SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 08-41528SR
DATE HEARD: September 27, 2012

RE: Thelma Gravelle v. City of Ottawa

BEFORE: MASTER PIERRE E. ROGER

COUNSEL:
Séverin Ndéma-Moussa, for the plaintiff
Ph: (613) 736-4018 Fax: (613) 736-5247

Samantha Montreuil, for the defendant
Ph: (613) 580-2424 Fax: (613) 560-1383

E N D O R S E M E N T

[ 1 ] This is a motion brought by the Plaintiff to set aside the Order Dismissing Action as Abandoned of November 12, 2008, made by the Local Registrar under rule 76.06(2) of the Ontario Rules of Civil Procedure , R.S.O. 1990. Reg. 194 (as it then read).

[ 2 ] This motion came before me on March 13, 2012. The materials were not sufficient. The motion record contained a one page affidavit that did not explain the delay nor address prejudice. Rather than dismissing the motion, I adjourned it endorsing that more information is required to explain the delay and issue of prejudice. The motion returned today.

[ 3 ] The motion is dismissed with costs payable by the Plaintiff to the City of Ottawa.

Background information

[ 4 ] This action is a simplified procedure action issued on May 13, 2008. The Plaintiff seeks damages of about $31,000.00, plus interest and costs, for injuries allegedly sustained on or about May 16, 2002, in the City of Ottawa, as a passenger on an OC Transpo bus. She alleges that the bus driver was driving at an excessive speed and that he negligently stopped too quickly, which caused injuries to her fingers and arm.

[ 5 ] The City served and filed a Notice of Intent to Defend on June 11, 2008. A lawyer for the City wrote to the Plaintiff’s lawyer on July 26, 2008, indicating that he would be away on holidays and that the parties needed to select a mediator. There appears to have been very little communication between the parties from after that up to February 2012.

[ 6 ] Both affidavits for the Plaintiffs, in support of this motion (dated February 28, 2012 and July 23, 2012), are sworn by an administrative assistant of the lawyer for the Plaintiff.

[ 7 ] The Plaintiff’s affidavits make very little reference to how the affiant gained knowledge of the stated facts, other than the usual general statement at the outset that where she has no direct knowledge, she knows from information communicated to her by Mr. Ndéma-Moussa. The affidavit rarely indicates whether she has direct knowledge of a stated fact or whether this is information and belief from Mr. Ndéma-Moussa or from the Plaintiff. For example, at paragraphs 18 and 19, she refers to what the Plaintiff did and believed without explaining how she knows this information. Further, she rarely provides dates for stated events. For example, she states that Mr. Ndéma-Moussa attended at the courthouse to attempt to note the Defendant in default without providing a date. I observe from the court file that the requisition to note default is dated November 14, 2008. She notes that Mr. Ndéma-Moussa immediately called the Plaintiff without providing any date or timeframe. She notes that it was decided to forthwith bring a motion without providing a date or timeframe. She makes reference to an earlier case management motion form without providing a date, without indicating whether it was on notice and without providing any information about how it was dealt with by the Court or how the Plaintiff followed-up other than to indicate that Mr. Ndéma-Moussa was waiting for the Court on the outcome of the motion. She makes reference to an August 2010 motion but makes no reference to whether that motion was served on the Defendant and how the motion was dealt with. Irrespective of evidentiary issues with the Plaintiff’s affidavits, I have considered, for purposes of this motion, the factual information contained in the affidavits.

[ 8 ] By way of summary, the following is taken from the Plaintiff’s factum (note that not necessarily all of this is contained in the affidavits or is properly in evidence before the Court but, as indicated, it was nonetheless considered in deciding this motion):

• Defendant’s lawyer had asked the Plaintiff’s lawyer to give him some time and not to note him in default.
• The Plaintiff received from the court house a notice of dismissal, at her home address and lawyer Ndéma-Moussa was not aware. The Plaintiff did not know the importance of that document.
• It is only when Lawyer Ndéma-Moussa was at the civil counter at the court to ask the court to note the Defendant [in default], that he learnt that a Notice of Dismissal had been sent to the Plaintiff address.
• Plaintiff’s lawyer communicated with the Plaintiff who mentioned that she received a note from the court but she was confused as the document she received was titled “Notice of Action Dismissal (Defence)”. The Plaintiff thought that she was not concerned by this as it was talking about “Defence” as she is not defendant in this action but the Plaintiff.
• Lawyer Ndéma-Moussa took immediate action by filing a motion to set aside the dismissal order by case management form on December 2009.
• Lawyer Ndéma-Moussa was waiting to receive an answer from the court. In August 2009 [August 2010] he filed a motion to set aside the notice of action dismissal.
• Lawyer Ndéma-Moussa was going through a disciplinary proceeding with the Law Society and by August 2010 he communicated with the Plaintiff and told [her] to come and pick his file as he was to be suspended.
• Plaintiff’s lawyer had a condition not to practice civil litigation for a period of a year except under the supervision of another lawyer approved by the Law Society.
• During his suspension the Plaintiff tried to contact him but without success.
• The Plaintiff’s intention was and still is to proceed with this lawsuit. It has been a misunderstanding with her lawyer that she did not come to pick up her file.
• The Plaintiff finally contacted the Law Society and asked them to contact her lawyer.

[ 9 ] Upon reviewing the court file the following is observed:

• May 13, 2008 - Statement of Claim issued
• June 11, 2008 - Notice of Intent to Defend filed
• June 16, 2008 - Notice of Requirement to Mediate
• September 26, 2008 - Notice of Action Dismissal
• November 12, 2008 - Order Dismissing Action as Abandoned
• November 14, 2008 - Requisition to Note Default
• August 11, 2009 - Case Management Motion Form – rejected more information needed is noted on the case history report
• December 31, 2009 - Case management motion form – rejected is noted on the case history report
• August 5, 2010 - Notice of motion – rejected with an endorsement that more materials needed
• The next entry is February 28, 2012 - Affidavit of service and Motion Record
• March 13, 2012 - my endorsement noted above that motion adjourned with more information required
• July 26, 2012 - Plaintiff’s Motion Record

[ 10 ] In an affidavit, sworn September 20, 2012, the lawyer acting for the City in 2008 swears that following sending a letter to the Plaintiff’s lawyer on July 26, 2008, “I did not receive any response from Counsel for the Plaintiff and at no time did Counsel contact me until the Respondent was served with the motion record of the Applicant on or about February 28, 2012.” He indicates that after receiving the dismissal order, he requested that the file be closed on March 2, 2009. It is, as well, a very brief affidavit that unfortunately provides very little information.

[ 11 ] This is a rule 76 action and there was no cross-examination on this motion (which is not permitted under rule 76.04(1) .2). I was not made aware of any request for leave to cross-examine or of any request for an adjournment of the motion to allow the Plaintiff to file an affidavit to respond to the above affidavit by the City. The motion was argued and no such request was made to the Court.

[ 12 ] The affidavit filed for the Plaintiff makes reference at paragraph 8 to several telephone calls to the lawyer for the Defendant requesting a statement of defence prior to Mr. Ndéma-Moussa attending at the court house to attempt to note the Defendant in default, which the court file indicates he attempted to do on November 14, 2008. The Plaintiff has not provided any evidence of communication by any means between the lawyers or parties after November 14, 2008 up to February 2012. During argument of the motion the lawyer for the Plaintiff argued that at least one and maybe more of the earlier motion (pre 2012) had been served on the Defendants but no evidence of any such service is before the Court and this is contradicted by the affidavit filed by the lawyer for the City.

[ 13 ] As a result, considering the evidence, I find that there was no communication between the lawyers or parties dealing with this matter during the period between November 14, 2008 and the end of February 2012, when this motion was served on the City.

Applicable Law

[ 14 ] Rule 76.06(2) provided (at the time):

(2) if defence filed – The registrar shall make an order dismissing an action as abandoned if the following conditions are satisfied, unless the court orders otherwise:

1. More than 150 days have passed since the filing of the first statement of defence or notice of intent to defend.
2. The action has not been disposed of by final order or judgment.
3. The action has not been set down for trial or summary trial.
4. The registrar has given 45 days notice that the action will be dismissed as abandoned.

[ 15 ] Under rule 37.14 (1) a person affected by the order of a registrar may move to set aside or vary the order by a notice of motion that is served forthwith after the order comes to the person’s attention.

[ 16 ] The applicable test is not in dispute and is well summarized in a recent decision of Justice Platana (see Dixon et al. v. Ryan et al. 2012 ONSC 3353 ). As well, see: Reid v. Dow Corning Corp , [2001] O.J. No. 2365 and [2002] O.J. No. 3414 ; Scaini v. Prochnicki (2007), 2007 ONCA 63 () , 85 O.R. (3 rd ) 179; and Marché d’Alimentation Denis Thériault Ltée v. Giant Tiger Stores Ltd. (2007), 2007 ONCA 695 () , 87 O.R. (3 rd ) 660.

[ 17 ] The Court is to adopt a contextual approach and weigh all relevant factors, including the four factors set out in Reid, in order to determine what is just in the circumstances.

Analysis and disposition

[ 18 ] The Plaintiff has not adequately addressed the Reid factors. Particularly, she has not adequately explained the significant delays in bringing the various motions to set aside the registrar’s dismissal and she has not provided sufficient evidence to address the issue of prejudice to the Defendant. The onus to do so is on the Plaintiff.

[ 19 ] None of the affidavits filed by the Plaintiff provide an adequate explanation for the following delays:

a. Between November 14, 2008 and the time when a case management motion form was filed (in August and December 2009);

b. Between the time when the case management motion was filed in August 2009 and December 2009 and August 2010; and

c. Between the time in August 2010 (when at paragraph 14 of the Plaintiff’s affidavit reference is made to a motion being filed to set aside the dismissal) and February 2012 when this motion was served on the Defendant.

[ 20 ] The above are significant delays in bringing this motion for which the explanations provided are not sufficient.

[ 21 ] As a result of these delays in bringing this motion, the Defendant closed its file. It would not be unreasonable for a Defendant to do so as it did, months after the dismissal order.

[ 22 ] The Plaintiff was represented by a lawyer. She and her lawyer were aware of the order as of November 14, 2008. The Plaintiff did not sufficiently explain why she did not pick-up her file in 2010 and why she did not move sooner thereafter. The fact that her lawyer was suspended and difficult to reach is not, in the circumstances of this case, a sufficient explanation. Sufficient steps were not taken to set the dismissal aside and advance this action and the explanations provided that the Plaintiff intended to proceed with this action are not convincing or sufficient. It appears unlikely that the delays or lack of constructive steps during the time periods noted above resulted from inadvertence and the explanations provided in this regard are also not convincing or sufficient.

[ 23 ] Simply to indicate that the Defendant has not suffered any prejudice, as it never delivered a statement of defence, is not sufficient to address prejudice when the incident occurred 10 years ago, the action was started four years ago and the dismissal order was made three years ago in an action that is still at the pleadings stage. Such a bold statement, in the circumstances of this case, does not meet the onus on the Plaintiff to show that the Defendant has not been prejudiced in presenting its case. The Plaintiff was warned in March that more evidence was required. This is not sufficient.

[ 24 ] Considering the four Reid factors, the evidence presented on this motion and adopting a contextual approach in weighing all factors and evidence presented on this motion, what is just in the circumstances of this case is to dismiss the motion.

[ 25 ] Costs of this motion should follow the result on a partial indemnity scale. The City seeks modest costs and the all inclusive amount of $500.00 is allowed for costs, payable by the Plaintiff to the Defendant.

Master Pierre E. Roger

Date: October 9, 2012