COURT FILE NO.: CV-08-365001
DATE HEARD: October 3, 2012
ENDORSEMENT RELEASED: October 17, 2012
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: SUBRATA SHOME v. APOTEX INC.
BEFORE: Master R. Dash
COUNSEL: Jason Bogh, for the plaintiff
Mark Stone and Bonnea Channe, for the defendant
REASONS FOR DECISION
[1] This is a motion by the plaintiff under rule 37.14(1)(c) to set aside the order of the registrar dated March 1, 2011 dismissing the action for delay. The action was dismissed under rule 48.14(4) when no steps were taken by the plaintiff to set the action down for trial, file a timetable or request a status hearing following the issuance of a status notice.
[2] The plaintiff was a 16 year employee of the defendant until he was dismissed on November 2, 2006. In the original statement of claim the plaintiff claimed not only wrongful dismissal, but he also alleged that he was required to handle toxic chemicals in working conditions that were unsafe, that he was assaulted by a co-employee without redress from the defendant, that he was harassed by his manager, that he was discriminated against on the basis of race or place of origin, that he was dismissed in a callous and reprehensible fashion and that the defendant breached its obligations of good faith and fair dealing. He claimed damages for reasonable notice, loss of reputation, mental distress and aggravated and punitive damages.
THE LAW ON SETTING ASIDE A REGISTRAR’S DISMISSAL
[3] The law relating to setting aside registrar’s dismissal orders has been considered by a number of recent decisions of the court of appeal and has been recently summarized by Master Muir in Vogrin v. Ticknor Estate[^1] as follows (citations omitted):
In the last five years, the law relating to setting aside registrar’s dismissal orders has been the subject of seven decisions of the Court of Appeal for Ontario. Although each of those decisions brings a slightly different approach to the decision making process, the general approach first set out by the Court of Appeal in Scaini has been followed consistently. The principles that emerge from those decisions can be summarized as follows:
● the court must consider and weigh all relevant factors, including the four Reid factors which are likely to be of central importance in most cases;
● the Reid factors, as cited by the Court of Appeal in Giant Tiger, are as follows:
(1) Explanation of the Litigation Delay: The plaintiff must adequately explain the delay in the progress of the litigation from the institution of the action until the deadline for setting the action down for trial as set out in the status notice. She must satisfy the court that steps were being taken to advance the litigation toward trial, or if such steps were not taken to explain why.... If either the solicitor or the client made a deliberate decision not to advance the litigation toward trial then the motion to set aside the dismissal will fail.
(2) Inadvertence in Missing the Deadline: The plaintiff or her solicitor must lead satisfactory evidence to explain that they always intended to set the action down within the time limit set out in the status notice, or request a status hearing, but failed to do so through inadvertence. In other words the penultimate dismissal order was made as a result of inadvertence.
(3) The Motion is Brought Promptly: The plaintiff must demonstrate that she moved forthwith to set aside the dismissal order as soon as the order came to her attention.
(4) No Prejudice to the Defendant: The plaintiff must convince the court that the defendants have not demonstrated any significant prejudice in presenting their case at trial as a result of the plaintiff's delay or as a result of steps taken following the dismissal of the action;
● a plaintiff need not satisfy all four of the Reid factors but rather a contextual approach is required;
● the key point is that the court is to consider and weigh all relevant factors to determine the order that is just in the circumstances of each particular case;
● all factors are important but prejudice is the key consideration;
● prejudice to a defendant may be presumed, particularly if a lengthy period of time has passed since the order was made or a limitation period has expired, in which case the plaintiff must lead evidence to rebut the presumption;
● once a plaintiff has rebutted the presumption of prejudice, the onus shifts to the defendant to establish actual prejudice;
● prejudice to a defendant is not prejudice inherent in facing an action in the first place but prejudice in reviving the action after it has been dismissed as a result of the plaintiff’s delay or as a result of steps taken following the dismissal of the action;
● the party who commences the litigation bears the primary responsibility under the Rules for the progress of the action;
● in weighing the relevant factors, the court should not ordinarily engage in speculation concerning the rights of action a plaintiff may have against his or her lawyer but it may be a factor in certain circumstances, particularly where a lawyer’s conduct has been deliberate. The primary focus should be on the rights of the litigants and not with the conduct of their counsel.
[4] To this must be added statements by the court of appeal on motions to set aside a registrar’s dismissal as to the effect of delay on the civil justice system. Although addressed in a number of cases it was perhaps best stated in Marché D’Alimentation v. Giant Tiger Stores[^2] which I summarized in Vaccaro v. Unifund Insurance[^3] as follows (citations omitted):
Marché v. Giant Tiger emphasized the effect of delay on the civil justice system. The court stated that the Reid requirement of explanation for litigation delay “ties into a dominant theme in modern civil procedure: the discouragement of delay and the enhancement of an active judicial role to ensure timely justice.” There is “a strong public interest in promoting the timely resolution of disputes. ‘The notion that justice delayed is justice denied reaches back to the mists of time’...Litigants are entitled to have their disputes resolved quickly so that they can get on with their lives.” The court stated that where despite the delay the defendant would not be unfairly prejudiced, “according the plaintiff an indulgence is generally favoured,” however it is not sufficient to demonstrate that the defendant could still advance its case despite delay since “there are four branches to the Reid test, and...those factors are not exhaustive.” The court emphasized that the law seeks a “finality to litigation” and the “finality principle grows stronger as the years pass. Even where the defendant could still defend itself despite the delay, “at some point the interest in the finality of litigation must trump the opposite party’s plea for an indulgence.”
[5] In Vaccaro I discussed the two competing themes articulated in the various decisions of the court of appeal, on one hand the discouragement of delay, which could result in the denial of reinstatement in appropriate cases even when there has been no actual prejudice to the defendant and on the other hand the importance of determining actions on their merits and granting an indulgence to an innocent plaintiff who should not be denied his day in court due to the actions of his lawyer, provided there be no prejudice to the defendant.[^4] This tension between the principles of determining actions on their merits and the public interest in discouraging delay was highlighted by Lasken J.A. speaking for the court in Hamilton (City) v. Svedas Koyanagi Architects Inc[^5]. where he states that in exercising discretion on such motions,
two principles of our civil justice system come into play...The first...is that civil actions should be decided on their merits...The second principle is that civil actions should be resolved within a reasonable timeframe...Both the litigants and the public have an interest in timely justice. Their confidence in the administration of our civil justice system depends on it. On motions to set aside an order dismissing an action for delay, inevitably there is a tension between those two principles...The court’s overriding objective is to achieve a just result – a result that balances the interests of the parties and takes into account the public’s interest in the timely resolution of disputes.
[6] Of course in exercising my discretion I must consider all relevant factors, including the four Reid factors, on a contextual basis to determine the order that is most just in the circumstances of this case.
[7] The original statement of claim was issued on October 27, 2008 and served on November 4, 2008. On December 4, 2008 the defendant served its statement of defence, denying, inter alia, the allegations of harassment and racism, and without raising cause as a defence to the termination stated that the plaintiff was dismissed because he was unable to improve his work performance. In defence to the action, the defendant pleaded that the defendant provided a reasonable severance package in lieu of notice. On December 19, 2008 the defendant served an offer to settle. When it was not accepted the defendant brought a motion to strike the original statement of claim on the bases that court did not have jurisdiction over some aspects of the claim, that some aspects of the claim failed to disclose a reasonable cause of action and that the claim was frivolous and vexatious.
[8] On July 9, 2009 Perkins J. struck the original statement of claim in its entirety with leave to deliver a fresh as amended statement of claim. A fresh as amended statement of claim was served on August 10, 2009. The second statement of claim claimed damages for reasonable notice, compensation for Human Rights violations, damages for intimidation and punitive damages. He again pled racial discrimination, harassment, bad faith conduct at termination and reprisals for whistle blowing respecting unsafe working conditions. Particulars were requested by the defendant on August 12, 2009 and a response to the demand for particulars was delivered by the plaintiff on August 31, 2009. In September 2009 the defendant advised of its intention to move to strike the fresh as amended statement of claim unless it was further amended. The plaintiff’s counsel, Mr. Bogle, advised he was not prepared to further amend the statement of claim but wished to consider the defendant’s settlement offer (from Dec. 19, 2008) before the defendant scheduled a new motion date. The defendant asked for a speedy response. The plaintiff did not respond. On April 9, 2010 defendant’s counsel reminded Mr. Bogle that he had not responded to the offer, asked for a response by April 19, failing which he asked for Mr. Bogle’s availability for a motion to strike. There was also no response to a voice message left by defendant’s counsel on June 18, 2010 asking for a response to the April 19th letter.
[9] The defendant did not hear from plaintiff’s counsel between September 2009 and October 5, 2010. On October 5, 2010 defendant’s counsel wrote to Mr. Bogle giving the plaintiff one last chance to respond to the offer to settle or further amend the statement of claim, failing which a motion to strike would be brought. Mr. Bogle responded by telephone that same day and sent a letter confirming the conversation on October 6th in which he notified the defendant that the plaintiff was dealing with an aggressive form of neurological cancer and had a number of surgeries in 2010 most recently on September 2, 2010.[^6] He advised that he did not have instructions to accept the defendant’s offer but he would follow up with his client in regards to this action “dependent on his recovery”.
[10] A status notice was issued on November 15, 2010. The deadline for taking one of the steps under rule 48.14(4) was 90 days later, or approximately February 13, 2011. No steps were taken and the action was dismissed by the registrar on March 1, 2011.
[11] The first Reid factor requires the plaintiff to explain the delay “from the institution of the action until the deadline for setting the action down for trial as set out in the status notice.” Two years and three months elapsed between the date the action was commenced on October 27, 2008 and the deadline for setting the action down on February 13, 2011. The action is still at the pleadings stage. No affidavits of documents have been exchanged. No examinations for discovery have been conducted. The action proceeded with relative dispatch for the first 8 or 9 months. The statement of claim was served promptly, the parties waited until the defendant’s motion to strike was heard and after the statement of claim was struck the plaintiff moved promptly to serve a fresh as amended statement of claim and promptly responded to a demand for particulars.
[12] The progress of the action stalled after September 9, 2009 when the defendant indicated the new statement of claim was still deficient and would move to strike it again unless it was further amended. The plaintiff’s lawyer indicated he would not further amend the statement of claim but wanted to consider the defendant’s settlement offer that had been made 9 months earlier. No further steps were taken by the plaintiff nor was any communication sent to the defendant for another 11 months until October 5, 2010. During that time Mr. Bogle was silent on the pleadings issue as well as the settlement issue.
[13] The plaintiff explains that delay as follows. On November 16, 2009, the plaintiff wrote to Mr. Bogle and stated: “It is almost three months I did not hear from you about our claim. However by this time lots of thing changed in my life and I want to inform you that I have been diagnosed with brain tumour recently and I have to go for surgery by next week.”[^7] The reference to three months of no communication must mean that Mr. Bogle did not tell the plaintiff about the defendant’s threat in September to move again to strike the statement of claim, nor had he told the plaintiff that the motion was on hold while he considered the defendant’s settlement offer. The plaintiff also suggested that his tumour may have been caused by the chemical exposure at work. He went on to state he wanted his wife and child to “get the settlement benefit” and for Mr. Bogle to advise what to do to ensure that. Mr. Bogle followed up with visits to his client in March, April and August 2010.
[14] In late March 2010 Mr. Bogle requested his client’s hospital records and on April 2, 2010 the plaintiff asked Mr. Bogle to enquire whether his doctor saw a connection between his cancer and the chemical exposure at work. A review of the hospital records in October 2010 and a subsequent discussion with the doctor indicated that the cause of the tumour was inconclusive. As indicated, defendant’s counsel was informed of the plaintiff’s medical condition on October 5, 2010. The plaintiff underwent additional surgeries and between November 2010 and April 2011 as the plaintiff had further treatment “it became difficult to obtain further instructions.”
[15] As indicated it was during this period that the status notice was sent to Mr. Bogle on November 15, 2010. When the status notice was ignored, the action was dismissed by the registrar on March 1, 2011. (I will have more to say about the failure to respond to the status notice when dealing with the second Reid factor.)
[16] I am satisfied that the plaintiff has provided an adequate explanation for the delay in the progress of the litigation between the date the statement of claim was issued on October 21, 2008 and the deadline for setting the action down in accordance with the status notice, February 13, 2011. Until September 2009 the action was progressing in a normal manner as the motions to strike and amendment of pleading were dealt with. After November 2009 the plaintiff did not take steps to advance the litigation firstly because Mr. Bogle was investigating a possible change to the scope of the action based on whether the brain tumour could be linked to the chemical exposure at the plaintiff’s place of employment, and secondly because of the seriousness of the plaintiff’s condition Mr. Bogle was unable to obtain instructions to accept the defendant’s settlement offer or proceed with the litigation. Clearly during that period the defendant could not turn his attention to the litigation or attend discoveries.
[17] While this is a reasonable explanation for failure to advance the litigation during the 15 months between discovery of the tumour and the set down deadline it is not a reasonable explanation for doing nothing. One thing the plaintiff’s lawyer could have done is contact the defendant’s lawyer in November 2009, explain the situation and ask for an indulgence, or a stay of the action if necessary. Instead the defendant was kept in the dark as to why Mr. Bogle was not responding to the settlement offer or providing dates for the fresh motion to strike the amended pleadings. The plaintiff has also failed to explain why there was no attempt by Mr. Bogle to get his client’s instructions to settle, fight the motion or revise the pleadings between his discussions with defendant’s counsel in September and learning of the tumour in November 2010. Finally, once the plaintiff was no longer lucid and able to provide instructions, there is no explanation as to why a litigation guardian was not appointed.
[18] Even though the explanation does not totally explain the delay, and even though the decision not to advance the litigation was a deliberate decision, the plaintiff’s lawyer having effectively placed the file in abeyance, I am satisfied that in the circumstances taken in context I should not give undue weight to the first Reid factor in determining whether to reinstate the action.
WAS DISMISSAL DUE TO INADVERTENCE?
[19] The status notice issued on November 15, 2010 provided that the plaintiff had 90 days to take one or more of several steps to avoid having the action dismissed for delay. As set out in the status notice and in rule 48.14(4) the plaintiff could have set the action down for trial, had the action terminated by any means, filed a consent timetable and draft order for a status hearing in writing or requested the court registrar to arrange a status hearing. Obviously the plaintiff was not in a position to set the action down for trial or have the action terminated. There is no explanation why a consent timetable was not filed. In fact the plaintiff never sent a draft litigation timetable to the defendant requesting consent. Finally, and most importantly there is no reason that Mr. Bogle could not have requested a status hearing and explain to the presiding master why the action had not progressed and seek the court’s assistance in staying the action or setting a litigation timetable with a deadline for setting the action down appropriate to the plaintiff’s medical condition.
[20] The second Reid factor requires the plaintiff to “lead satisfactory evidence” to explain that they always intended to set the action down or request a status hearing within the 90 day time limit set out in the status notice, but “failed to do so through inadvertence.” In this case the plaintiff has led not one scintilla of evidence as to why he failed to take steps after the status notice was issued, for example to request a status hearing. He has led no evidence that the failure to do so arose as a result of inadvertence. In fact the plaintiff’s affiant does not even mention the status notice at all, although the defendant’s counsel gave evidence that their office received it, and during the hearing of the motion Mr. Bogle confirmed that his office had also received the status notice.
[21] The sum total of the evidence provided by the plaintiff over this period of time is as set out in paragraphs 18 and 19 of the affidavit of Mr. Bogle’s secretary: “November 2010 to April 2011, the plaintiff continued to undergo treatment for his brain tumor and it became difficult to obtain further instructions. March 2, 2011 our office received an order dismissing the action for delay but was still unable to obtain any further instructions.” Even I were to stretch the evidence before me and accept that the reason for taking no steps in response to the status notice was the plaintiff’s medical condition and his lawyer’s inability to obtain instructions to proceed with the settlement or with the action, I would conclude that is no explanation at all for failing to request a status hearing in order to explain the situation to the presiding master and obtain an appropriate order to avoid a dismissal.
[22] Clearly the plaintiff or his lawyer made a deliberate decision to ignore the status notice and not to take any steps to set the action down or request a status hearing and instead the plaintiff’s lawyer had placed the file in abeyance. Indeed that conclusion is entirely consistent with the limited evidence proffered by the plaintiff. In any event the onus is on the plaintiff to provide evidence of inadvertence and he has failed to do so.
[23] The court of appeal has distinguished cases where a lawyer has abandoned a file or put it into abeyance or has intentionally refused to proceed with an action from cases of inadvertence.[^8]
[24] It is clear that the plaintiff never had an intention to set the action down or take other steps to avoid a dismissal within the deadline set out in the status notice. The dismissal did not arise as a result of inadvertence. The plaintiff has failed to meet the second Reid factor.
DID THE PLAINTIFF MOVE PROMPTLY TO SET ASIDE THE DISMISSAL?
[25] The action was dismissed on March 1, 2011. On March 4, 2011 the defendant withdrew its offer to settle. On March 17th Mr. Bogle wrote to his client advising him of the dismissal and asking to meet, but no steps were taken to set aside the dismissal. On May 11, 2011 the plaintiff died, although Mr. Bogle did not tell defendant’s counsel until August 19th. In that letter Mr. Bogle indicated that the plaintiff’s estate now wanted to proceed to recover damages for the wrongful dismissal, but before proceeding wanted the defendants’ position on settlement. Mr. Bogle did not ask whether the defendant would consent to set aside the dismissal order, nor had any steps been taken to set aside the dismissal. On August 26th defendant’s counsel reminded Mr. Bogle that the action had been dismissed almost six months earlier, that the plaintiff had taken no steps in response to that order, that the offer had been withdrawn on March 4, 2011, that the file was closed and the defendant “will not engage in any settlement discussions with your client’s estate.”
[26] This finally prompted Mr. Bogle on September 13, 2011 to seek the defendant’s available dates for a motion to set aside the dismissal. A motion date was scheduled for January 16, 2012, a date agreed by both counsel. The plaintiff however failed to serve his motion record before the motion return date and so the motion was adjourned to April 10, 2012. The reason given by Mr. Bogle for not preparing and serving the motion record was because he was involved in a criminal trial in November and because he inherited files from another criminal lawyer who had passed away in October and he was busy with that other lawyer’s criminal clients starting in December. In other words, Mr. Bogle was too busy to draft a motion record.
[27] The plaintiff’s motion record was finally served on February 2, 2012, 11 months after the action was dismissed. Rule 37.14 provides that a party may move to set aside a registrar’s order “by a notice of motion that is served forthwith after the order comes to the person’s attention.” The relevant delay in the third Reid factor is from the date that the plaintiff knew of the dismissal to the date the motion to set aside is served, not the date that the plaintiff first indicated an intention to bring such motion. That delay is 11 months.
[28] The motion was not heard on April 10, 2012 because the plaintiff did not properly confirm the motion. It did not proceed on the next adjourned date, June 22, 2012, because despite the motion having been booked for 2 hours, Mr. Bogle confirmed it for only 80 minutes, clearly inadequate. The motion was finally heard by me on October 3, 2012.
[29] The third Reid factor requires the plaintiff to demonstrate that he moved forthwith to set aside the dismissal order as soon as it came to his attention. Being busy with other work cannot justify a lawyer taking no steps to serve the notice of motion immediately. A dismissal order cannot be taken lightly. It commands immediate attention. If a lawyer does not have time to take on new work he should not take it on. If a lawyer is faced with a dismissal order, setting it aside should be his first priority given the strong language of rule 37.14. If he does not have time to draft a motion record, he should retain other counsel to do so, or refer the matter to LawPro (which would have the most prudent course of action immediately after the dismissal). While some cases have found it was not moving promptly to have delayed for a much shorter period than 11 months, others have excused delays in excess of 11 months.
[30] The delay in moving to set aside must be viewed in the context of all relevant circumstances, including other delay in the action. The 11 month delay in serving a motion is in my view further evidence of the approach taken by the plaintiff’s lawyer first in putting the file in abeyance while his client was ill and not telling the defendant, taking no steps to avoid the dismissal and now in serving a motion to set aside that dismissal. While I found that contextually there was an acceptable, if tenuous, explanation for the litigation delay prior to the set down deadline (the plaintiff’s illness), the same cannot be said for the delay in serving a motion.
[31] The plaintiff has failed to satisfy the third Reid factor.
PREJUDICE
[32] One of the Reid factors for the court to weigh in determining such order as is just is whether the defendant has been prejudiced by the delay or by reliance on the finality of the dismissal. While prejudice is only one of the relevant factors[^9], it is invariably a “key consideration.”[^10] The plaintiff is charged with the task of demonstrating, at least prima facie, that the defendants have suffered no prejudice as a result of the delay. The expiry of a limitation period gives rise to a presumption of prejudice. It is now common wisdom that memories of witnesses fade over time. Where the presumption arises, the plaintiff bears the burden of rebutting the presumption, on proper evidence. Where the presumption is so displaced, the onus shifts to the defendant to establish actual prejudice.”[^11]
[33] It has now been almost six years since the cause of action arose (the termination from employment). Four years and four months passed between the date the cause of action arose and the date the action was dismissed. The limitation period has passed and a presumption of prejudice arises.
[34] How can a plaintiff rebut the presumption of prejudice?
The plaintiff can overcome the presumption of prejudice for example by evidence that relevant documents have been preserved, key witnesses are available, certain elements of the claim may not be in issue, and in the case of personal injury, that medical evidence of the progress of the injuries is available.[^12]
[35] The plaintiff has not provided any evidence whatsoever to rebut the presumption of prejudice. There is no evidence of what documents are available or preserved. No affidavits of documents have been exchanged. There is no evidence of what witnesses are required to testify as to the facts in issue in this action, let alone that they are alive, located, available and their memories are intact. The plaintiff himself is deceased. There has been no examination for discovery of the plaintiff, nor was there any effort to obtain and preserve his evidence by commission under Rule 36 once he was diagnosed with a brain tumour. As such the plaintiff’s own evidence is not available for trial. There is no evidence as to any other witnesses with knowledge of the plaintiff’s complaints as set out in the statement of claim.
[36] The plaintiff’s lawyer argues, notwithstanding the absence of evidence to that effect, that the significant facts in this action are not in issue. For example, the date he was hired, the date he was fired and his compensation at the time of termination are admitted in the pleadings.
[37] Most of the remaining allegations remain in issue including mitigation efforts, allegations of racial discrimination and human rights violation, harassment, intimidation, unsafe workplace environment respecting the handling of and exposure to chemicals, retaliatory conduct to whistle blowing and bad faith conduct at the time of termination. There is no indication of whether documentary evidence exists and has been preserved or whether witnesses are available to testify as to these issues.
[38] The plaintiff partially responds to this issue by proposing a new amended statement of claim, which provides for an order to continue the action in the name of the plaintiff’s estate trustee and a reduction from a 47 paragraph statement of claim to a 9 paragraph statement of claim. The new proposed statement of claim eliminates the claims for damages based on racial discrimination, human rights violations, harassment, intimidation and retaliatory firing, yet continues to plead that “the defendant breached its obligations of good faith and fair dealing by failing to adequately address any of the plaintiff’s husband’s concerns regarding his work conditions, safety, discrimination and unjustified performance reviews.” It continues to plead that the defendant breached its duty of good faith and fair dealing by not providing reasons for termination and not permitting an opportunity to explain his conduct. Although the claim for punitive damages has been eliminated, the new statement of claim still pleads that the manner of termination was “highly reprehensible, insulting, high-handed, malicious, oppressive...” There is no evidence as to available documents or witnesses in support of these claims.
[39] Even if the plaintiff agreed to drop all issues except reasonable notice, the defence of mitigation pled by the defendant is significant. There is no evidence of what efforts were made by the plaintiff to mitigate his losses and seek new employment after termination, during the three years between the plaintiff’s termination and the time he became ill. There is no evidence of what documents or witnesses are available with respect to mitigation. While the death of and inability to discover a a plaintiff does not necessary equate to prejudice to the defendant, in my view it is a significant factor on issues of mitigation. Unless other evidence exists which the moving party has not disclosed, the plaintiff’s efforts to find employment and why he did not find other employment must come from the plaintiff’s own mouth. That of course is now impossible.
[40] In my view the plaintiff has failed to rebut the presumption of prejudice and as such has not satisfied the fourth Reid factor.
[41] As the plaintiff has failed to rebut the presumption of prejudice the defendant is not required to provide evidence of actual prejudice; however as the defendant has adduced evidence of actual prejudice I will consider such evidence for completeness.
[42] The defendant states that actual prejudice occurs because (as of the date of the affidavit March 29, 2012) the termination took place almost 5.5 years previously and some of the allegations respecting workplace safety and failure to address concerns (which allegations were carried over into the most recent draft statement of claim) were 10 to 20 years old. The defendant states that it has conducted a diligent search of its records and does not have in its possession any documents or information respecting many allegations, particularly those describing events 10 to 20 years before. It avers that it “would be very difficult” to locate any potential witnesses as it has terminated hundreds of employees mainly as part of permanent mass layoffs. Finally the defendant says it has not conducted an examination for discovery and as a result of the defendant’s death it can no longer depose him or cross-examine him at trial.
[43] I take no stock in the allegation that the difficulty in finding witnesses because of layoffs amounts to evidence of prejudice. There is no evidence that the defendant has actually tried to locate specific witnesses. The defendant has been aware of this lawsuit since 2008 and has had time to ascertain who its witnesses might be. On the other hand, the evidence is uncontradicted that it has searched its records and has no documents on some of the allegations, particularly of those events occurring 10-20 years ago.
[44] Although the death of a plaintiff prior to examinations for discovery does not automatically result in prejudice to a defendant, and indeed many cases proceed on behalf of a deceased plaintiff, I find that in the circumstances of this case it does amount to prejudice. Mitigation is a significant issue in this action. There has been no evidence from the plaintiff that documents exist that would demonstrate what efforts he has made to find work and that such documents have been preserved.
[45] The defendant in a wrongful dismissal case who has raised the defence of mitigation has the onus of establishing that with proper mitigation the plaintiff could have avoided all or part of his loss.[^13] The defendant has the onus of proving two elements: firstly, that the plaintiff failed to make reasonable efforts to find replacement work and secondly, that the plaintiff could have found replacement work had reasonable efforts been made.[^14] A major source of evidence of the plaintiff’s efforts of course are exclusively within the knowledge of the plaintiff and such knowledge is gained by the defendant in the plaintiff’s documents and in the plaintiff’s examination for discovery. The plaintiff has made no documentary production and there is no evidence that mitigation documents exist. The plaintiff’s death has deprived the defendant of ascertaining the information directly from the plaintiff. Alternatively, once it became known to the plaintiff’s lawyer in November 2009 that the plaintiff had a brain tumour and was undergoing surgery, prudent counsel would have preserved his evidence by a Rule 36 examination. Instead the plaintiff’s counsel failed to advise the defendant until October 2010. No steps were taken by the plaintiff’s lawyer as the plaintiff continued to deteriorate and the plaintiff passed away on May 11, 2011.
[46] I find that not only has the plaintiff not met the burden of displacing the presumption of prejudice but the defendant has demonstrated that it has incurred actual prejudice as a result of the delay in prosecuting this action.
CONCLUSION
[47] The court cannot help but be very sympathetic to the plaintiff’s serious medical condition that developed about a year after this action was commenced and his ultimate death about 18 months later. Indeed I found that context provided an explanation for the failure to take steps to promote the action during that time. It is understandable that the plaintiff was more concerned over that period about his health than this lawsuit and by late 2010 was not sufficiently lucid to provide instructions. I held however that it was no excuse for the plaintiff’s lawyer to have failed to disclose this information for over a year. It cannot explain why no documentary production had been made, given that the plaintiffs’ illness started a year after the plaintiff started this action. It does not explain why no litigation guardian was appointed after the plaintiff became incapable of providing instructions. Finally it cannot explain why no steps were taken to avoid a dismissal such as requesting a status hearing.
[48] Even if the litigation delay had been adequately explained, the plaintiff still failed to satisfy any of the other three Reid factors. I found that effectively Mr. Bogle had put this file in abeyance both before and after the dismissal. The plaintiff failed to satisfy me that the action was dismissed due to inadvertence. The plaintiff failed to move promptly to set aside the dismissal once aware of it. Most importantly I found that the plaintiff had failed to displace the presumption of prejudice. Although not necessary to make that determination I also found that the defendant has suffered actual prejudice arising out of the delay.
[49] I appreciate that by failing to reinstate this action, the plaintiff’s estate will be unable to pursue a claim for damages arising out of the plaintiff’s employment in excess of the severance paid at the time of termination. In my view however the failure to satisfy, or even lead evidence to address, three of the four Reid factors together with the lengthy delay and my finding that the defendant has been prejudiced by the delay as well as recognition of the finality principle lead me to conclude that this is not an appropriate case to grant an indulgence to the plaintiff.
[50] In all the circumstances, and considering all relevant factors on a contextual basis, I am of the view that the order that is most just is to dismiss this motion and not set aside the registrar’s dismissal order.
[51] Given this result it is unnecessary to make an order with respect to the order to continue, which was requested, or to the new draft amended statement of claim, which was attached but for which no order was requested.
COSTS
[52] The defendant was successful in resisting this motion to reinstate the action. Subject to offers to settle this motion of which I am unaware the defendant would be entitled to its costs of this motion and, since the action has now been dismissed, to its costs of the action. It may be that given the very tragic circumstances of the plaintiff as revealed on this motion and given that the defendant will never have to pay out on the offer to settle that it made in December 2008 and revoked after the action was dismissed, the defendant will consider waiving its costs.
[53] If the defendant is seeking its costs of the motion, brief submissions should be provided within 10 days together with a Costs Outline (Form 57B) for costs of the motion, and if seeking costs of the action a Bill of Costs (Form 57A) for other costs of the action, and in both cases with supporting fee dockets and disbursement invoices. Responding submissions from the plaintiff should be received within 7 days thereafter.
ORDER
[54] The court hereby orders that the motion by the plaintiff to set aside the order of the registrar dated March 1, 2011 dismissing the action for delay is dismissed.
Master R. Dash
DATE: October 17, 2012
[^1]: Vogrin v. Ticknor Estate, 2012 ONSC 1640, [2012] O.J. No. 1119 at para. 32 [^2]: Marché D’Alimentation Denis Thériault Lteé v. Giant Tiger Stores Ltd., 2007 ONCA 695, (2007), 87 O.R. (3d) 660, [2007] O.J. No. 3872 (C.A.) [^3]: Vaccaro v. Unifund Insurance, [2011] ONSC 5318, [2011] O.J. No. 4433 at para. 13 [^4]: Vaccaro v. Unifund, supra at paras. 12-13 [^5]: Hamilton (City) v. Svedas Koyanagi Architects Inc., 2010 ONCA 887, 104 O.R. (3d) 689, [2010] O.J. No. 5572 (C.A.) at paras 20- 23 [^6]: In her affidavit, Mr. Bogle’s secretary says that “counsel” verbally advised the defendant’s lawyer of the plaintiff’s medical condition shortly after November 16, 2009. She stated earlier in her affidavit that the source of her information and belief arises from the attached exhibits unless otherwise stated. Since this was an alleged oral communication and there is no letter or other exhibit attached verifying this communication her source of information must be elsewhere although the source is not identified. On the other hand the defendant’s affiant swears that she was advised by defendant’s counsel in charge of the file that the statement from Mr. Bogle’s secretary is incorrect and that defendant’s counsel did not hear back from Mr. Bogle about the plaintiff’s medical condition until October 5, 2010. The defendant’s version is supported by Mr. Bogle’s letter of October 6, 2010 where he confirms that on October 5, 2010 he advised the defendant that the plaintiff was suffering from cancer. There is no reference to any earlier advice. Although the plaintiff put in a supplementary affidavit after the defendant’s responding record, he does not contradict the defendant’s evidence. During argument Mr. Bogle did not contest the defendant’s evidence. I am satisfied that the first notice to the defendant of the plaintiff’s medical condition was on October 5, 2010. [^7]: In her affidavit, Mr. Bogle’s secretary says that in October 2009 the plaintiff “verbally informed our office” that he is undergoing tests to determine if he had a brain tumour. The source of the secretary’s information is not provided, nor is the person to whom the plaintiff allegedly spoke. That conversation is suspect given the letter written by the plaintiff to Mr. Bogle on November 16, 2009 informing him of the brain tumour and stating he had not heard from Mr. Bogle in 3 months, however nothing falls on this. [^8]: Aguas v. Rivard Estate, 2011 ONCA 494, [2011] O.J. No. 3108 (C.A.) at paras. 15 and 15, Marché v. Giant Tiger, supra at para. 27-29 [^9]: Marché v. Giant Tiger, supra at para. 35 [^10]: Finlay v. Van Paassen, 2010 ONCA 204, (2010), 101 O.R. (3d) 390, [2010] O.J. No. 1097 (C.A.) at para. 28. [^11]: Wellwood v. Ontario (Provincial Police), 2010 ONCA 386, 102 O.R. (3d) 555, [2010] O.J. No. 2225 (C.A.), supra at para. 60 [^12]: Wellwood v. Ontario, supra at para. 62, quoting Kassam v. Sitzer, [2004] O.J. No. 3431, aff’d [2005] O.J. No. 1849 (Div. Ct.) [^13]: Red Deer College v. Michaels (1975), 1975 CanLII 15 (SCC), 57 D.L.R. (3d) 386 (S.C.C.) at paras. 390-391 [^14]: Employment Law in Canada, Fourth edition, Peter Barnacle and Roderick Wood, Butterworths at para. 16.85.