HEARD: OCTOBER 25, 2012
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Tamar Horn v. George Stefauis and Toronto Transit Commission
BEFORE: MASTER R.A. MUIR
COUNSEL: Michael Rubin for the plaintiff
Stephen Sargent for the defendants
REASONS FOR DECISION
1These reasons for decision are in relation to a contested status hearing at which the defendants required the plaintiff to show cause why her action should not be dismissed for delay pursuant to Rule 48.14(13) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the "Rules").
BACKGROUND
2This is a personal injury action. The plaintiff alleges that on September 10, 2007, she was a passenger on a bus operated by the defendant George Stefauis and owned by the defendant Toronto Transit Commission. The plaintiff alleges that while she was attempting to take her seat, the bus suddenly accelerated thereby causing the plaintiff to lose her balance and fall to the floor of the bus. The plaintiff alleges that she suffered severe external and internal injuries as a result. She is claiming damages for pain and suffering, along with damages for loss of income and out of pocket expenses. The defendants have denied any liability for the accident and dispute the plaintiff's claim for damages.
3The statement of claim in this action was issued on July 7, 2009. The defendants had previously been placed on notice of the plaintiff's potential claim by way of a letter from her lawyer dated October 25, 2007.
4It appears that the statement of claim was served shortly after it was issued. On August 25, 2009, the defendants' lawyer, Chad Townsend, sent a letter to the plaintiff's lawyer (not Mr. Rubin) advising that he had been retained by the defendants and seeking production of various documents to assist him in evaluating the plaintiff's claim. The documents he requested included medical and employment records along with other documents relating to an earlier slip and fall accident in which the plaintiff had apparently been injured. On October 26, 2009, Mr. Townsend again wrote to the plaintiff's lawyer indicating that the name of the operator of the bus had been misspelled in the statement of claim and following up on the documents request he had made in his letter of August 25, 2009. On December 18, 2009, Mr. Townsend again wrote to the plaintiff's lawyer to follow up on his requests and raised the issue of a possible security for costs motion as it appeared that the plaintiff may not have been ordinarily resident in Ontario. Mr. Townsend asked for a reply within 30 days.
5On January 7, 2010, the defendants served their statement of defence and jury notice. It appears that the plaintiff's lawyer had still not responded to any of Mr. Townsend's letters. In fact, it appears that there was no communication of any kind from the plaintiff's lawyer to Mr. Townsend until May 2010. On May 25, 2010, the plaintiff's lawyer wrote to Mr. Townsend to advise that she had just assumed carriage of the file and to request that the defendants deliver their affidavits of documents and copies of their productions as soon as possible. No mention is made of Mr. Townsend's various letters and requests.
6Mr. Townsend responded by letter dated June 10, 2010 in which he indicated that he had not received a response to his various requests and that he had booked a date in September 2010 for the hearing of the defendants' security for costs motion. The plaintiff's lawyer responded by stating that she was not available on the date selected by Mr. Townsend and that he should call her to discuss the matter in person. Mr. Townsend's evidence is that he then called the plaintiff's lawyer and left a voice mail message but his call was never returned.
7There was a further period of silence from the plaintiff between June 2010 and February 2011. On February 15, 2011, the plaintiff's lawyer wrote to Mr. Townsend and enclosed a chart setting out the various productions requested by Mr. Townsend. The plaintiff's lawyer had apparently requested some of these documents from third parties during the preceding months. For example, it appears that request letters were sent to medical practitioners in September 2010 and February 2011. Mr. Townsend responded to this letter on February 23, 2011. In that letter he suggested that a mediation session and discoveries be scheduled. In that regard, Mr. Townsend provided suggested dates on which to hold the discoveries. The plaintiff's lawyer responded to Mr. Townsend on March 17, 2011 and advised that her client would be returning to Canada in mid-June 2011 and would remain in Canada until August 2011. She also requested that Mr. Townsend contact her office with available dates for that time period. The defendants' unchallenged evidence is that Mr. Townsend's assistant then attempted to contact the plaintiff's lawyer's assistant on three occasions but none of her calls were returned.
8Nothing further happened between April 2011 and January 2012. On January 16, 2012, the court issued a status notice pursuant to Rule 48.14(1) due to the fact that more than two years had passed since the defendants filed their statement of defence and this action had not been placed on the trial list or otherwise disposed of during that time period. On March 20, 2012, the plaintiff's lawyer served and filed a status hearing request form. She also provided Mr. Townsend with a proposed timetable for the completion of the remaining steps in this action. Mr. Townsend replied on March 22, 2012 and indicated that his clients would require the plaintiff to show cause why this action should not be dismissed.
9The status hearing was scheduled for June 7, 2012. The defendants served their affidavit of documents on May 28, 2012. The plaintiff had still not served her affidavit of documents as of the date of the status hearing (an unsworn affidavit of documents was served on June 8, 2012 but a sworn version has still not been served). The June 7, 2012 status hearing was adjourned at my initiative in order to allow the parties an opportunity to serve and file evidence. The status hearing was ultimately heard be me on October 25, 2012.
ANALYSIS
10Rule 48.14(13) provides as follows:
48.14(13) At the status hearing, the plaintiff shall show cause why the action should not be dismissed for delay and,
(a) if the presiding judge or case management master is satisfied that the action should proceed, the judge or case management master may,
(i) set time periods for the completion of the remaining steps necessary to have the action placed on or restored to a trial list and order that it be placed on or restored to a trial list within a specified time,
(ii) adjourn the status hearing to a specified date on such terms as are just, or
(iii) if the action is an action to which Rule 77 may apply under rule 77.02, assign the action for case management under that Rule, subject to the direction of the regional senior judge,
(iv) make such other order as is just; or
(b) if the presiding judge or case management master is not satisfied that the action should proceed, the judge or case management master may dismiss the action for delay.
11The applicable test to be applied on a contested status hearing is set out in the decision of the Court of Appeal in Khan v. Sun Life Assurance, 2011 ONCA 650 at paragraph 1:
[T]he appellant [plaintiff] bore the burden of demonstrating that there was an acceptable explanation for the involved litigation delay and that, if the action were allowed to proceed, the respondent [defendant] would suffer no non-compensable prejudice.
12The test is conjunctive. The presiding judge or case management master may still dismiss the plaintiff's action even in situations where the delay has been satisfactorily explained or the plaintiff has demonstrated that the defendant would not be prejudiced. See 1196158 Ontario Inc. v. 6274013 Canada Ltd., 2012 ONCA 544 at paragraph 32. The court must balance two important competing principles of our system of civil justice: the public's interest in discouraging delay and the preference for a determination of disputes on their merits. Ultimately, however, the decision of the court on a contested status hearing is a discretionary one and the court should make the order that is just in the circumstances of each particular case. See Koepcke v. Webster, 2012 ONSC 357 (Master) at paragraph 23.
13Although this case is certainly a "close call" I have come to the conclusion that the plaintiff has met the applicable test and that this action should be allowed to continue. The progress of this litigation has been far from ideal. There are several periods of unexplained delay and a disturbing pattern of ignoring communications from counsel for the defendants. The action has only progressed as far as the pleadings and productions stage and I note that even now the plaintiff has failed to serve a sworn affidavit of documents.
14However, some allowance can be made for the fact that the plaintiff lives, for the most part, in Israel and this appears to have delayed the document collection and discovery process. There was also a change in the lawyer responsible for the action. It can also be inferred that the plaintiff was perhaps reluctant to proceed given the possibility of a security for costs order hanging over her head. The delay to date has not been unduly excessive. The initial return date of this status hearing was approximately 29 months after the defendants filed their statement of defence. The events giving rise to this action took place five years ago. This is to be contrasted with the facts in 1196158 Ontario Inc. where the status hearing judge found that the adjudication of that claim would require an examination of documents and events going back more than 15 years and the plaintiff in that action had already been afforded one indulgence at a status hearing. See 1196158 Ontario Inc. at paragraph 14. Moreover, when served with the status notice, the plaintiff did propose a reasonable plan for the completion of this action that would have seen it set down for trial by December 30, 2012. It would have been preferable for the plaintiff herself to have filed an affidavit confirming her intention to pursue this claim. However, such an affidavit is not essential. See Khan v. Sun Life Assurance, 2011 ONSC 455 at paragraph 13; affirmed, 2011 ONCA 650.
15I am also satisfied that there will be no non-compensable prejudice to the defendants. Although there may be issues with respect to liability that will require the jury to consider oral evidence from witnesses, most of the issues in this action will likely turn on documentary evidence. It now appears from the evidence, and from the submissions of counsel, that the plaintiff's relevant and important documents are available. Her evidence has been preserved. All important witnesses are also available. The defendants had early notice of this claim and presumably were in a position to conduct their own investigation. They have preserved their documents and other evidence. I note that the defendants' affidavit of documents, including copies of their Schedule A productions, was served on May 28, 2012. There is no evidence from the defendants of any actual prejudice, other than the general suggestion that witnesses' memories will have faded over time.
16The facts before me are distinguishable from other cases where a plaintiff's action was dismissed at a status hearing, such as 1196158 Ontario Inc. and Khan. As I indicated above, the period of delay in 1196158 Ontario Inc. was significantly greater than the delay in this action. As well, the plaintiff's action in that case was dismissed at a second status hearing after the plaintiff completely ignored what the status hearing judge described as a "lifeline" given to it at the first status hearing. In Khan, it appears that the defendant established actual prejudice arising from the plaintiff's delay. That is not the situation here.
CONCLUSION
17I have therefore concluded that it is appropriate, in the circumstances of this action, that I exercise my discretion to allow the plaintiff's claim to proceed. However, it is necessary that a timetable be imposed to ensure that the remaining steps take place as quickly as possible.
COSTS
18The plaintiff is not seeking her costs of this status hearing. The defendants argued that they should be entitled to costs regardless of the outcome. There is authority for the proposition that an unsuccessful party may be entitled to its costs of a contested status hearing. See Koepcke at paragraph 43. However, I do not view the conduct of the plaintiff in this action as rising to the level that would attract a punitive costs order. The progress of this action, while not perfect, has been explained to the court's satisfaction and I have found no prejudice to the defendants. In Koepcke, Master Dash found that the plaintiffs had been granted a substantial indulgence and concluded that it was appropriate to make a costs order against the successful plaintiffs due to their deliberate decision to hold that action in abeyance without advising the defendant. In my view, in the circumstances before me, it is fair and reasonable that there be no order with respect to the costs of the status hearing.
ORDER
19I therefore order that the plaintiff's action be allowed to continue on the basis of the following timetable:
(a) the plaintiff shall serve a sworn affidavit of documents by January 18, 2013;
(b) examinations for discovery shall be completed by February 28, 2013;
(c) discovery motions shall be heard by July 31, 2013;
(d) mediation shall take place by September 30, 2013; and,
(e) this action shall be set down for trial by October 31, 2013, failing which it shall be dismissed by the registrar without further notice.
20Finally, there shall be no order with respect to the costs of this status hearing.
Master R.A. Muir
DATE: October 31, 2012