SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: 06-CV-310391
MOTION HEARD: October 23, 2012

RE: Ho’s International Corp.

v.

White Veal Meat Packers Ltd.

BEFORE: Master Thomas Hawkins

COUNSEL:
Hon Sang Ho for
moving plaintiff
1 Winston Road, Markham, Ontario L3R 7C9

Jordan Sobel Esq. for responding
defendant
Fax No.: 1-866- 404-0622

REASONS FOR DECISION

[ 1 ] This is a motion by the plaintiff for leave under rule 48.11 (b) to restore this action to the trial list.

[ 2 ] Rule 48.11 provides as follows.

Where an action is struck off a trial list, it shall not thereafter be placed on any trial list except.

(a) in the case of an action struck off the list by a judge, with leave of a judge; or

(b) in any other case, with leave of the court.

[ 3 ] This action to recover the balance allegedly owing for goods sold and services rendered was commenced on April 28, 2006. The plaintiff set the action down for trial on September 16, 2008.

[ 4 ] The evidence before me does not indicate when this action was struck off the trial list. This must have happened before November 18, 2011. At that time the plaintiff brought a motion for leave to restore this action to the trial list.

[ 5 ] The motion came before Muir M. with Mr. Ho appearing for the plaintiff. (On January 28, 2010 McAfee M. granted Mr. Ho – who is not a lawyer – leave to represent the plaintiff corporation.) The defendant then wished to file responding material. Defence counsel expressed concerns about the sufficiency of Mr. Ho’s material. Further, it appeared that Mr. Ho was to be out of the country from December 2011 to June 2012.

[ 6 ] Muir M. adjourned the motion without fixing a new hearing date or setting a deadline for the new hearing. He directed that Mr. Ho or someone on his behalf contact the motions office in May 2012 to arrange a new date for argument of this motion.

[ 7 ] Muir M. also directed defence counsel to send Mr. Ho a letter setting out defence counsel’s concerns with Mr. Ho’s motion materials. Muir M. said that Mr. Ho could then decide whether or not amend his motion materials.

[ 8 ] Finally, Muir M. said that if Mr. Ho decided to amend his motion materials, he should do so no later than July 9, 2012.

[ 9 ] Defence counsel wrote Mr. Ho on November 18, 2011 setting forth his concerns about Mr. Ho’s motion materials. One concern which defence counsel expressed was that Mr. Ho’s affidavit did not explain a litigation delay of almost two years.

[ 10 ] On May 31, 2012 an assistant in the law firm advising Mr. Ho from time to time contacted the motions scheduling unit of this court and booked a new hearing date for this motion. Since she did so without previously consulting defence counsel, a member of this firm agreed to adjourn the motion to a date convenient to defence counsel.

[ 11 ] It appears that Mr. Ho did amend his motion materials. However, he did not do so by July 9, 2012. His supporting affidavit was sworn September 11, 2012. Mr. Ho’s motion record is dated October 4, 2012.

[ 12 ] Mr. Ho’s affidavit on this motion does address the subject of litigation delay. Mr. Ho says that the plaintiff’s first lawyers did not attend diligently to the litigation file and that the prosecution of this action took longer than it should have.

[ 13 ] The plaintiff’s second lawyer was Donald Short. Mr. Ho has no complaints about Mr. Short. However, Mr. Ho says that when Mr. Short was appointed a master of this court, there was confusion about where documents relevant to this action were sent and where documents were located, which again delayed prosecution of this action.

[ 14 ] Mr. Ho also says that his own unsuccessful efforts to restore this action to the trial list contributed to the delay to a small degree.

[ 15 ] Finally, Mr. Ho says that his own absence from Canada from December 2011 to June 2012 meant that he was unable to meet with and instruct new lawyers to prosecute this action with consequent delay.

[ 16 ] According to Mr. Ho, this delay has not prejudiced the defendant.

[ 17 ] The defendant has delivered an affidavit of a legal secretary in response to this motion. This secretary takes the position, on information and belief, that the appointment of Mr. Short as a master did not result in confusion which delayed the progress of this action. She also says on information and belief, that the defendant will suffer prejudice if this action is restored to the trial list. The defendant is not the source of her information. She does not state what form that prejudice takes or will take or when it first arose.

[ 18 ] Rule 24.01 (1)(e) provides that a defendant may move to have an action dismissed for delay where the plaintiff has failed to move for leave to restore to the trial list an action that has been struck off the trial list within 30 days after the action was struck off. The defendant has not brought such a motion and has offered no explanation as to why it did not bring such a motion.

[ 19 ] In 13514280 Ontario Limited (Wineyard) v. 1037598 Ontario Ltd. , 2011 ONSC 4767 , 2011 ONSC4767 Backhouse J. held (at paragraph 4) that on a motion for leave to restore an action to the trial list the following are the factors which the court should consider.

(1) Is the delay intentional and contumelious?

(2) If not, is there an inordinate and inexcusable delay in the litigation for which the plaintiff or his solicitors are responsible, such as would give rise to a presumption of prejudice?

(3) If so, has the plaintiff provided evidence to rebut the presumption of prejudice arising from the delays?

(4) If so have the defendants provided evidence of actual prejudice?

[ 20 ] I will consider these factors in order.

[ 21 ] With respect to the first factor, the evidence before me respecting the delay in the prosecution of this action is such that there has not been intentional and contumelious or contumacious conduct by Mr. Ho or the plaintiff’s lawyers. There is no evidence that they have been deliberately flouting orders of this court or the Rules of Civil Procedure.

[ 22 ] There has been some delay in moving for leave to restore this action to the trial list, including the evidence that Mr. Ho did not meet one of the deadlines which Muir M. set on November 18, 2011. However, I am unable to measure that overall delay because neither side has led evidence as to when this action was struck off the trial list.

[ 23 ] Mr. Ho has given evidence as to the causes for the delay in the prosecution of this action which I have summarized in paragraphs [12] to [15] above. In addition to the causes which Mr. Ho has listed, it seems to me that Mr. Ho’s lack of familiarity with our civil justice system and in particular, the requirements of the Rules of Civil Procedure is another cause of much of the delay. I do not regard such lack of familiarity as contumacious behavior.

[ 24 ] In my view, the plaintiff has met the first factor.

[ 25 ] I now turn to the second factor. As I have said, this action was commenced on April 28, 2006 and set down for trial on September 16, 2008, a period of less than two years and five months. I do not regard such an action as one in which there has been inordinate and inexcusable delay.

[ 26 ] The plaintiff has met the second factor.

[ 27 ] With respect to the third factor, Mr. Ho has made a bald statement in his supporting affidavit that the defendant has not suffered prejudice. He says that there are no complex issues in this action that will suffer as a result of the passage of time. I assume that Mr. Ho is referring to the fact that the memories of witnesses fade over time, but is saying that this action does not have issues the resolution of which depends largely or entirely upon the memories of witnesses. This evidence of Mr. Ho has not been challenged.

[ 28 ] In my view, the plaintiff has provided evidence to rebut the presumption of prejudice and has therefore met the third factor. However, in most cases the defendant has the better means of knowledge as to what prejudice, if any, the defendant has suffered. This brings me to the fourth and last factor.

[ 29 ] The fourth factor involves answering the question whether the defendant has provided evidence that it has suffered or will suffer actual prejudice if leave to restore this action to the trial list is granted. To my mind, this is the most important of the four factors.

[ 30 ] Actual prejudice may take a number of different forms, but actual prejudice comes down to this. Did something happen during a period of delay in the prosecution of the action by the plaintiff which has materially impaired the ability of the defendant to present its defence at trial? Examples of actual prejudice might include the unexpected death of a material witness helpful to the defence, or the disappearance of such a witness who cannot be located despite diligent efforts to do so, or the destruction of documents helpful to the defence in the reasonable but mistaken belief that the plaintiff has abandoned the action.

[ 31 ] Here there is no defence evidence whatsoever that the defendant has suffered actual prejudice. As I have said, as between the plaintiff and the defendant, the defendant usually has much the better means of knowledge of whether the defendant has suffered actual prejudice. Since there is an affidavit delivered in support of the defendant’s response to this motion, I need not decide this motion on the basis of presumed prejudice to the defendant. I can examine that affidavit to see what it says about actual rather than presumed prejudice to the defendant. To the extent that the defence legal secretary’s affidavit deals with the subject of prejudice to the defendant, it is simply argument in affidavit form. The defence affiant says that like any defendant in “long-standing and dormant litigation” this defendant had a reasonable and valid expectation that the litigation was, in essence, finally over. The affiant does not disclose the source of his information that the defendant had such an expectation if indeed the defendant had such an expectation. I can readily believe that the defendant was disappointed when it learned that the plaintiff was bringing this motion. However feelings of disappointment are not prejudice.

[ 32 ] The defence affiant does not point to any specific fact in support of his prejudice argument. There is no evidence whatsoever of prejudice from the defendant itself. Certainly there is no evidence that the defendant has suffered or will suffer any prejudice even remotely similar to the kinds of actual prejudice I have listed in paragraph [30] above.

[ 33 ] On the record before me there is no evidence that something has happened or is about to happen that has impaired or will impair the ability of the defendant to present its defence at trial if this action is restored to the trial list. I therefore conclude that the plaintiff has satisfied the fourth factor.

[ 34 ] I have considered these four factors in context. I have also weighed the interests of the parties (that is, the prejudice to the plaintiff if this motion is dismissed as against the prejudice to the defendant if this motion is granted.) Having done so, I have concluded that the just order in the circumstances is an order

(a) granting the plaintiff leave to restore this action to the trial list within 30 days, and

(b) extending pursuant to subrule 3.02(1) the deadlines in the November 18, 2011 order of Muir M. to the actual dates of the serving and filing of the plaintiff’s motion record.

[ 35 ] If Mr. Ho does not know what to do in order to restore this action to the trial list now that he has an order granting the plaintiff leave to do so, and what to do in order to prevent the registrar from striking this action off the trial list a second time, I strongly urge him to seek legal advice. He had lawyers assist him in drafting the plaintiff’s motion record.

[ 36 ] I have considered the costs submissions of the parties. In granting this motion despite the fact that the plaintiff did not comply with one of the deadlines which Muir M. set on November 18, 2011, I have granted the plaintiff a significant indulgence. The price of an indulgence is the payment of the costs of those who have sought unsuccessfully to prevent its being granted. See Fox v. Bourget (1987), 17 C.P.C. (2d) 94 (Ont. Dist. Ct.). I fix those costs at $1,750 and order the plaintiff to pay such costs to the defendant within 30 days.

_ (original signed) __

Master Thomas Hawkins

DATE: November 29 _, 2012