COURT FILE NO.: 01-4314
DATE: 2012/09/25
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Virginia Baylis, Plaintiff
AND:
Motor Vehicle Accident Claims Fund, Cunningham Lindsay Canada Ltd., and Lisa Bodeman, Defendants
BEFORE: Parayeski J.
COUNSEL:
William G. Scott, Counsel for the Plaintiff
Harold W. Sterling, Counsel for the Defendants
HEARD: July 20, 2012
ENDORSEMENT
[ 1 ] The plaintiff moves for an order setting aside the Registrar’s administrative dismissal order dated July 15 th , 2011, and restoring the action to an assignment court list.
[ 2 ] The action derives from a 1998 pedestrian-motor vehicle accident. It followed a tortured history, moving slowly through the system until it, together with three other related actions, was ordered to be placed on the trial list scheduled to commence in November 2010.
[ 3 ] On August 31 st , 2010, I granted a consent order dismissing a number of claims advanced in the present action and striking the action from the trial list.
[ 4 ] On March 31 st , 2011, the court issued a status notice. Counsel for the plaintiff failed to file a request for a status hearing. On July 15 th , 2011, the Registrar signed an administrative order dismissing for delay.
[ 5 ] Defence counsel refused to consent to an order setting aside the Registrar’s order, and the plaintiff brought the within motion on February 1 st , 2012.
[ 6 ] It is settled law that I should adopt a contextual approach when considering a motion such as this one. While all relevant factors are to be considered, four elements are considered primary. They are:
- An explanation for the litigation delay;
- Inadvertence in missing the deadline; and
- Whether the motion was brought promptly; and
- Any prejudice to the defendant.
[ 7 ] Taking that contextual approach, I am satisfied on balance that the plaintiff should have the relief she seeks. This matter should be dealt with on its merits. I shall address the four key elements below:
- Explanation of the Litigation Delay
[ 8 ] While there can be no doubt that this matter has not moved forward with anything approaching alacrity, some of the delay rests with the defendants. I am fully aware that the plaintiff bears primary responsibility for prosecuting her action in a timely fashion. However, the defendants here were more than passive bystanders while time appeared to stand still or even be turned back. Having finally seen this matter placed on a trial list for November 2010, the defendants then consented to an order which, inter alia , struck the action from that list. It appears that the defendants did so for valid tactical reasons. The quid pro quo for their consent seems to have been the abandonment by the plaintiff of several of the heads of damages set out in her statement of claim.
[ 9 ] A party takes the consequences, good and bad, of tactical decisions. The bad, in this case, was losing a trial date and participating in the delay of which the defendants complain.
- Inadvertance in Missing the Deadline
[ 10 ] Here, plaintiff counsel asserts that he intended to request a status hearing, but did not do so because a clerk “failed to file the proper materials further to receiving the status notice”. I am not convinced by the defendant’s argument that the plaintiff or her counsel “effectively abandoned the file” at this critical stage. That would require speculation rather than consideration of the evidence before me.
- Whether the Motion was Brought Promptly
[ 11 ] There is no evidence which suggests that the plaintiff did not receive the Registrar’s order within days of its having been issued on July 15 th , 2011. Her counsel waited until December 8 th , 2011, to ask the defendants to consider restoring the matter to a trial list on consent. That consent was not forthcoming, and the present motion was issued on February 1 st , 2012. While clearly the motion could have been brought earlier, the delay involved in doing so is not out of the ordinary. In context, this factor is not fatal to the plaintiff’s position, although it is clearly not its strongest point.
- Prejudice to the Defendants
[ 12 ] The passage of time on the scale involved here invariable leads to some prejudice. Memories do indeed fade. This, however, is an action for accident benefits. The insurer will have inevitably documented the basis for its denial of payment. While Doctor Bednar would likely have difficulty recalling his examination of the plaintiff back in 1998 from memory, as the defendants assert, he will have the benefit of his notes. Given that doctors see multiple patients every day, it seems to me that most of them are required to rely on their notes for details of examinations regardless of when the patient was seen. That is why they keep notes in the first place.
[ 13 ] Weighing all of the factors, I am prepared to grant an order setting aside the Registrar’s order of July 15 th , 2011, and placing this matter on the next available assignment court list.
[ 14 ] Despite “winning” this motion, the plaintiff has asked for and received the court’s indulgence, and is not entitled to the costs of her motion. Order accordingly.
Parayeski J.
Date: September 25, 2012