SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 08-CV-369307
DATE HEARD: October 25, 2012
ENDORSEMENT RELEASED: November 13, 2012

RE: JOAN TRACEY v. LEON’S FURNITURE LIMITED

BEFORE: Master R. Dash

COUNSEL:
Robert H. Waddell, for the plaintiff
Jeffrey E. Feiner, 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 June 1, 2012 dismissing the action for delay. The action was dismissed under rule 48.14(5) when the action was not set down for trial within the deadline set out in a status hearing order and no steps were taken to extend the deadline.

[ 2 ] The action is for constructive dismissal of the plaintiff occurring in May 2008. The action was commenced by statement of claim issued on December 23, 2008. The plaintiff claims she was subject to harassment, undue pressure and intimidation and as a result of unilaterally imposed fundamental changes to her job she was constructively dismissed. She also claims for mental distress. The defendant filed a notice of intent to defend on February 2, 2009 and served a demand for particulars on February 10, 2009.

[ 3 ] On February 17, 2009 the plaintiff’s husband died after contracting a sudden illness the previous week. The plaintiff, though her son, told her lawyer, Mr. Waddell, that the lawsuit should be “put on hold”. On the same date Mr. Waddell told the defendant’s lawyer that because of that death he had been unable to obtain instructions and said that he required another 2 or 3 weeks to answer the particulars. Three months later, on May 26, 2009 the plaintiff served her reply to the demand for particulars.

[ 4 ] Nothing further happened in the litigation for almost a year, when on May 3, 2010 the defendant delivered its statement of defence. The defendant has not explained its lengthy delay in delivering a defence. In its statement of defence the defendant denies fundamental changes to the plaintiff’s employment and pleads that the plaintiff resigned or alternatively was terminated for cause for refusing to attend work and perform her duties. It denies that damages were suffered and pleads a failure to mitigate.

[ 5 ] Again nothing happened in the action for another 9 months until the court issued a status notice on February 3, 2011. On March 8, 2011 Mr. Waddell advised the defendant’s lawyers that his client had required time to handle various family matters since her husband’s death but he now had instructions to move forward with the action. He suggested that mediation be arranged. On March 9 the defendant’s lawyer advised that the defendant would not proceed to mediation until examinations for discovery had first been conducted and he proposed discovery dates for the following month. A series of correspondence was exchanged between March and June 2011 with the plaintiff asking for mediation dates before discovery and the defendant reiterating that examinations for discovery be conducted before mediation.

[ 6 ] On May 11, 2011 the plaintiff served her affidavit of documents. I have not been made aware of its contents. On June 3 Mr. Waddell proposed a timetable that included mediation in July and discoveries by the end of September. When the defendant again reiterated that discoveries must precede mediation, Mr. Waddell proposed a different timetable on June 17, 2011 which included examinations for discovery by September 30, 2011, mediation by October 31, 2011 and a set down deadline of January 31, 2012. Mr. Waddell did not suggest that the plaintiff was unable to comply with that timetable.

[ 7 ] On June 20, 2011 the parties agreed on a formal timetable which they submitted to the court for a status hearing in writing. On June 21, 2011 Master Abrams accepted the proposed timetable and incorporated it into the status hearing order. The timetable as ordered included a deadline for the defendant’s affidavit of documents by July 15, 2011, examinations for discovery by September 30, 2011 and mediation by December 31, 2011. Master Abrams’ order required that the action be set down for trial by the agreed deadline of May 31, 2012, failing which it would be dismissed by the registrar.

[ 8 ] On July 27, 2011 the defendant served its unsworn affidavit of documents as well as a draft discovery plan. The plaintiff never responded to the proposed discovery plan. Nothing further transpired in the litigation. On March 27, 2012 defendant’s counsel asked Mr. Waddell if the plaintiff intended to proceed with the action. Once again, Mr. Waddell did not answer.

[ 9 ] Nothing was done by the plaintiff to advance the litigation from the date of the status hearing order, June 21, 2011, until the action was dismissed for delay by the registrar on June 1, 2012. No attempt had been made by the plaintiff to set dates for examinations for discovery or for mediation within the deadlines set out in the status hearing order or at all. The action had not been set down by the deadline in the status hearing order and no motion was brought to extend the deadline.

THE LAW ON SETTING ASIDE A REGISTRAR’S DISMISSAL

[ 10 ] I summarized the law on setting aside a registrar’s dismissal order in my recent decision in Shome v. Apotex Inc. [1] and I shall plagiarize verbatim from my said decision as follows.

[ 11 ] 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 [2] 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 [3] 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.

[ 12 ] 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 [4] which I summarized in Vaccaro v. Unifund Insurance [5] 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.”

[ 13 ] 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. [6] 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 [7] . 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.

[ 14 ] 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.

ANALYSIS

[ 15 ] I begin by examining the four Reid factors on a contextual basis.

Explanation for the Delay

[ 16 ] There was no appreciable delay before the death of the plaintiff’s husband on February 17, 2009. The delay in providing an answer to the demand for particulars for three months until May 26, 2009 is understandable. The defendant has never explained why it then took almost a year after receiving the particulars to deliver its statement of defence on May 3, 2010. The plaintiff of course has the primary responsibility for the progress of the action, and just as there is no explanation of why it took the defendant a year to deliver its statement of defence after receiving the particulars, there is likewise no evidence that the plaintiff was demanding a timely delivery of the statement of defence. In my view the defendant is primarily responsible for the unexplained delay from May 2009 to May 2010, although the plaintiff must to some extent share that blame, which will be considered in the overall context of delay from the time of her husband’s death in February 2009 until the action was dismissed for delay on June 1, 2012.

[ 17 ] From the date the statement of defence was received in May 2010 until the status notice was received in February 2011 nothing happened in the litigation. Between the date of the status notice and the date of the status hearing in writing on June 21, 2011 the plaintiff served her affidavit of documents and after a disagreement on whether discoveries or mediation should proceed first, the parties agreed on a timetable.

[ 18 ] On June 21, 2011 the status hearing order was issued. The order incorporated the timetable agreed upon by both parties. It required examinations for discovery by September 30, 2012. No effort was made to schedule discovery dates. Mediation was to be conducted by December 31, 2011. No effort was made to schedule that mediation. The action was to be set down by May 31, 2012. The action was not set down and the action was dismissed on June 1, 2012. The plaintiff failed to comply with even one aspect of the status hearing order. Nothing was done by the plaintiff to advance the litigation or comply with the court ordered timetable during the 11.3 months between the status hearing and the set down deadline.

[ 19 ] Looked at another way the plaintiff did nothing to advance the litigation from the time the statement of defence was served on May 3, 2010 until the set down deadline of May 31, 2012, a period of over two years other than to serve her affidavit of documents, suggest mediation and agree on a timetable, and nothing whatsoever was done in the last 11.3 months of that period.

[ 20 ] What is the plaintiff’s explanation for that delay? Until supplementary material was served the day before the return of the motion, the only evidence filed by the plaintiff dealing with the progress of the litigation was an affidavit by Mr. Waddell’s law clerk which attached a series of letters and emails plus one paragraph dealing with the alleged inadvertence in missing the set down deadline (which will be discussed further in these reasons) and one paragraph purporting to explain the delay.

[ 21 ] Here is what the legal assistant stated in his affidavit sworn October 16, 2012 as an explanation for the delay: “I have been informed and verily believe to be true that the plaintiff is elderly and has had a series of health related problems since her alleged constructive dismissal and since her husband’s unexpected passing.” The legal assistant does not identify the source of his information; for example he does not advise if the plaintiff spoke directly to him or if it came from Mr. Waddell (which would be inadmissible double hearsay) or if it simply came from the attached email from the client’s son on February 17, 2009 advising of his father’s death and asking for the litigation “to be put on hold”. The legal assistant does not identify the “health related problems” but merely attaches a series of prescription receipts in support of that statement. The prescriptions are not evidence of any specific illness or even of the type of condition for which such medications would be prescribed. There is also no evidence that those conditions would have prevented the plaintiff from participating in the litigation.

[ 22 ] On the day before the hearing of the motion, the plaintiff served two additional affidavits. One dealt with the alleged inadvertence in missing the deadline and this will be discussed later in these reasons. The second affidavit is from the plaintiff herself providing additional information about her medical condition. I determined that the affidavits were not proper reply to any issues raised in the defendant’s affidavits, but were rather supplementary material to bolster the plaintiff’s evidence. All of that evidence was known to the plaintiff at the time the original motion materials were served. Although it was not proper reply material, I nonetheless exercised my discretion to permit the affidavits since they were relevant to key issues of explanation of the delay and inadvertence, and because of the serious consequences if the plaintiff’s motion were refused.

[ 23 ] In her October 24, 2012 affidavit the plaintiff attaches an email she sent to Mr. Waddell on October 18, 2012 and “reiterates” its contents. She says in her email to her counsel:

I am 64 years of age...[M]y husband’s sudden passing in February 2009 was unexpected and very sudden. This event was devastating to me and has delayed and greatly affected my ability to cope with or advance my case against my employer...I always relied heavily on my husband’s advice, counsel and assistance under circumstances such as this. He was involved from the outset with regard to this matter until his unfortunate passing...I have been under a doctor’s care for the last few years suffering from various medical conditions and from time to time I have been on and off daily medications including...lorazapam and...citalopram. I...would like my action to continue against my previous employer...

[ 24 ] The plaintiff then adds to what she said in her email, averring as follows:

For further clarity to the attached email, my poor treatment by Leon’s during the last 9 months of my employment after 19 years of service contributed greatly to my on-going illness(es) including ...post traumatic stress disorder, depression and anxiety and I have been fighting poor health throughout 2010 to 2012 making it difficult to deal with this legal matter and I have had great difficulty adjusting to life without my husband who is no longer here to guide me in this matter.

[ 25 ] To paraphrase, the plaintiff claims that two events delayed and affected her ability to cope with this litigation. One was the poor treatment from her employer in 2007 and 2008 and the second was her devastation as a result of her husband’s death in February 2009. As a result of these two events she has suffered post traumatic stress disorder, depression and anxiety and has been on and off certain named medications. She has also has had difficulty in coping with the litigation without her husband’s guidance.

[ 26 ] I do not accept this evidence as a sufficient explanation of the litigation delay from the date that the statement of defence was served on May 3, 2010 until the set down deadline of May 31, 2012 for a number of reasons.

[ 27 ] While I have great sympathy for the plaintiff’s loss of her husband I cannot lose sight of the basic premise that as the plaintiff she has the primary responsibility for moving the action forward. Many plaintiffs in a wrongful dismissal proceeding have suffered poor, and occasionally harsh, treatment from their former employer. Plaintiffs lose loved ones. Many plaintiffs in a variety of actions suffer devastating injuries or depression and related psychological symptoms. That cannot be a reason to justify a failure to take any steps to move an action forward for over two years. This is particularly true of plaintiffs who have retained counsel to guide them in the progress of their litigation. While the plaintiff’s husband had provided guidance on her claim prior to his death in February 2009 it must be remembered that she had retained a lawyer throughout this time to provide her with legal advice and to pursue her litigation.

[ 28 ] The termination of her employment occurred 4½ years ago. The plaintiff’s husband passed away over 3½ years ago. There are parties to this lawsuit other than the plaintiff. The defendant too has rights to speedy civil justice. As the court of appeal stated in Giant Tiger : “Litigants are entitled to have their disputes resolved quickly so that they can get on with their lives.”

[ 29 ] If the plaintiff wished to rely on her PTSD and depression as a justification for being “unable” to proceed with the litigation for over three years (or two years if taken from the statement of defence), the court would have expected, at a minimum, a report from her health care provider substantiating that claim.

[ 30 ] It is clear from her son’s letter of February 17, 2009 to Mr. Waddell to put the litigation “on hold” and the resulting inactivity since that date, other than providing particulars in May 2009 and serving an affidavit of documents in May 2011, that the plaintiff had instructed her lawyer to put the file in abeyance. It was a deliberate decision not to advance the litigation. As stated in the first Reid factor and quoted in Giant Tiger : “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.” I appreciate that statement must be considered in light of the court of appeal’s admonition that the plaintiff need not rigidly satisfy all four Reid factors and all factors must be considered on a contextual basis. I also note that the court of appeal has distinguished cases where a lawyer or litigant has abandoned a file or put it into abeyance or has intentionally refused to proceed with an action from cases of inadvertence. [8]

[ 31 ] Although the plaintiff states that her husband’s passing has made it “difficult” to deal with this litigation, there is no evidence from any health practitioner that her depression or other medical condition has made it impossible for her to proceed. Further there is no evidence that her depression has prevented her lawyer from taking steps to comply with the timetable. Clearly the file was put into abeyance by Mr. Waddell, whether with or without his client’s instructions.

[ 32 ] What weighs most heavily against the court accepting the plaintiff’s explanation of the delay in the litigation is the fact that it was Mr. Waddell, presumably with the instructions of his client, who proposed the timetable in June 2011 (that was incorporated into the status hearing order) and which called for examinations for discovery by September 30, 2011. There is no evidence from Mr. Waddell or Ms. Tracey as to what led to that proposal. Presumably at that time the plaintiff must have instructed that she was able to proceed with examinations for discovery within the next three months. If the plaintiff did not give those instructions to Mr. Waddell, I would have expected evidence to that effect. No steps were taken to arrange those examinations for discovery. Mr. Waddell did not advise the defendant’s lawyers that his client was unable to comply with the very timetable suggested by her. There is then no evidence to explain why those examinations for discovery were never arranged as agreed by the parties and subsequently ordered by the court. There is no evidence as to what may have changed between June 2011 when the plaintiff presumptively was able to proceed with discoveries and three months later when the deadline for the discoveries passed.

[ 33 ] With respect to failure to take any steps in respect of the agreed status hearing order, I note that the failure to comply with a timetable set at a status hearing is really a second “kick at the can”. The plaintiff is asking for a second indulgence:

If the deadline for setting the action down made at the status hearing passes and the action has not been set down and in the result the action is dismissed by the Registrar under rule 48.14(4) [now 48.14(5)] the plaintiff, in asking to set aside that order, is in effect asking for a “second kick at the can”. He is asking for a second indulgence. The first was to extend the deadline set out under rule 48.14(1) and which resulted in the status notice and the extension order at the status hearing. The second is to extend yet again the deadline set at the status hearing which has now passed and which resulted in the dismissal. In my view the court, while still considering all factors to arrive at the result that is just in all the circumstances, should examine most carefully and in some detail the cause of the additional delay and why the second deadline was missed. The delay to be considered is now twofold – from the institution of the action to the date of the status hearing and then from the date of the status hearing to the date the action was dismissed. [9]

[ 34 ] Finally, if indeed the plaintiff has, for medical reasons, been unable to proceed with this litigation since 2009, there is no evidence before me that this has changed. In other words I have no assurance that she is now medically able to proceed with the litigation and attend examinations for discovery. While she now avers that she “would like my action to continue” I have no evidence or other assurance that she is any more capable of doing so now than over the last two years. Mr. Waddell told defendant’s counsel the very same thing back on March 8, 2011, some 20 months ago, that his “instructions are to move forward with this action”, yet the plaintiff failed to do so. There was no indication at that time or three months later when the consent timetable was incorporated into the status hearing order that the plaintiff’s condition prevented her from moving forward with the action. In a similar vein, the plaintiff never responded to the letter from defendant’s counsel on March 27, 2012 asking if the plaintiff intended to proceed with the litigation. There has been no explanation of what has changed for the plaintiff or other evidence that would demonstrate that she is now able to proceed.

[ 35 ] In my view the plaintiff has not adequately explained the litigation delay. She has failed to satisfy the first Reid factor.

Inadvertence in Missing the Deadline

[ 36 ] In his affidavit sworn October 16, 2012, Mr. Waddell’s legal assistant made the bald statement that the “parties did not complete the timetable in this matter within the proscribed time and through inadvertence the plaintiff failed to contact the court prior to May 31, 2012 to explain its circumstances and as a result failed to set this matter down for trial prior to May 31, 2012...and in the alternative, failed to seek an order for an extension prior to May 31, 2012.”

[ 37 ] In his “reply affidavit” sworn October 23, 2012, the legal assistant purports to explain the reference to inadvertence in his earlier affidavit as follows: “(i) The timetable and deadline for setting the matter down for trial was not diarized in the ordinary course as it ought to have been and as a result the date passed whereby our office failed to seek an amendment to the status hearing timetable before the deadline. (ii) Our office and staff forgot about the timetable in this matter after receiving it and as a result failed to comply and failed to seek a timetable extension, which we at all times intended to do. (iii) Mr. Waddell was on vacation in May 2012 and was travelling outside of the country celebrating his 25 th wedding anniversary and did not return until mid June 2012.”

[ 38 ] The affidavit would have more complete had it more fully explained Mr. Waddell’s system of diarizing “in the ordinary course” and how the firm failed to follow the ordinary course in this action. There is no explanation as to how and when the decision was made not to comply with the status hearing order. While I am sceptical about the explanation and suspect that the status hearing deadline was missed as part of the plaintiff and her lawyer holding the file in abeyance, the explanation of inadvertence has not been tested by cross-examination and there is no evidence to the contrary. Although the affidavit was delivered only the day before the return of the motion, the defendant made a decision not to seek an adjournment to cross-examine on it.

[ 39 ] In these circumstances I am satisfied that the penultimate dismissal arose through inadvertence. The plaintiff has satisfied the second Reid factor.

Moving Promptly to Set Aside the Dismissal

[ 40 ] The plaintiff’s lawyer learned of the dismissal order dated June 1, 2012 on or shortly after the date of the order. An amended notice of motion to set aside the dismissal was served on August 29, 2012. It appears that an earlier version of the notice of motion had been served but I was not advised of the date. In any event the defendant concedes that the plaintiff moved promptly to set aside the dismissal. The plaintiff has satisfied the third Reid factor.

Prejudice

[ 41 ] 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 [10] , it is invariably a “key consideration.” [11] 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. [12]

[ 42 ] It has now been 4½ since the cause of action arose (the termination from employment). Four years 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.

[ 43 ] 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. [13]

[ 44 ] The onus is on the plaintiff to rebut the presumption of prejudice and demonstrate that the defendant would not be prejudiced if the dismissal order is set aside. The plaintiff has provided not one scintilla of evidence to rebut the presumption of prejudice. There is not even a bald statement that the defendant would not be prejudiced as a result of the delay (not that such a statement would have any evidentiary value). Simply put, the issue of prejudice has not been addressed in the evidence proffered by the plaintiff.

[ 45 ] There is for example no evidence of what documents are available or preserved by the plaintiff. Although affidavits of documents have been exchanged, I have not seen the plaintiff’s affidavit of documents (served three years after her dismissal) nor have I been advised as to its contents or sufficiency or whether all relevant documents have been preserved and are contained therein. There is no evidence whether medical records are available to support her claims for mental distress. The defendant has also pleaded a mitigation defence. The onus is on the defendant to establish that with proper mitigation the plaintiff could have avoided all or part of her loss [14] , however the plaintiff’s efforts to find work are exclusively within her knowledge as supported by her mitigation documents, which she is obliged to produce. There is no evidence whether mitigation documents have been preserved.

[ 46 ] The plaintiff argues that all of the documents considered relevant by the defendant are set out in the defendant’s proposed discovery plan. While that is true, Mr. Waddell never responded to the proposed discovery plan and there is no evidence that the documents set out in therein have been preserved.

[ 47 ] The plaintiff has provided 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 and available to testify and that their memories are intact. There is no evidence of attempts to contact witnesses, for example co-workers. There have been no examinations for discovery.

[ 48 ] In my view the plaintiff has failed to rebut the presumption of prejudice and as such has not satisfied the fourth Reid factor.

[ 49 ] 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.

[ 50 ] The plaintiff pleads in her statement of claim that a series of incidents over a period of nine months prior to her dismissal amounted to a constructive dismissal, including undue pressure and intimidation “from her supervisors” to accept unilateral fundamental changes to her job description and several altercations between the plaintiff “and her supervisor(s)” in which false accusations were made against her that placed her integrity under scrutiny, and this was exacerbated by humiliating treatment from Mr. Leon, who appears to be a principal of the company, when she complained about her unfair treatment. In her answer to demand for particulars the plaintiff identifies the supervisors that subjected her to the unfair and intimidating treatment as Mr. Noronha and Mr. Kanagalingam.

[ 51 ] The defendant’s affiant on this motion testified that the plaintiff’s “direct supervisor at Leon’s, Mayurathan Kanagalingam, resigned from Leon’s on or about October 14, 2010” and Mr. Kanagalingam “is the focus of many of Ms. Tracey’s allegations.” He swears that the defendant’s contact information for Mr. Kanagalingam is no longer current and that the person who answered the phone at Mr. Kanagalingam’s last known telephone number had never heard of him. A Canada 411 search did not locate further information. He claims that Mr. Kanagalingam’s unavailability has prejudiced the defendant’s ability to effectively defend itself against the plaintiff’s allegations.

[ 52 ] If the defendant had exercised due diligence to locate and preserve evidence of Mr. Kanagalingam I would have agreed that his inaccessibility would, in light of the allegations involving his conduct which go to the root of the plaintiff’s claim, have amounted to prejudice. This is particularly so in light of the fact that Mr. Kanagalingam’s resignation in October 2010 occurred during the lengthy period of delay following receipt of the statement of defence in May 2010. If there was actual prejudice it could reasonably be said to arise from the delay.

[ 53 ] I do not however accept this as demonstrative of actual prejudice for two reasons. Firstly, all reasonable efforts to locate Mr. Kanagalingam must be more than a telephone call to a two year old telephone number and a Canada 411 search. There is no evidence of attempts to reach him by mail at his last known address. There is no evidence of a skip trace or even a social media search on the internet. There is no evidence of attempts to ask his former co-workers if they know his whereabouts. Secondly, the defendant had received the answer to the demand for particulars in May 2009, 17 months before Mr. Kanagalingam’s resignation, identifying Mr. Kanagalingam as a primary target of the plaintiff’s complaints. There is no evidence whether the defendant had obtained a statement from Mr. Kanagalingam during that time and if not, why not.

[ 54 ] While the difficulty in locating Mr. Kanagalingam is a factor in the determination of prejudice, I am not satisfied that by itself it amounts to actual prejudice.

[ 55 ] Nonetheless, as stated earlier, the onus is on the plaintiff to demonstrate that the defendant would suffer no prejudice if the action were reinstated and to rebut the presumption of prejudice caused by the passage of the limitation period. It would only be if the presumption were rebutted, that the onus would shift to the defendant to adduce evidence of actual prejudice.

[ 56 ] It would not have been difficult for the plaintiff in this action to have adduced evidence to rebut the presumption of prejudice, including evidence that all documents have been preserved and that she has contacted or been advised of relevant witnesses and that they are available and their memories unimpaired about the events in issue. The plaintiff has done the one thing she cannot do and that is to provide no evidence whatsoever to address the issue of prejudice.

[ 57 ] Having failed to convince the court that the defendant has not suffered prejudice arising from the delay and failing to rebut the presumption of prejudice I conclude that the plaintiff has failed to satisfy the fourth Reid factor.

CONCLUSION

[ 58 ] The plaintiff has failed to satisfy two of the Reid factors. She has failed to adequately explain the delay in this action. The events in issue took place 4 ½ years ago and the action itself is almost four years old without having progressed beyond pleadings and affidavits of documents. The plaintiff has not advanced the action since the statement of defence in May 2010, other than serve an affidavit of documents in May 2011 and has totally ignored all steps set out in the status hearing order which adopted a timetable to which she consented. She has placed her file in abeyance. The plaintiff is primarily responsible for the progress of her action and therefore she should generally suffer “the consequences of a dilatory regard for the pace of litigation”. [15] She has also failed to rebut the presumption of prejudice, often said to be the most important of the Reid factors.

[ 59 ] While I am sympathetic to the plaintiff’s alleged ill treatment at work in 2007 and 2008 and to her husband’s death in February 2009, they do not in my view excuse the extensive delays since those events. Although she now wants to proceed with the action, she has said that before. She claims her depression and PTSD have prevented her from engaging in the litigation, yet there is no evidence from her doctor to substantiate that and, if unable to proceed over the last three years, there is no evidence she is now capable. While the plaintiff has a right to have her claim for wrongful dismissal determined on the merits, that right is not absolute. The defendant also has rights to have the claims against it heard on a timely basis.

[ 60 ] I also bear in mind that the plaintiff not only failed to set the action down within two years of the first defence, resulting in the status notice, but she also failed to take steps to promote the action and set it down within the timelines in the status hearing order, to which she consented. I am of the view that in balancing the interests of both parties as well as the public’s interest in the timely resolution of disputes, a further indulgence is not appropriate.

[ 61 ] In exercising my discretion I have determined that that the order that is most just in the circumstances of this case is to refuse the motion to set aside the registrar’s dismissal. The action will not be re-instated.

COSTS

[ 62 ] The defendant was successful and is prima facie entitled to its costs of the motion. Even if I re-instated the action, the defendant would have been in a position to seek its costs as a result of the further indulgence that would have been granted to the plaintiff. The defendant however may consider whether in the plaintiff’s unfortunate circumstances it wishes to waive those costs. If the defendant seeks its costs of the motion it shall, within 10 days forward its brief costs submissions together with a costs outline (Form 57B) and dockets. The plaintiff may send responding submissions within 7 days thereafter. Costs of the action have already been awarded to the defendant in the registrar’s dismissal order, which order remains extant.

ORDER

[ 63 ] The motion by the plaintiff to set aside the order of the registrar dated June 1, 2012 is dismissed.

Master R. Dash

DATE: November 13, 2012