COURT FILE NO.: 09-46516
DATE: November 15, 2012
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: MCCLEERY v. GLOBAL EXCEL MANAGEMENT INC et al
BEFORE: MASTER MACLEOD
COUNSEL: Dawn Searle for the plaintiff email: dawn.searle@gowlings.com Ph: (613) 233-1781 Fax: (613) 563-9869
David Elliott for the defendants email: david.elliott@fmc-law.com Ph: (613) 783-9638 Fax: (613) 783-9690
E N D O R S E M E N T (at Status Hearing)
This is a status hearing pursuant to Rule 48. The action was commenced in 2009 but not served immediately. It was ultimately defended in May of 2010 and was scheduled for mediation later that year. The mediation was adjourned for further production.
There has been little activity since then.
The action concerns coverage for out of country medical care and I understand the issue is whether or not the answer to a question about having been “diagnosed with or experienced a heart condition” within the ten years prior to leaving the country was accurate or not.
Neither party has filed affidavit material.
I am advised that the plaintiff has not been anxious to proceed with this matter if he does not actually have to incur the expenses in Florida. To date he has not been pursued by the hospital and so has incurred minimal damages. In fact he proposes that the action be stayed pending the passing of the Florida limitation period in 2014.
The defendant advises that there has never been a previous request to stay the action. Rather there has simply been an unexplained delay and complete silence for the past 18 – 24 months.
At a status hearing the plaintiff must explain the delay and must propose a reasonable plan for bringing the matter to conclusion. The plaintiff must also persuade the court that the proposal will not prejudice the defendant. The plaintiff has the onus to meet both branches of the test. See Khan v. Sun Life Assurance Co. of Canada 2011 ONCA 650 (C.A.)
Counsel for the plaintiff does not ask that this hearing be adjourned in order to file affidavit evidence. This is because the chronology is not really in dispute. In effect, it is argued, this case is on all fours with the decision of Master Dash in Koepcke v. Webster 2012 ONSC 357 (S.C.J. – Master).
In that decision Master Dash accepted that commencing an action to preserve the limitation period
against a lawyer but not to run up costs on that action while the underlying action remained outstanding was a reasonable explanation. Though he criticized plaintiff’s counsel for simply adopting a “wait and see” approach without communicating this to defence counsel, he exercised his discretion in favour of the plaintiff and declined to dismiss the action. He then provided the defendant with an election either to consent to a stay or to demand and enforce a litigation timetable.
In this case there is no underlying action. There is only the possibility that the hospital in Florida might pursue the plaintiff for a bill for the roughly $59,000 sent in 2008. I am advised that no steps have been taken to pursue this other than putting it in the hands of a collection agent who sent a demand in 2008. Unlike the Koepcke case the question of liability is not truly dependent on whether or not there is success in an underlying action. There is no question the plaintiff is liable for the bill in Florida (though he may never have to pay it). The liability of the defendant is dependent on whether or not the policy is or is not void based on material non disclosure and not on any question about the medical services rendered in Florida.
The question then is whether it is reasonable to delay prosecuting an action just because the plaintiff might not actually have to pay the bill – something that the defendant was unaware of until now – as distinct from a situation in which it was evident to both parties that there could be no damages unless the defence to the underlying action was ultimately successful at trial. That is certainly a weaker explanation than in Koepcke.
There may or may not be real prejudice to the defendant if the matter proceeds. There are outstanding requests for medical production. The defendant already has records showing the plaintiff was treated for a heart murmur and on one occasion was prescribed nitro glycerine. There would be prejudice if there was something more serious in prior records that have not been disclosed and which are no longer available. The onus however is on the plaintiff to address the question of prejudice.
Under the circumstances, applying the test in Khan I must conclude that the plaintiff has not met the onus to show that it would be just to permit the action to continue. The action will therefore be dismissed for delay.
As the Court of Appeal has clearly stated the imperative to allow actions to be dealt with on their merits regardless of procedural irregularities must be balanced against the injustice of requiring defendants to continue defending an action indefinitely.
I will accept submissions on costs in writing within the next 30 days.
November 15, 2012
Master Calum MacLeod