ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-08-41500,
CV-08-41500A1

DATE: 20121012

BETWEEN:

MARTINE PATRIARCKI
Plaintiff

– and –

CARLETON CONDOMINIUM CORPORATION NO. 621 and COMBUSCO ENTERPRISES LTD. c.o.b. IDEAL COMBUSTION
Defendants

– and –

SHIELDS MECHANICAL INC.
Third Party

Martine Patriarcki, self-represented

Louise Morel, for the Defendant Ideal Combustion
John E. Summers, for the Defendant Carleton Condominium Corporation No. 621

HEARD: October 2, 2012

DECISION ON MOTION

JAMES J.

[ 1 ] The Plaintiff moves to set aside the registrar’s dismissal of this action for delay with costs.

[ 2 ] The Plaintiff claims that she has sustained personal injuries as a result of a defective gas fire appliance located in her condominium unit. The allegations date back to 2006. The statement of claim was issued in 2008. At a case conference on April 19, 2010 the Plaintiff was ordered to set action down for trial by May, 2011.

[ 3 ] At a status hearing on April 5, 2011 the deadline to set the action down for trial was extended to June 1, 2012. The revised deadline was not met.

[ 4 ] In addition, discoveries were not completed by September, 2010 as originally ordered, or by November, 2011 as subsequently ordered. The examination for discovery of the Plaintiff commenced in August, 2011 and resumed in February, 2012. The Plaintiff has unanswered undertakings that still need to be addressed. There is no evidence that the failure to complete the examination of the Plaintiff in August 2011 was the fault of the Plaintiff.

[ 5 ] The Plaintiff is currently acting in person. She has had a succession of four lawyers acting for her at different times during the course of this lawsuit. She is embroiled in disputes with at least some, if not all, of them. There are pending cross-motions by the Defendants seeking summary dismissal of the Plaintiff’s claim if the registrar’s dismissal is set aside.

[ 6 ] The Plaintiff advises that she has experienced great difficulty in her efforts to secure representation and it is uncertain whether she will ultimately be successful in finding someone to take her case. Some of her documentation remains with former lawyers. She says that it will be difficult for her to respond to the cross-motions and to answer her outstanding undertakings without access to this documentation.

[ 7 ] It is also uncertain whether the Plaintiff is well enough physically to conduct the litigation on her own. Moreover, she has a naive and unrealistic view of the role of litigants engaged in the adversarial process and this is clearly a source of frustration for her.

[ 8 ] The legal factors to take into account in assessing whether the dismissal of the action ought to be set aside are:

(i) an explanation for the litigation delay;

(ii) inadvertence in missing the deadline;

(iii) diligence in moving to set aside the dismissal;

(iv) prejudice to the Defendant.

[ 9 ] The cases make it clear that in exercising judicial discretion following a registrar’s dismissal, the court is to apply a contextual approach. The above factors need not be rigidly applied but ought to be taken into account in determining whether relief ought to be granted.

Explanation for the litigation delay

[ 10 ] The fact that the Plaintiff has engaged four lawyers to date has obviously resulted in delays. The Plaintiff is quick to criticize others for her current predicament and it may be significant that her former lawyers have all chosen to withdraw as opposed to having their retainer terminated by the Plaintiff. It is understandable that it becomes more difficult and takes longer to secure new representation each time a lawyer ceases to act. Also, the Plaintiff reports continuing health difficulties. I do not have the impression that the Plaintiff has intentionally delayed the timely prosecution of the action and in my view, the delay has been explained.

Inadvertence in missing deadline

[ 11 ] The Plaintiff deposes she was not made aware of the pending dismissal by her lawyer. Counsel for the Defendant Ideal Combustion says in argument that the Plaintiff was present at the hearing where the dates were set but this is not in evidence.

[ 12 ] The knowledge of one’s counsel is deemed to be knowledge of the client but here the lawyer has ceased to act by early April, 2012. The state of awareness of the Plaintiff of the pending dismissal is unclear.

Diligence in moving to set aside dismissal

[ 13 ] Immediately upon becoming aware of the dismissal, the Plaintiff acted quickly to seek relief.

Prejudice

[ 14 ] Prejudice to the Defendants may be presumed as time passes. The presumption is rebuttable. The Plaintiff says that much of the evidence is documented and the presence of a thorough documentary record minimizes the risk of prejudice. The defence witnesses remain available. The Defendants do not assert that they have sustained actual prejudice.

Disposition

[ 15 ] In the result, I am satisfied that the registrar’s order dismissing the action ought to be set aside. The Defendants are directed to schedule a case conference forthwith to time line any procedural issues, including the pending cross-motions.

[ 16 ] On the issue of costs, counsel for Ideal Combustion presented a costs outline and referred to the decision of Master R. A. Muir in Taheem v. Palmer et. al., 2012 ONSC 2914. There, a dismissal order was set aside but a substantial costs order was made in favour of the Defendants. Factors included inattentiveness of Plaintiff’s counsel to issues regarding the service of the statement of claim, inconsistent affidavits respecting service, the fact that the Plaintiff was granted an indulgence by the setting aside of the dismissal and the view that it was not unreasonable for the Defendants to oppose the motion.

[ 17 ] In this case, two time limits were exceeded but the Plaintiff’s contention that she has diligently sought new representation was unchallenged. In addition, there is a suggestion that the Plaintiff has been impeded by difficulties in gaining possession of documents in the hands of her former lawyers. While I understand the decision of the Defendants to oppose the motion, this is not an appropriate case to grant relieve to the Plaintiff yet award costs to the Defendants.

The Hon. Mr. Justice James

Released: October 12, 2012

COURT FILE NO.: CV-08-41500,
CV-08-41500A1

DATE: 20121012

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: MARTINE PATRIARCKI Plaintiff – and – CARLETON CONDOMINIUM CORPORATION NO. 621 and COMBUSCO ENTERPRISES LTD. c.o.b. IDEAL COMBUSTION Defendants – and – SHIELDS MECHANICAL INC. Third Decision on Motion James J.

Released: October 12, 2012