COURT FILE NO.: 06-CV-310293
MOTION HEARD: OCTOBER 30, 2012
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: William O’Neill and 112992 Ontario Inc., operating as The Canadian Cancer Research Group
v.
CTV Television Inc., CTV Inc., CTV Television Network Ltd., Malcolm Fox, Allan Fryer, Robert Osborne and Bell Globemedia Inc.
BEFORE: MASTER R.A. MUIR
COUNSEL: Timothy S.B. Danson for the plaintiffs Peter M. Jacobsen for the defendants
REASONS FOR DECISION
[1] The plaintiffs bring this motion pursuant to Rules 3.02, 24.1 and 48 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) for an order extending the date by which this action must be set down for trial. The plaintiffs also seek additional or alternative relief extending the date for mediation or dispensing with mediation. The defendants oppose the granting of the relief requested on this motion.
NATURE AND PROGRESS OF THE ACTION
[2] This action is a claim by the plaintiffs for damages for defamation arising from a program called “Dr. Hope” which was broadcast by CTV on January 28, 2006 as part of an episode of an investigative journalism telecast known as W5. The “Dr. Hope” program apparently focused on what the broadcast referred to as an alternative cancer treatment clinic operated by the plaintiffs in the City of Ottawa.
[3] The plaintiffs’ notice of action was issued on April 27, 2006. On July 7, 2011, Master Haberman made a consent order that required, among other things, that this action be set down for trial by July 15, 2012. Her order also set out a timetable for a number of other steps including examinations for discovery (April 30, 2012 for the plaintiffs and May 30, 2012 for the defendants) and mediation (July 15, 2012).
[4] Master Haberman’s order was necessary because, as of July 7, 2011, this litigation had progressed only as far as the production stage despite the passage of more than five years from the date it was commenced. In the years leading up to the July 7, 2011 order, two other timetable orders were made by this court (Master Hawkins at a status hearing on October 10, 2008 and Master Graham as a result of a motion on July 6, 2010). Neither of those orders was completely adhered to by either side and a further extension order became necessary. It appears that in June 2011, the plaintiffs agreed that if this action was not set down for trial by July 15, 2012, it would be dismissed on consent. This agreement apparently allowed Master Haberman’s July 7, 2011 order to be made on consent.
[5] Much progress was made after Master Haberman’s order. All parties have now been discovered. The examinations for discovery were conducted over a period of several months for a total of four days. In addition, an examination of a witness before trial has been conducted pursuant to Rule 36.01. In fact, it appears that all steps required by Master Haberman’s order were completed on time other than the attendance of the parties at a mediation session.
[6] The plaintiffs served their trial record on June 29, 2012. However, the court office would not accept the trial record for filing due to the fact that this action is subject to the mandatory mediation requirements of Rule 24.1 and a mediation session had not taken place and no date for the mediation had been agreed to by the parties. As the deadline to set this action down for trial approached, the defendants refused to agree to any further revisions to the timetable, including extending the date for the mediation session or consenting to an order dispensing with mediation. As a result, the plaintiffs brought this motion. It should be noted that the registrar has not dismissed this action pending the outcome of this motion.
APPLICABLE LAW AND ANALYSIS
[7] I agree with the defendants that a motion of this nature in these circumstances is similar to a motion to set aside a registrar’s dismissal order made under Rule 48.14. Indeed, such an order would have been made on July 16, 2012 had this motion not been filed on July 13, 2012. As indicated above, this is the third timetable order that has not been fully complied with. This action is six years old and it has yet to be set down for trial. In my view, it is therefore appropriate to apply the test that would have been applicable had the registrar dismissed this action as scheduled on July 16, 2012.
[8] The law relating to motions to set aside a registrar’s dismissal order made under Rule 48.14 is summarized in my decision in 744142 Ontario Ltd. v. Ticknor Estate, 2012 ONSC 1640 (Master). At paragraph 32 of that decision I set out the applicable principles as follows:
- 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]
[9] These are the factors and principles I have considered and applied in determining the issues on this motion. My analysis in this regard leads me to the conclusion that it is in the interest of justice that the date for setting this action down for trial be extended.
MOTION BROUGHT PROMPTLY
[10] The defendants, quite properly, do not take issue with the plaintiffs’ position that this motion has been brought promptly, having regard to the nature of the motion and the availability of counsel and the court. The plaintiffs’ motion record was prepared and delivered two days after it became clear to the plaintiffs that the defendants would not agree to any further revisions to the applicable timetable. As well, the plaintiffs appear to have scheduled this motion for one of the earliest available dates.
[11] The plaintiffs have therefore satisfied this element of the Reid test.
INADVERTENCE
[12] I am also satisfied that the plaintiffs have established that their failure to set this action down for trial in a timely manner, and in compliance with the order of Master Haberman, was a result of inadvertence. In my view, the plaintiffs simply overlooked the mediation issue. No other explanation makes sense. They completed their discoveries, served a trial record and attempted to have it filed. No plaintiff would prepare for and attend on four days of discovery, and then serve a trial record, unless he had a firm intention to proceed with his claim. The evidence before the court reveals a great deal of progress after Master Haberman made her timetable order. There is simply no evidence from which the court could infer an intention on the part of the plaintiffs to abandon their claim. The failure of the plaintiffs to consider the impact of the mediation issue had to have been inadvertent.
[13] I am therefore satisfied, on balance, that the failure to comply with the mediation deadline and the set down date in Master Haberman’s order was inadvertent and that this element of the Reid test has been met.
LITIGATION DELAY
[14] I am not satisfied that the plaintiffs have provided a satisfactory explanation for all of the alleged delay the defendants take issue with. However, a substantial portion of the delay has been sufficiently explained to my satisfaction. The onus is on the plaintiffs to provide an adequate explanation for the delay from the commencement of the action up to the date the dismissal order would have been made. I accept that this is a complicated action involving many productions and several parties. However, those factors alone do not explain why it took nearly six years to begin oral discovery.
[15] The only step taken between the close of pleadings in July 2006 and the status hearing before Master Hawkins on October 10, 2008 was the service of an unsworn affidavit of documents by the plaintiffs (and that was only served after the court had issued a status notice on July 2, 2008). There is simply no explanation for this period of delay, let alone an adequate one.
[16] Following the October 2008 status hearing, the plaintiffs appear to have moved ahead with some of the steps necessary to advance their claim. A six volume affidavit of documents with Schedule A productions was served on March 3, 2009. The plaintiffs made several requests shortly thereafter to obtain the defendants’ productions. The defendants’ affidavits of documents were not actually served until September 2009. The plaintiffs were apparently not content with the defendants’ September 2009 productions but did not follow up in that regard until the spring of 2010. In May 2010, the defendants delivered three volumes of productions. Although there is an unexplained gap between the end of September 2009 and April 2010, I am satisfied that the plaintiffs have demonstrated some progress during that time period and, overall, have provided an adequate explanation for the period of delay between October 2008 and the spring of 2010.
[17] A motion to extend time was brought before Master Graham on July 6, 2010. As a result of that motion, Master Graham made a timetable order on consent extending the set down deadline to July 15, 2011. Another unexplained gap in time occurs between July 2010 and the spring of 2011. It appears that little effort was made by the plaintiffs to advance the litigation during that time period. There is certainly little by way of explanation in the evidence.
[18] The plaintiffs do turn their attention to this action once again in the spring of 2011 and efforts are made to schedule discoveries in advance of the motion before Master Haberman in July 2011. Those efforts were not successful and it then became necessary to seek a further extension of time which led to Master Haberman’s order of July 7, 2011. I am, however, satisfied that real progress was made after the July 7, 2011 timetable order, as I have set out above.
[19] The evidence reveals several troubling gaps in the plaintiffs’ explanation for the slow progress of this action. However, several of the periods of delay have been adequately explained. The plaintiffs’ explanation of the litigation delay does not need to be perfect. It just needs to be adequate. I am satisfied that the overall explanation is adequate, especially given the real and significant progress made following the July 2011 timetable order.
[20] I have therefore concluded that the plaintiffs have also satisfied this element of the Reid test.
PREJUDICE
[21] I am satisfied that the plaintiffs have met the onus placed upon them to rebut the presumption of prejudice. Where a limitation period has passed, as it has here, a presumption of prejudice arises and the onus rests with the plaintiffs to rebut that presumption. The strength of this presumptive prejudice increases with the passage of time. See Wellwood v. Ontario (Provincial Police), 2010 ONCA 386 at paragraph 60.
[22] Plaintiffs can overcome the presumption of prejudice by leading evidence that all relevant documents have been preserved, that key witnesses are available or that certain aspects of the claim are not in issue. See Wellwood at paragraph 62. In my view, the plaintiffs have done so.
[23] First, I do not view the strength of the presumptive prejudice to be particularly strong on the facts before me. It is true that this action was commenced more than six years ago. However, the telecast at the centre of the plaintiffs’ allegations appears to have been largely produced in 2005 and broadcast in January 2006, not long before this action was started. This period of delay is to be contrasted with the very significant periods of delay encountered in the authorities relied upon by the defendants such as Marché D’Alimentation Denis Thériault Lteé v. Giant Tiger Stores Ltd., 2007 ONCA 695 (10 years) and Hamilton (City) v. Svedas Koyanagi Architects Inc., 2010 ONCA 887 (also10 years). In Marché, more than five years passed after the action was dismissed before the plaintiff moved to have the dismissal order set aside. In Hamilton, the court found that the trial of that action would require an examination of events and documents going back more than 15 years.
[24] Second, the defendants had early notice of the claim and have been represented by capable counsel throughout. Most relevant documents appear to have been preserved and exchanged. The productions that have been exchanged are voluminous. The parties have been fully examined over a period of four days. The evidence of one witness has been preserved by an examination under Rule 36.01.
[25] Third, in my view, the defendants have not demonstrated any actual prejudice. The defendants argue that they will be prejudiced at trial because a number of potential witnesses (including all of the individual defendants) are no longer employed by CTV. However, there is no suggestion that these witnesses are no longer available to give evidence due to death, incapacity or because he or she cannot be found. The fact that they no longer work for CTV may make securing their evidence more difficult and time consuming for CTV and its counsel, but that alone does not constitute non-compensable prejudice. As I indicated above, some of the potential witnesses who are no longer CTV employees are defendants themselves (Malcolm Fox, Allan Fryer and Robert Osborne). There is certainly no suggestion that they are no longer motivated or interested in continuing to defend themselves against the plaintiffs’ allegations simply because they have parted ways with CTV.
[26] As a result, it is my view that the plaintiffs have satisfied this element of the Reid test.
OTHER FACTORS
[27] In addition to the Reid factors discussed above, I am of the view that one further factor is relevant to this motion. The actions of the plaintiffs in July 2012 would not have delayed the ultimate determination of this claim by a single day had the defendants simply agreed to conduct the mediation session after the action had been set down for trial. The trial record had been served. It just needed to be filed. Once it had been filed, the process leading to the fixing of pre-trial and trial dates would have been underway. Mediation could easily have taken place at the same time without any further overall delay. However, as Mr. Jacobsen makes clear in his letter of July 11, 2012, the defendants simply refused to agree to mediate this matter after July 15, 2012. The defendants continued to take this position even after Mr. Danson strongly urged them to reconsider, also in a letter dated July 11, 2012 and sent in response to Mr. Jacobsen’s letter. In my view, this factor favours the plaintiffs.
[28] The defendants also argued that the consent the plaintiffs provided in June 2011 is a factor the court should consider when determining what result would be just in the circumstances of this motion. On June 30, 2011, Mr. Danson wrote to Mr. Jacobsen and confirmed that his clients would consent to an order dismissing this action if it was not set down by July 15, 2012. I agree that this consent would be an appropriate consideration had the plaintiffs actually been seeking an extension of the set down date in July 2012. However, all the plaintiffs were seeking in July 2012 was the defendants’ consent to mediating this action after the action was set down for trial. The defendants refused to agree to this request. If they had agreed, the action would have been set down by July 15, 2012 as agreed to by Mr. Danson on behalf of his clients. The extension of the set down date only became necessary when the defendants refused the plaintiffs’ request to mediate after July 15, 2012. For these reasons, I do not view this factor as relevant or one which in any way assists the defendants.
CONCLUSION
[29] When deciding motions of this nature the court is to apply a contextual approach in which the court weighs all relevant factors to determine the result that is just in the circumstances. The court must, of course, balance the strong public and private interest in promoting the timely resolution of disputes with the entitlement of a plaintiff to have a claim determined on its merits.
[30] When applying the test set out above, it is not necessary for the moving party to rigidly satisfy all of the Reid factors and any other relevant factors. Of the factors the court is to consider on motions such as this, prejudice is the key consideration. In my view, the plaintiffs have, on balance, satisfied all of the relevant factors, including the key factor of prejudice. I am therefore satisfied that it is just in the circumstances to extend the set down date as requested by the plaintiffs.
COSTS
[31] The plaintiffs have been completely successful on this motion. Ordinarily they would be entitled to their costs. However, they have also received an indulgence from the court. They were unable to comply with the set down date in Master Haberman’s order due to the fact that they overlooked the requirement for mandatory mediation. This happened despite the plaintiffs being fully aware of the requirement, given that it was explicitly set out in Master Haberman’s timetable order. In addition, the plaintiffs’ evidence failed to address and satisfactorily explain several gaps in the progress of this action. Finally, it is certainly fair to say that this action has not moved forward with the kind of speed one would ordinarily expect with a claim of this nature. The party who commences an action bears the primary responsibility for its progress. The defendants have had this very serious claim hanging over their heads for many years and they are just as entitled as the plaintiffs are to their day in court.
[32] The defendants, however, go further and take the position that they should be entitled to costs regardless of the outcome of this motion. In my view, however, the conduct of the plaintiffs does not rise to the level that would attract such a costs order. It is true that the plaintiffs failed to comply with the July 2011 timetable order in one important respect and that this action has been dragging on for far too long. However, the plaintiffs did comply with Master Haberman’s order in all other respects. In addition, this motion could have been avoided had the defendants consented to conducting the mediation session after the action was set down.
[33] For these reasons, it is my view that it is fair and reasonable in the circumstances that there be no order as to the costs of this motion.
ORDER
[34] I therefore order as follows:
(a) the time for filing the trial record is hereby extended to November 8, 2012;
(b) the registrar shall accept the trial record for filing despite the fact that no mediation has taken place;
(c) undertakings shall be answered by December 21, 2012;
(d) any discovery motions shall be heard by April 30, 2013;
(e) mediation shall take place by June 28, 2013;
(f) there shall be no order with respect to the costs of this motion.
Master R.A. Muir
DATE: October 31, 2012