwood v. Ontario Provincial Police , supra, opposing the relief sought by the Plaintiff. In my view, Wellwood is factually distinguishable on a number of fronts. Here, the delay was neither intentional nor inordinate. Absent a motion for particulars, I find that the Defendant could and should have served and filed her Statement of Defence before the issue of the administrative Dismissal Order.

[ 11 ] The Defendant states that she was prejudiced as a result of the expiry of the limitation period. In fact, it had already expired when the Defendant was served and then requested an indulgence for late filing of her Statement of Defence. I note that Laskin J. A. in Clairmonte v. Canadian Imperial Bank of Commerce [5] held that: “the expiry of a limitation period prior to the dismissal motion was irrelevant.”

[ 12 ] I find that the Plaintiff adequately met the 4-pronged Reid test. The administrative Dismissal Order would have not issued but for the indulgence for late filing requested by the Defendant. It would perhaps have been more appropriate for Plaintiff’s counsel to have granted the indulgence on the basis of a definite timeline, but that is hindsight.

[ 13 ] An Order will go, under Rule 2.03 and 37.14 of the Rules, setting aside the Administrative Order of August 10, 2011 dismissing this action as abandoned.

[ 14 ] This procedural misadventure came about as a result of the failure of both sides to properly address rules designed to move the litigation process forward with reasonable dispatch. Accordingly, there will be no costs.

Honourable Mr. Justice W. U. Tausendfreund

Released: October 5, 2012

COURT FILE NO.: CV-10-563-00
DATE: 2012Oct05

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: MARY LINDSAY Plaintiff – and – LINDA LISA SAROLI Defendant RULING ON MOTION Tausendfreund J.

Released: October 5, 2012

[1] Reid v. Dow Corning Corp. (2001) 11 C.P.C. (5 th ) 80

[2] Marché d’Alimentation Denis Thériault Ltée v. Giant Tiger Stores Limited , 2007 ONCA 695

[3] Wellwood v. Ontario Provincial Police , 2010 ONCA 386

[4] Scaini v. Prochnicki (2007), 2007 ONCA 63 , 85 O.R. (3d) 179 (C.A.)

[5] Clairmonte v. Canadian Imperial Bank of Commerce , [1970] 3 O.R. 97