COURT FILE NO.: 05/19048

DATE: 2012-11-22

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Erron Thomas

William G. Scott, for the Plaintiff

Plaintiff

• and -

Randy McLelland

Kieran C. Dickson, for the Defendant

Defendant

• and -

Echelon General Insurance Company

Unrepresented

Defendant

HEARD: October 3, 2012

THE HONOURABLE MR. JUSTICE G.A. CAMPBELL

REASONS FOR JUDGMENT

Facts

[1] This is the most recent motion in an unnecessarily protracted and delayed case, arising from a motor vehicle accident that took place in St. Catherines on June 14, 2004. The Plaintiff, Erron Thomas, brings a motion to set aside the Registrar’s Dismissal Order dated February 4, 2008. The Defendant, Randy McLelland, seeks to have this motion dismissed. The action against the Defendant, Echelon General Insurance Company (“Echelon Insurance”), has also been dismissed.

[2] Following the accident, Mr. Thomas retained Lou Ferro as counsel. This motion arises as a result of Mr. Ferro’s disregard for and indifference to all timelines, rules and court orders, issued in this case.

[3] By August 14, 2004, Mr. Ferro had been retained and wrote to Echelon Insurance requesting information regarding the accident. Mr. Ferro received a response on October 5, 2004. He filed a Statement of Claim on July 11, 2005. The Statement of Claim was served on Echelon Insurance on July 13, 2005. That defendant duly filed a Notice of Intent to Defend on the same day. Mr. McLelland was served with the Statement of Claim on August 2, 2005. He subsequently served a Statement of Defence on August 22, 2005.

[4] The examination for discovery of Mr. Thomas and Mr. McLelland took place on December 21, 2005. Over the next year, responses to undertakings and other information was exchanged between counsel. Finally, on January 2, 2007, counsel for Mr. McLelland wrote to Mr. Ferro requesting the matter be set down for trial or discontinued within 30 days.

[5] On July 12, 2007, Justice Scime ordered Mr. Ferro to produce the trial record within 90 days, failing which the matter would be dismissed. On the day Justice Scime’s order was set to expire, October 12, 2007, Mr. Ferro served but did not file the trial record. As a result, a status notice was issued on October 24, 2007.

[6] At Mr. Ferro’s request, the Court issued a Notice of Status Hearing returnable on December 20, 2007. Counsel for Mr. McLelland duly reminded Mr. Ferro that the trial record had not yet been filed and requested that he file it prior to the Status Hearing.

[7] On December 20, 2007, Justice Crane ordered that the trial record be filed within 30 days. Again, Mr. Ferro failed to file the trial record. The action was subsequently dismissed on February 4, 2008.

[8] As a courtesy, on February 7, 2008 counsel for Mr. McLelland wrote to advise Mr. Ferro of the dismissal. The next month a law clerk from Mr. Ferro’s office responded, indicating that she understood Justice Crane’s order to mean that she had until March 2008 to file. Mr. Ferro’s office then prepared motion material to set aside the dismissal. The material was dated September 23, 2008. It was not served nor filed.

[9] Failing to hear back from Mr. Ferro, Mr. McLelland’s counsel eventually closed his file.

[10] In April 2010 – two years after Mr. McLelland’s counsel last heard from Mr. Ferro’s office – Mr. Ferro wrote to him suggesting that the two parties meet for mediation. Mr. McLelland’s counsel did not respond.

[11] In January 2011, three years after the dismissal, Mr. Ferro’s office sought to determine whether the motion material drafted in September 2008 had been served or filed. Mr. Ferro indicated that the process server, who was sent to the court to inquire into the issue, did not provide a response to him. Mr. Ferro did nothing.

[12] On March 5, 2012, over four years after the administrative dismissal in February 2008, Mr. Ferro brought this motion to set aside the dismissal.

Law

[13] The parties agree that the factors that the court should consider in setting aside a dismissal order were established in Reid v. Dow Corning Corp., (2001) 11 C.P.C. (5th) 80 at para. 41 (Ont. S.C.J.) reversed on other grounds 48 C.P.C. (5th) 93 (Ont. Div. Ct.):

1. Explanation of Litigation Delay

2. Inadvertence in Missing the Deadline

3. The Motion is Brought Promptly

4. No Prejudice to the Defendant

[14] The Ontario Court of Appeal has indicated that a contextual approach to evaluating these factors is preferable to a rigid test in which plaintiffs must satisfy each of the factors (Scaini v. Prochnicki, 2007 ONCA 63, 85 O.R. (3d) 179 at paras. 21-24). As a result, courts must consider and weigh all four factors to determine what is just in all the circumstances of the particular case.

Explanation of Litigation Delay

[15] The litigation prior to the administrative dismissal in February 2008 could have been conducted much more efficiently; however, Mr. Ferro has explained the steps his office took during that time to move the action forward.

[16] On the other hand, Mr. Ferro did not explain the large gaps in communication after the dismissal order in February 2008. It took Mr. Ferro until April 2010 to write to Mr. McLelland’s counsel inquiring about mediation. Moreover, Mr. Ferro did not explain the lapse of an additional two years before bringing this motion in March 2012.

[17] The fact that counsel for the Defendant closed his file on this action strongly suggests that Mr. Ferro did not demonstrate any intention to advance the litigation towards trial. Moreover, without the pressure exerted by the Defendant’s counsel, I speculate that this action would have progressed even more slowly.

Inadvertence in Missing the Deadline

[18] Mr. Ferro and his office must establish that they always intended to pursue this action within the time limits, but failed to do so through inadvertence. In Soldatova v. Bruno, 2011 ONSC 2003, 105 O.R. (3d) 468, Justice Cavarzan for this Court noted that counsel ought not to be permitted to claim no knowledge of key events because of a breakdown of communication between himself and his agents who were delegated to act in his stead. In the case before me, Mr. Ferro twice indicated that there was a communication break-down in his office. First, a law clerk misunderstood Justice Crane’s Order and second, a process server failed to report whether motion material had been filed with court. Mr. Ferro must be held responsible for the actions (or inaction) of his agents.

[19] Interestingly, in Soldatova v. Bruno the counsel whose actions were being considered was also Mr. Ferro.

[20] Justice Cavarzan, in that case, found that Mr. Ferro successfully demonstrated that his actions were inadvertent, but cautioned Mr. Ferro not to expect similar indulgences in the future (at para. 26). Due to the similarities between these two cases, I feel it is salutary to set out the paragraph in full:

Mr. Ferro ought not to be permitted to claim no knowledge of key events because of a breakdown of communication between him and his agents who were assigned to act in his stead. The administrative chaos reflected in the handling of this file borders on negligence. It is a major irritant and a source of frustration to opposing counsel, not to mention justice delayed to their clients. Mr. Ferro, in effect, sets a leisurely pace to suit his own convenience. I conclude, reluctantly however, that the claim of inadvertence has been made out. “Inadvertent” is defined in the Concise Oxford English Dictionary as “not resulting from or achieved through deliberate planning”. “Inadvertence” has a corresponding meaning i.e., “the fact or habit of being inadvertent; failure to observe or pay attention; inattention” (from the Shorter Oxford English Dictionary). Mr. Ferro should not expect to receive similar consideration and indulgences in the future.

[21] Justice Cavarzan stated at paragraph 15 that Mr. Ferro was notorious for the significant number of “motions against Mr. Ferro’s clients for failure to fulfil undertakings.” Justice Cavarzan found that a pattern of chaos emerged, beyond mere “sloppiness”.

[22] Mr. Ferro’s chronic delays were also noted in Hernandez v. Western Assurance Company, 2011 ONSC 6042. In that case, Justice Ramsay upheld a dismissal order, finding “The deadline was missed because Ferro and Company have inadequate file management practices and they rely on staff who are inadequately supervised” (at para. 9). I conclude on the facts of this case that despite Ramsay J.’s comment, nothing has changed in Mr. Ferro’s office since then.

[23] Mr. Ferro also represented the plaintiff in Finlay v. Van Paassen, 2010 ONCA 204, 101 O.R. (3d) 390, a matter in which the action was dismissed due to chronic delays. Counsel from Mr. Ferro’s office waited two years before brining a motion to set aside the dismissal. The motion judge upheld the dismissal order. Mr. Ferro appealed. The Court of Appeal explained that, on a motion to set aside a dismissal order “the court should be concerned primarily with the rights of the litigants, not with the conduct of their counsel” (at para. 33). The Court of Appeal distinguished “inadvertent” from “deliberate” conduct. A client should not be punished for the inadvertent misconduct of counsel. On the other hand, to excuse the deliberate misconduct by counsel would undermine the integrity of the justice system.

[24] In Finlay, the Court of Appeal found that Mr. Ferro’s conduct was merely inadvertent and set aside the dismissal order.

[25] Mr. Ferro’s chronic casual and cavalier approach to his duties and the apparent continued lack of supervision of his office (in the face of multiple entreaties by the Defendant’s counsel to address his oversights and two emphatic court orders to proceed with the action by a specific date) has clearly passed the point of “inadvertence”. Within the context of this case and after the various admonitions from my colleagues in prior cases, Mr. Ferro’s inaction can fairly be interpreted as both intentional and deliberate. It is far past time for Mr. Ferro to take responsibility for his actions and for the court to respond to a clear pattern of inattentiveness and neglect.

[26] As Justice Sharpe found with regard to a five-year delay (Marche D’Alimentation Denis Theriault Ltee. v. Giant Tiger Stores, 2007 ONCA 695 at para. 32):

…excusing a delay of this magnitude and gravity risks undermining public confidence in the administration of justice. Lawyers who fail to serve their clients threaten public confidence in the administration of justice. […] There is a risk that the public would perceive disregarding the solicitor’s conduct in the circumstances of this case as the legal system protecting its own. Excusing a delay of this kind would through [sic] into question the willingness of the courts to live up to the stated goal of timely justice.

[27] The continued tolerance and accommodation of Mr. Ferro’s systemic flaunting of timelines, rules and court orders risks rendering another serious blow to public confidence in the court’s commitment to timely justice.

The motion is brought promptly

[28] The Court’s finding in Soldatova v. Bruno (at para. 27) applies equally to Mr. Ferro’s conduct in this case: It cannot be said, in the circumstances here, that the motion was brought promptly. Indeed, the four year hiatus is inexcusable and inexplicable.

Prejudice to the Defendant

[29] As discoveries have already taken place and the matter is all but ready to advance to trial, it cannot be said that the Defendant would suffer prejudice if the case were re-instated to proceed. All documents are available as are all witnesses. Though the Court of Appeal has found that the expiry of a limitation period raises a presumptive prejudice, plaintiffs may rebut the presumption, as was done in this case (see Wellwood v. Ontario Provincial Police, 2010 ONCA 386).

[30] In Machacek v. Ontario Cycling Assn., supra, Justice MacPherson for the Court of Appeal, upheld a motion judge’s decision not to set aside a dismissal. Justice MacPherson found that “Virtually all of the delay between September 2006 and March 2010 is attributable to the failure of counsel for the appellants to move the action along” (at para. 9). Justice MacPherson concluded that although the motion judge found no evidence of prejudice to the defendant, “While this is an important factor, it has to be balanced by a consideration of the finality principle. In our view, the delay in the case and the conduct of counsel tips the balance towards the latter” (at para. 10).

[31] Justice MacPherson also noted that, “the appellants are not left without a remedy as they still have recourse through an action in solicitor’s negligence.” (Machacek v. Ontario Cycling Assn., 2011 ONCA 410 at para. 10). I also note that at para. 32 of Finlay v. Van Paassen 2010 ONCA 204, the Court of Appeal stated: “To protect the claim of the innocent party, the judge will often raise the possibility of a negligence action against the party’s own lawyer. Although perhaps understandable, I do not find this helpful. Speculation about whether a party has a lawsuit against its own lawyer, or the potential success of that lawsuit, should not inform the court’s analysis of whether the registrar’s dismissal order ought to be set aside.” I agree with that latter approach. Mr. Thomas may seek advice as to which of his options he might choose. His decision is irrelevant to this analysis.

Conclusion

[32] Some of my colleagues have observed that with regard to our gatekeeper mandate, “What we permit, we promote”. I agree entirely. It is not in the public interest, the interest of the administration of justice or the interest of individual litigants to promote the flagrant indifference exhibited to the Court process in this case by Mr. Ferro. His clients, the opposing parties and the justice system deserve much better.

[33] Since Mr. Ferro holds himself out to the public as a competent professional with training, experience, skill and the approval of the provincial licensing body, he must accordingly be held at least to some minimum level of proficiency.

[34] However, Mr. Ferro appears to view the court’s timelines, its rules and its orders as mere clutter to be ignored and avoided. Those obligations and expectations appear to be mere irritants which he chooses to ignore. As a result, Mr. Ferro’s clients are liable to become victims of their choice of advocate. Recent cases cited in these reasons would appear to show that Mr. Ferro regularly fails to shepherd actions to a timely conclusion in a professional manner. Instead he offers his client oblivion and neglect, re-victimizing plaintiffs in a way that no court should be seen to condone or disregard.

[35] Since the Court must be able to control its own process and if justice delayed is justice denied, then judges, as the gatekeepers should protect against such deliberate, continued dereliction.

[36] Accordingly, notwithstanding the fact that no prejudice arises to the defendant in this case, given the other three Reid factors, I am persuaded that, in the context of these facts in this case, to allow this motion would bring the administration of justice into disrepute. Therefore the relief sought in this motion is denied and the dismissal order of February 4, 2008 is upheld.

Costs

[37] Costs of this motion are fixed at $2,214.80 and are awarded to the Defendant, Mr. McLelland. Plaintiff’s Counsel shall submit their brief written submissions concerning whether Mr. Ferro should be personally responsible for these costs within 60 days of this decision. The Defendant’s counsel may respond within 15 days thereafter.

G.A. Campbell J.

Released: November 22, 2012

COURT FILE NO.: 05/19048

DATE: 2012-11-22

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Erron Thomas

Plaintiff

• and –

Randy McLelland

Defendant

• and –

Echelon General Insurance Company

Defendant

REASONS FOR JUDGMENT

G.A. Campbell J.

Released: November 22, 2012