SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: CV-09-00375557-0000
DATE: 20121026
RE: Bibi Shakur v. Huy Pham et al.
BEFORE: Master Glustein
COUNSEL:
Kevin Temple for the plaintiff
Melissa Tessler for the defendant State Farm Insurance Company
HEARD: October 24, 2012
REASONS FOR DECISION
Nature of motion and overview
[ 1 ] The plaintiff Bibi Shakur (“Shakur”) brings this motion under Rule 37.14 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194 (the “ Rules ”) to set aside the registrar’s dismissal order dated September 20, 2011 dismissing the action under Rule 48.14 (the “Dismissal Order”). The defendant State Farm Insurance Company (“State Farm”) opposes the motion.
[ 2 ] For the reasons I discuss below, I find (i) Shakur has provided an adequate explanation of the litigation delay; (ii) the Dismissal Order was made as a result of inadvertence; (iii) the motion to set aside the Dismissal Order was brought promptly; and (iv) Shakur rebutted the presumption of prejudice and State Farm did not establish actual prejudice. There were no other contextual factors raised on the motion.
[ 3 ] Consequently, I grant the motion.
Applicable law
[ 4 ] There have been numerous cases addressing the test on a motion to set aside a dismissal order. Both parties agree on the relevant factors. I adopt the cogent summary of Master Muir in the recent decision of Taheem v. Palmer , [2012] O.J. No. 2252 (S.C.J. – Mast.) (“ Taheem ”) in which Master Muir reviews those factors ( Taheem , at para. 19):
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. [Footnotes omitted; italics in original.]
[ 5 ] Consequently, I consider the above factors in my analysis.
Analysis
[ 6 ] The evidence below is taken from the uncontested affidavits and exhibits filed on behalf of both parties, unless otherwise stated.
(i) Explanation of the litigation delay
[ 7 ] There is an adequate explanation for the litigation delay. Shakur issued the statement of claim on March 31, 2009. Two days later, on April 2, 2009, Shakur served the statement of claim on State Farm.
[ 8 ] On April 28, 2009, State Farm served Shakur with its notice of intent to defend. On May 4, 2009, State Farm served Shakur with its statement of defence and jury notice.
[ 9 ] Shakur then engaged in settlement discussions which resulted in the discontinuance of the action against all of the defendants except State Farm on or about September 9, 2009.
[ 10 ] On November 27, 2009, State Farm served its draft affidavit of documents on Shakur’s counsel, after having sent an initial draft affidavit of documents to Shakur’s counsel on June 5, 2009.
[ 11 ] State Farm examined Shakur for discovery on January 22, 2010. State Farm’s counsel advised the court at the hearing that Shakur served her affidavit of documents shortly before her examination for discovery. Both counsel advised the court at the hearing that State Farm was not examined for discovery.
[ 12 ] On March 10, 2010, Shakur’s counsel proposed a private mediation (as opposed to a roster mediation) for “a date in the late summer 2010 and early winter 2010” which “will allow ample time for all undertakings to be satisfied” and “will also give [State Farm] an opportunity to arrange a defence medical assessment, if you feel this is necessary”. Shakur’s counsel proposed a list of 16 mediators.
[ 13 ] On March 22, 2010, State Farm suggested a roster mediator for the mandatory mediation.
[ 14 ] After the correspondence about mediation, State Farm requested answers to the outstanding undertakings by letters in April, June and August 2010 but Shakur’s counsel did not respond. State Farm had requested those answers to undertakings by two letters prior to the March 10, 2010 letter from Shakur’s counsel discussed above in which Shakur’s counsel referred to the requirement to answer the undertakings.
[ 15 ] The Dismissal Order was issued on September 20, 2011. State Farm closed its file and shipped it off-site on or around November 21, 2011.
[ 16 ] Shakur took no further steps in the action from March 2010 until her counsel became aware of the Dismissal Order in December 2011.
[ 17 ] However, the uncontested evidence of Shakur’s counsel is that he was unaware that the action had not been set down for trial. At the hearing, Shakur’s counsel confirmed that the action was ready to be set down for trial if the court set aside the Dismissal Order.
[ 18 ] Consequently, there would have been no reason for Shakur to take further steps in the action given that examinations for discovery had been completed and no further steps would have been required other than to set the action down for trial. Shakur’s response to outstanding undertakings would have been a continuing obligation if Shakur had set the action down for trial and as such would not have prevented setting the action down for trial.
[ 19 ] State Farm asks the court to disregard the evidence that Shakur’s counsel was unaware that the action had not been set down for trial, since Shakur’s counsel offers no explanation as to why he was unaware. However, the reason why counsel was not aware that the action had not been set down for trial does not alter the uncontested evidence that he was unaware that the action was not set down for trial which explains why Shakur took no further steps in the action.
[ 20 ] State Farm submits that Shakur’s counsel should have led evidence as to why he took no steps to confirm that the action had been set down for trial. Shakur’s counsel could have inquired to determine when the action had been set down for trial. In hindsight Shakur’s counsel would have been able to learn that the action had not been set down for trial if he had called the trial scheduling office.
[ 21 ] However, Shakur’s counsel’s explanation for the litigation delay is adequate given that plaintiff’s counsel would not expect a trial date to be set for some time after the action was set down for trial, and could only be done after certification forms were complete. Consequently, there would have been no need for Shakur’s counsel to take further steps if he was unaware that the action had not been set down for trial.
[ 22 ] Further, the uncontested evidence of Shakur (as advised to counsel in his affidavit) is that she always intended to proceed with the litigation. While such a statement is not sufficient on its own to satisfy the court of a plaintiff’s intention, Shakur’s evidence is consistent with that of her counsel that all steps except mediation had been completed and Shakur’s counsel was unaware that the action had not been set down for trial.
[ 23 ] State Farm relies on my decision in Haynes v. RBC Life Insurance Co. , 2010 ONSC 2470 (Mast.) (“ Haynes ”), to submit that Shakur failed to provide an adequate explanation for the delay. However, the present case can be distinguished on its facts from Haynes , since in Haynes the plaintiff took no steps to serve the statement of claim for almost two years, and took no steps at all to move the action forward. In contrast, Shakur took active steps to move the action forward from March 2009 to March 2010, including prompt service of the statement of claim, immediate settlement discussions, and examination for discovery and took no steps after March 2010 since Shakur’s counsel was unaware that the action had not been set down for trial.
[ 24 ] Consequently, I find that Shakur has met the Scaini requirement to adequately explain the delay in the progress of the action from the institution of the action until the deadline for setting the action down for trial and to satisfy the court that steps were being taken to advance the litigation toward trial, or if such steps were not taken to explain why. While it is the plaintiff’s responsibility to ensure progress of the litigation ( Vivace Tavern v. Ontario , 2011 ONSC 11 (Mast.) (“ Vivace Tavern ”) at para. 9 ), Shakur has adequately done so in this case.
[ 25 ] For the above reasons, I find that Shakur has satisfied the first factor to be considered under the Scaini test.
(ii) Inadvertence in missing the deadline
[ 26 ] I find that Shakur satisfied this factor of the Scaini test. The evidence is uncontroverted that “the correspondence section of the file was missing the Notice of Action Dismissal Form which would have alerted Mr. Wilkins’ [sic] to a possibility of this action being dismissed” and that “due to inadvertence, the set down date was not recorded in Mr. Wilkins [sic] calendar either, such that he did not set the matter down for trial by the deadline”.
[ 27 ] Consequently, the evidence is uncontroverted that “prior to receipt of the Order dismissing the action on May 19, 2010 [1] , Paul Wilkins was unaware of the impending administrative dismissal due to the calendar omission and missing notice in the correspondence section of the file”.
[ 28 ] State Farm relies on my earlier decision in R.A. v. R.D.S. , 2011 ONSC 7095 (Mast.) (“ R.A. ”), in which I held that the mere failure to receive a status notice does not constitute inadvertence ( R.A. , at para. 97 ). However, in R.A. , I found that plaintiff’s counsel took no steps to ascertain the set down date and that it was for this reason that plaintiff’s counsel did not meet the deadline ( R.A. , at paras. 91-96 ). I further found that plaintiff’s counsel acted, without any basis, as if he was not working to a set down date deadline ( R.A. , at para. 99 ). In that context, the mere non-receipt of a status notice was not sufficient to establish inadvertence.
[ 29 ] However, unlike the evidence before the court in R.A. , the uncontested evidence in the present case is that Shakur’s counsel was unaware that the action had not been set down for trial. That belief is consistent with an intention to set the action down for trial and with the evidence that examination for discovery had been completed.
[ 30 ] Further, the uncontested evidence is that the status notice was not in Shakur’s counsel’s file and that Shakur’s counsel never knew of the “impending administrative dismissal due to the calendar omission and missing notice in the correspondence section of the file”.
[ 31 ] State Farm submits that Shakur’s counsel should have “looked into” when the action was required to be set down for trial under the Rules , and as such it is not inadvertence that he failed to put the date in his calendar or failed to receive the status notice prior to dismissal. However, State Farm’s submission would lead to a finding of no inadvertence in almost every case of a registrar’s dismissal, since any counsel could “look into” a set down date of two years which is required under the Rules . State Farm’s interpretation is not consistent with the settled case law that requires the court to consider whether the plaintiff “intended to set the action down within the time limit” but “failed to do so through inadvertence”.
[ 32 ] Consequently, the above evidence is sufficient to satisfy the court that the Dismissal Order was made as a result of inadvertence.
(iii) Promptness in bringing the motion
[ 33 ] The evidence is that Shakur’s counsel received the Dismissal Order in his office on September 22, 2011, but that the order was missing from the correspondence section and was not brought to Shakur’s counsel’s attention until December 2011 at which point Shakur’s counsel booked “the first available date” for the motion after determining that the Dismissal Order “was not the result of an administrative error”.
[ 34 ] State Farm submits that the issue of promptness should be assessed from September 22, 2011 the date the Dismissal Order was received in Shakur’s counsel’s office. If that was the applicable date, I would agree that the motion was not brought promptly, as it was not scheduled for more than three months, until some date after it came to Shakur’s counsel’s attention in December 2011 and after Shakur’s counsel determined that the Dismissal Order did not arise from administrative error.
[ 35 ] I note that even if this three month delay (from September 22, 2011 receipt of the Dismissal Order in the office until Shakur’s counsel became aware of it in December 2011) were the correct time frame to consider at law, the delay would not be so excessive as to constitute a strong factor to maintain the Dismissal Order.
[ 36 ] However, the case law supports the conclusion that the applicable time period runs from the date “the order came to [counsel’s] attention”. In the present case, while there is no evidence before the court as to when the motion was booked, the evidence is that the motion was first scheduled for April 26, 2012, which demonstrates that the motion was booked promptly after Shakur’s counsel became aware of the Dismissal Order in December 2011.
[ 37 ] Since I find that the applicable time period runs from the date the Dismissal Order came to counsel’s attention, I consider any delay from the date the Dismissal Order was received in counsel’s office (in this case on September 22, 2011) until the date it came to counsel’s attention (in this case in December 2011) as part of the overall litigation delay. In the present case, the adequate explanation discussed above for the litigation delay would remain adequate for the additional period until December 2011.
[ 38 ] State Farm submits that the motion must also be served promptly, as required under Rule 37.14 and discussed by Master Dash in Vivace Tavern , at para. 62 , and that service at the end of March 2012 was not prompt. While a delay in serving the motion record may be a relevant factor on a motion to set aside a dismissal order, I adopt the conclusion of Master Dash in Vivace Tavern that a delay in serving the motion of “about 2 ½ months” still meets the third Reid factor “in all the circumstances, and considering the jurisprudence in Ontario excusing delays of much longer periods” ( Vivace Tavern , at para. 63 ).
[ 39 ] Consequently, I find that Shakur has met this aspect of the Reid test.
(iv) Prejudice
(a) Rebutting the presumption of prejudice
[ 40 ] There is a presumption of prejudice that applies given the passage of the limitation period.
[ 41 ] Shakur’s evidence is that “I verily believe that no documents or witnesses have been made unavailable as a result of the time that passed between the date of the dismissal Order and the date of this motion record”.
[ 42 ] I note that the above evidence does not directly address prejudice arising from the delay in the litigation as it is limited to the time period between the date of the Dismissal Order in September 2011 and the date of the motion record in March 2012.
[ 43 ] However, the presumption of prejudice arising from the delay in the litigation is also rebutted by the evidence that (i) documentary and oral discovery have taken place and (ii) in his March 10, 2010 letter, Shakur’s counsel invited defendant’s counsel to conduct a defence medical examination.
[ 44 ] Consequently, while Shakur’s rebuttal evidence is not as detailed as in other cases in which a plaintiff has stated that all medical records are available and set out a list of treating physicians who have the records, I still find that Shakur has rebutted the presumption of prejudice.
(b) Actual prejudice
[ 45 ] State Farm submits that it suffered actual prejudice because (i) “no insurer’s examinations were conducted for the purpose of determining entitlement to housekeeping or caregiver benefits during the period of time for which the Plaintiff claims entitlement of benefits” and since “the Plaintiff has yet to submit any receipts or invoices for housekeeping expenses”; (ii) Shakur gave evidence on her examination for discovery that “her family doctor has retired and his records may no longer exist” and (iii) Shakur’s evidence on discovery was that her father was 83 years old. I address each of those issues below.
- The lack of insurance examinations and receipts
[ 46 ] State Farm relies on my decision in Haynes in which I held that an insured’s failure to provide ongoing information caused the insurer to lose the opportunity to assist the insured to mitigate damages ( Haynes , at para. 52 ). In Haynes , I relied on Cervo v. State Farm Mutual Automobile Insurance Co. , 2006 37119 (ON CA) , [2006] O.J. No. 4378 (C.A.) (“ Cervo ”) and Sherratt v. Sun Life Assurance (“ Sherratt ”), an unreported decision.
[ 47 ] However, in Cervo , the insured only notified the insurer of the claim almost two years after the accident. Consequently, the court denied relief from forfeiture for the insured’s failure to notify his insurer of his accident benefits claim within 30 days after the accident. The court noted that “there was a loss of opportunity to assist the claimant with treatment” as a result of the late notification ( Cervo , at paras. 67-68 , cited at Haynes , at para. 48 ).
[ 48 ] Similarly, in Sherratt , the evidence was that the insurer had closed its long term disability file “many years ago” and as such “irrevocably lost opportunities to explore such issues [as the plaintiff’s evolving medical condition]” (cited at Haynes , at para. 49 ).
[ 49 ] In Haynes , the motor vehicle accident which led to the long term disability claim took place in October 2003. RBC did not receive the claim until about November 2005. RBC denied Haynes’ claim in May 2006 and denied the appeal in January 2007. RBC had no notice of the statement of claim until April 1, 2009 even though it was issued on July 4, 2007 ( Haynes , at paras. 4-10 and 17 ).
[ 50 ] On those facts in Haynes , I held that there was actual prejudice to the insurer due to the lost opportunity to assist the claimant with treatment. However, the evidence does not support such a finding in the present case.
[ 51 ] From the outset, State Farm was aware of the accident benefits claim. The motor vehicle accident occurred on October 23, 2007 and Shakur submitted her claim for accident benefits in November 2007. Shakur provided invoices for caregiver benefits for the period between November 13-30, 2007 and housekeeping expenses from November 12, 2007 to December 1, 2007.
[ 52 ] While State Farm led evidence that Shakur failed to provide requested information after November 2007 and that State Farm had not conducted examinations to determine entitlement to benefits, this is not a case in which the delay in prosecuting the action or notifying the insurer contributed to any such prejudice. State Farm did not deny Shakur’s claim, and had the ability to insist on examinations or the production of documents. State Farm could have taken those steps even before the statement of claim was issued and could have done so after it was issued. State Farm never asked Shakur to attend an examination. Consequently, unlike the cases in Cervo , Sherratt , and Haynes , there was no delay either in the notification of the insurer or the prosecution of the action which caused State Farm to lose examination rights.
[ 53 ] For the above reasons, I do not accept this ground as a basis for actual prejudice.
- The retirement of Shakur’s family doctor
[ 54 ] There is no admissible evidence that Shakur’s family doctor retired.
[ 55 ] The only evidence is hearsay from a lawyer who does not state that he attended at Shakur’s examination for discovery that “I am advised and do verily believe that during her examination for discovery the Plaintiff stated that her family doctor has retired and his records may no longer exist”. The affiant lawyer does not provide any source for the information, which renders the evidence inadmissible that Shakur made those statements at her examination for discovery.
[ 56 ] Even if the affiant lawyer had stated who advised him of Shakur’s statement, the hearsay evidence as to whether Shakur made the statement would constitute double hearsay for the truth of the statement as the affiant does not state that he heard the evidence from Shakur and believed it to be true. Consequently, the evidence of the retirement of Shakur’s family doctor is inadmissible.
[ 57 ] Even if I accepted the evidence that Shakur’s family doctor retired, there is no evidence of actual prejudice resulting from the retirement. State Farm’s counsel advised the court that all of the records from the family doctor had been produced up to 2007. There is no evidence as to whether, if the family doctor retired, the records are not available from either a doctor with a subsequent practice or from storage. There is no evidence as to storage requirements of medical records under professional regulations. Consequently, I cannot find actual prejudice arising from the retirement.
[ 58 ] For the above reasons, I do not accept this ground as a basis for actual prejudice.
- The age of Shakur’s father
[ 59 ] There is no admissible evidence of the age of Shakur’s father.
[ 60 ] The only evidence is hearsay from a lawyer who does not state that he attended at Shakur’s examination for discovery that “I am advised and do verily believe that during her examination for discovery the Plaintiff advised that her father was 83 years old”. The affiant lawyer does not provide any source for the information, which renders the evidence inadmissible that Shakur made that statement at her examination for discovery.
[ 61 ] Even if the affiant lawyer had stated who advised him of Shakur’s statement, the hearsay evidence as to whether Shakur made the statement would constitute double hearsay for the truth of the statement as the affiant does not state that he heard the evidence from Shakur and believed it to be true. Consequently, the evidence of the age of Shakur’s father is inadmissible.
[ 62 ] Even if I accepted the evidence that Shakur’s father is now 85 years old, there is no evidence of actual prejudice resulting from his age. There is no evidence that Shakur’s father had any difficulties of recollection or other infirmities that would hinder his ability to provide evidence either now or at any time. State Farm is in effect asking the court to presume prejudice because a witness is 85 years old, which is not appropriate without further evidence as to the person’s capacities. Consequently, I cannot find actual prejudice arising from the age of Shakur’s father.
[ 63 ] For the above reasons, I do not accept this ground as a basis for actual prejudice.
(v) Other contextual factors
[ 64 ] Neither party relied on any other contextual factor to support setting aside the Dismissal Order.
Order and costs
[ 65 ] I grant the motion for the reasons discussed above.
[ 66 ] State Farm seeks costs even if I grant the motion. State Farm relies on Vaccaro v. Unifund Insurance Co. , [2011] O.J. No. 4433 (S.C.J. – Mast.) (“ Vaccaro ”) , in which Master Dash ordered costs despite the plaintiff being successful in setting aside the dismissal order. Master Dash held that “Although the plaintiff was successful in having the registrar’s dismissal order set aside … a very significant indulgence was granted to the plaintiff … this is a case where costs should be awarded to the defendant notwithstanding that it was unsuccessful in resisting the motion” ( Vaccaro , at para. 75).
[ 67 ] However, the decision in Vaccaro does not stand for the proposition that any defendant is entitled to costs solely because the defendant takes a reasonable position to oppose a motion to set aside a dismissal order. If that were the case, it would be a general rule that costs are awarded to an unsuccessful defendant on such a motion, which is not consistent with the Rules .
[ 68 ] In certain circumstances, costs may be appropriate against a plaintiff even though the plaintiff is successful on a motion to set aside a dismissal order. In Vaccaro , Master Dash held that “The plaintiff’s lawyers demonstrated an abject and systemic inattention to this file” ( Vaccaro , at para. 75).
[ 69 ] In Gorouvein v. Toronto Transit Commission (2008), 2008 65765 (ON SC) , 94 O.R. (3d) 225 (S.C.J. – Mast.) (“ Gorouvein ”), I ordered costs to the defendant who unsuccessfully opposed a motion to set aside a dismissal order since I held: (i) the plaintiff put little effort into the motion material, failed to explain any delay in the litigation process, and plaintiff's counsel frequently sought to lead evidence that was not in the affidavit; and (ii) the plaintiff chose to file affidavits by individuals with no knowledge of the case, and limit evidence to the bare basics ( Gorouvein , at paras. 50-52 ).
[ 70 ] The above type of unreasonable conduct by the plaintiff whether in managing the litigation or in preparing for the motion could justify an order under Rule 57.01(2). However, in the present case Shakur made a good faith effort to lead proper evidence and her management of the litigation cannot be said to constitute “abject” or “systemic” inattention. Consequently, I reject State Farm’s submission for costs, except for the amount of $175 inclusive of taxes and disbursements which are costs thrown away by State Farm for closing and retrieving the file (as set out in State Farm’s costs outline).
[ 71 ] Shakur requests costs as a successful party on the motion. However, I find that Shakur was seeking a serious indulgence of the court, one which was caused by her counsel’s inadvertence. State Farm should not be required to pay costs, even though unsuccessful on the motion, when the evidence supports the conclusion that State Farm took a reasonable position to oppose the motion based on the evidence before the court.
[ 72 ] Consequently, I order no costs for the motion except for the thrown away costs of $175, which I order Shakur to pay to State Farm within 30 days of this order.
[ 73 ] I thank counsel for their thorough written and oral submissions which were of great assistance to the court.
Master Benjamin Glustein
DATE: October 26, 2012
[1] (a date Shakur’s counsel acknowledged at the hearing was a typographical error as the Dismissal Order is dated September 20, 2011)