COURT FILE NO.: CV-08-CV346493
MOTION HEARD: DECEMBER 4, 2012
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Heidi Clapham and Jonathan Clapham
v.
Anna Evangelista
BEFORE: MASTER R.A. MUIR
COUNSEL: Kelly A. Charlebois for the plaintiffs/defendants by counterclaim Heidi Rubin for the defendant/plaintiff by counterclaim
REASONS FOR DECISION
[1] The plaintiffs bring this motion pursuant to Rule 37.14 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) for an order setting aside the order of the registrar dated August 2, 2012 dismissing this action for delay. This action was dismissed by the registrar due to the failure on the part of the plaintiffs to have the action set down for trial within the time limits prescribed by the order of Master Dash of September 8, 2011. The plaintiffs also seek an order amending Master Dash’s timetable order and a further extension of the date by which this action must be set down for trial. The defendant opposes the granting of the relief requested on this motion.
NATURE AND PROGRESS OF THE ACTION
[2] This is a dispute between neighbours. The plaintiffs live at 504 Roselawn Avenue in Toronto. The defendant lives at 506 Roselawn Avenue. The plaintiffs allege that for a period of approximately 14 years before this action was commenced, the defendant engaged in a pattern of conduct amounting to harassment and intimidation. The plaintiffs allege that the defendant’s conduct over that time period constituted a nuisance, an invasion of privacy and trespass. The plaintiffs further allege that the defendant’s conduct has resulted in significant losses and damages to the plaintiffs. The plaintiffs’ claim also seeks injunctive relief to prevent the defendant from continuing the alleged improper conduct, although no motion has been brought to obtain interlocutory relief in that regard. The defendant denies the plaintiffs’ allegations.
[3] For her part, the defendant has commenced a counterclaim of her own in which she alleges that the plaintiffs have engaged in similar conduct. She alleges that the plaintiffs’ actions over the years constitute trespass, abuse and harassment and have interfered with her right of privacy and the quiet enjoyment of her property. She also alleges, among other things, that she has been assaulted by the plaintiff Jonathan Clapham. The defendant’s counterclaim also includes claims for defamation and malicious prosecution. The defendant makes a further claim for injunctive relief but she too has not sought an interlocutory order in that regard. The plaintiffs deny the defendant’s allegations.
[4] The plaintiffs and the defendant continue to live next door to one another.
[5] The plaintiffs have been represented throughout this action by Douglas Best. The plaintiffs’ statement of claim was issued on January 4, 2008. It appears that the statement of claim was served shortly thereafter as the defendant served a notice of intent to defend on or about January 15, 2008. The defendant then commenced her own separate action against the plaintiffs. That action was subsequently consolidated with this action by virtue of the order of Master Linton of July 29, 2008. The defendant’s statement of defence and counterclaim was filed on August 12, 2008.
[6] As this action was progressing through the pleadings stage, a criminal proceeding was also underway against the defendant. That criminal proceeding was in relation to certain alleged actions of the defendant which are also the subject matter of this action. The plaintiffs chose to wait until the criminal charges against the defendant were disposed of before delivering a reply and defence to counterclaim. That decision was due to the fact that the defendant has advanced a claim for malicious prosecution as part of her counterclaim.
[7] On October 29, 2008, the criminal charges against the defendant were stayed pursuant to section 11(b) of the Canadian Charter of Rights and Freedoms. The plaintiffs then served their reply and defence to counterclaim on December 12, 2008.
[8] It appears that nothing further was done to move this matter forward until the fall of 2009. The defendant apparently changed counsel in the summer of 2009. In October 2009 Mr. Best was contacted by Ryan Naimark, the defendant’s new lawyer. Mr. Naimark indicated that his client was interested in discussing the possibility of resolving this action and suggested the possibility of mediation. There appear to be a number of attempts to discuss settlement between October 2009 and January 2010. However, by January 28, 2010, Mr. Naimark had advised Mr. Best that he was unable to obtain specific settlement instructions from the defendant.
[9] A further period of inactivity occurs between January 2010 and August 2010. On August 16, 2010 the court issued a status notice pursuant to Rule 48.14. A status hearing was requisitioned by the plaintiffs and scheduled for October 12, 2010. On September 10, 2010, counsel for the plaintiffs wrote to the defendant’s lawyer and requested that a consent timetable be agreed to for the remaining steps in the litigation. The parties ultimately agreed to a timetable and I made an order implementing that timetable on October 7, 2010.
[10] My timetable order of October 7, 2010 contained the following provisions:
- affidavits of documents were to be served by January 15, 2011;
- discoveries were to be completed by May 30, 2011;
- mediation was to take place by September 1, 2011;
- the action was to be set down by October 1, 2011.
[11] Progress was made after my timetable order. Work began on the preparation of affidavits of documents. The parties served their affidavits of documents on January 14, 2011 in compliance with my order. Copies of productions were exchanged shortly thereafter. On March 8, 2011, the parties agreed on dates for examinations for discovery in May 2011, also in compliance with my order.
[12] In early April 2011, Mr. Best was contacted by Ms. Rubin (who had been retained by the defendant as her third lawyer in December 2010). Ms. Rubin suggested that rather than conducting discoveries on the agreed upon dates in May 2011, that the parties attempt to mediate a resolution of their dispute. The plaintiffs agreed with this suggestion and the May 2011 discovery dates were cancelled on consent.
[13] Unfortunately, no resolution was achieved at the mediation, although efforts at settlement continued until the fall of 2011, on at least a sporadic basis. During the time period between May 2011 and October 2011, both sides appear to have made efforts to schedule discoveries and agree on a revised timetable. Those efforts resulted in a new timetable order being made on consent by Master Dash on September 8, 2011. The order provided that discoveries were to be completed by December 31, 2011 and that this action was to be set down by August 1, 2012.
[14] In the summer of 2011, Mr. Best wrote to Ms. Rubin on two occasions seeking dates on which to schedule examinations for discovery. It appears that Ms. Rubin did not respond to those requests and no dates for discovery were agreed upon before the deadline of December 31, 2011, as set out in Master Dash’s order.
[15] A further period of inactivity takes place between the fall of 2011 and April 2012. In April 2012, Mr. Best once again turned his attention to this matter and realized that the deadline to set this action down for trial was approaching. As a result, he wrote to Ms. Rubin on April 10, 2012 proposing that the timetable be further amended. Mr. Best proposed that discoveries be completed by June 30, 2012 and that the action be set down for trial by December 31, 2012. Mr. Best also included a draft in-writing motion seeking a variation of the order of Master Dash.
[16] Ms. Rubin responded on May 9, 2012 and indicated that her client would only consent to an order extending the set down deadline to October 31, 2012. She also provided dates in July and August 2012 when she and her client were available for discovery. Ms. Rubin urged Mr. Best to select one of the available dates as quickly as possible so that they would not be lost.
[17] It appears that an articling student was instructed to prepare a response to Ms. Rubin agreeing to the revised set down deadline of October 31, 2012. The student prepared the necessary response sometime around May 12, 2012. Unfortunately, the revised motion material and draft letter to Ms. Rubin were overlooked by Mr. Best and were never sent to Ms. Rubin.
[18] As a result, Ms. Rubin sent a follow up letter to Mr. Best on July 23, 2012 once again asking that a date be confirmed for her client’s examination. This letter was sent when Mr. Best was on vacation and did not come to his attention until he returned to the office on August 3, 2012. It was only then that Mr. Best realized that the motion material for the order to extend the set down date had not been filed and that this action had been dismissed by the registrar on August 2, 2012.
[19] After learning of the dismissal order, Mr. Best took immediate steps to advise his clients and schedule a date for this motion. It appears that the plaintiffs served their initial notice of motion seeking an order setting aside the dismissal on or about September 5, 2012, with a return date of December 4, 2012.
APPLICABLE LAW AND ANALYSIS
[20] The law relating to motions of this nature 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:[^1]
- 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]
[21] I am also mindful of the observations of the Court of Appeal in its decision in Hamilton (City). At paragraphs 20-22 of that decision Justice Laskin notes as follows:
20 Two principles of our civil justice system and our Rules of Civil Procedure come into play. The first, reflected in rule 1.04(1), is that civil actions should be decided on their merits. As the motion judge said at para. 31 of his reasons: "the court's bias is in favour of deciding matters on their merits rather than terminating rights on procedural grounds."
21 The second principle, reflected in the various time limits mandated by our rules, and indeed, as noted by the motion judge, in the provision for a status notice and hearing, is that civil actions should be resolved within a reasonable timeframe. In Marché, at para. 25, my colleague Sharpe J.A. wrote about the strong public interest in promoting the timely resolution of disputes. Both the litigants and the public have an interest in timely justice. Their confidence in the administration of our civil justice system depends on it.
22 On motions to set aside an order dismissing an action for delay, invariably there is tension between these two principles.
[22] 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 dismissal order of the registrar be set aside.
MOTION BROUGHT PROMPTLY
[23] The defendant, quite properly, does not take issue with the plaintiffs’ submission that this motion has been brought promptly, having regard to the nature of the motion and the availability of counsel and the court.
[24] The plaintiffs have therefore satisfied this element of the Reid test.
LITIGATION DELAY
[25] I am also satisfied that the plaintiffs have, on balance, provided a satisfactory explanation for most of the delay encountered with this action.
[26] The period from January 2008 to December 2008 has been satisfactorily explained. The parties were delivering pleadings and the plaintiffs were awaiting the outcome of the defendant’s criminal proceeding, which had a direct bearing on a significant element of the defendant’s counterclaim. It was also necessary to deal with certain procedural issues which ultimately resulted in Master Linton’s consolidation order.
[27] There is, however, no explanation for the delay between December 2008 and the fall of 2009. It appears that the plaintiffs did nothing to move this matter forward during that time period. The plaintiffs were only prompted to take action when the defendant retained new counsel and floated the possibility of settlement negotiations.
[28] From the fall of 2009 to January 2010, the parties were engaged in settlement discussions. Although those discussions did not prove to be fruitful in the end, I am satisfied that they constitute an adequate explanation for not moving this action forward otherwise. In my view, settlement discussions are an important part of the progress of any action and a plaintiff should not be faulted for pursuing those steps. See Apotex Inc. v. Relle, 2012 ONSC 3291 (Master) at paragraphs 50 and 51.
[29] The period from January 2010 to August 2010 is also a period of unexplained delay. The plaintiffs were silent for nearly eight months. Once again, they only took action when prompted to do so - this time by the court issuing a status notice.
[30] I am satisfied that there was no significant delay on the part of the plaintiffs between August 2010 and October 2011. The plaintiffs took steps to schedule a status hearing and take out a timetable order. Thereafter, the plaintiffs prepared and served their affidavit of documents in accordance with the timetable order. Copies of their productions were provided to the defendant. Discoveries were booked for May 2011, again, in compliance with the timetable order.
[31] The decision to cancel the discoveries in favour of a mediation session was a mutual one. Although the mediation did not result in a resolution, it does appear that settlement discussions continued, at least sporadically, for the next several months. I note that as late as October 20, 2011, draft minutes of settlement were being circulated by the defendant.
[32] Beginning in August 2011, the plaintiffs made requests of the defendant for discovery dates and those requests were not responded to. In the interim, the plaintiffs brought a motion in writing in early September 2011 in order to obtain an order varying the earlier timetable order.
[33] Unfortunately, the plaintiffs do not appear to have followed up on their unanswered requests for discovery dates from the defendant and this matter went into abeyance once again. No steps were taken to move this matter forward from October 2011 until April 2012. The plaintiffs appear to suggest that this period of delay can be partially explained by the fact that the lawyer with day to day responsibility for this matter went on maternity leave in December 2011. However, I do not view that event as a satisfactory explanation, especially when it comes from a large firm such as the one representing the plaintiffs in this action. This matter could have easily been reassigned to another lawyer.
[34] In April 2012, Mr. Best apparently determined that a new timetable was necessary. I am satisfied that he fully intended to take the required steps to get this action back on track. This action would have been ready to be set down by October 2012 if it were not for the unfortunate slip that resulted in the in-writing motion record not being finalized and filed. As I set out below, I am satisfied that the failure to obtain the further extension order in the spring of 2012 was purely inadvertent and accidental. It was a result of an unfortunate oversight on the part of Mr. Best. I am satisfied that he was simply under the mistaken impression that this matter had been taken care of. The time period between April 2012, and the dismissal of this action on August 2, 2012, has therefore been adequately explained by the plaintiffs.
[35] Overall, I have found that the unexplained delay covers three time periods: ten months in 2009; eight months in 2010; and a further five or six months from the end of October 2011 to April 2012. This totals two years of unexplained delay. Obviously, this is not a desirable approach to litigation. Had there been a continuous delay of that length it would have weighed very heavily against the plaintiffs on this motion. However, this is not a case where there were inordinately long and continuous periods of inactivity and silence. The plaintiffs did make regular efforts to move this action forward, both in terms of the steps contemplated by the Rules and by attempting to arrive at a negotiated settlement.
[36] In my view, the facts on this motion can be distinguished from the authorities relied upon by the defendant. In those cases the delay was much more significant or very little had been done to move the litigation ahead. In 1196158 Ontario Inc. v. 6274013 Canada Ltd., 2012 ONCA 544, five years had passed and the action had only made it to the pleadings stage. In Marché, the motion to set aside the dismissal order was not heard for more than six years after the order was made. In Hamilton (City), the period of delay was nine years from the commencement of the action and the claim had not proceeded past the pleadings stage. In Viola v. Tortorelli, 2010 ONSC 711 (Master); reversed, 2010 ONSC 6148, there was an unexplained delay of almost one year in bringing the motion to set aside the dismissal order and a further finding by the Master that no explanation had been provided for a 14 month delay in the period immediately before the dismissal order was made. I also note that in the appeal decision overturning Master Dash’s decision in Viola, the court concluded, at paragraph 60, that those periods of delay were not egregious.
[37] As I have indicated above, there are a number of unexplained gaps in the plaintiffs’ evidence regarding the litigation delay. Those gaps give the court some concern. However, it is not necessary for the plaintiffs to account for every moment of time from the commencement of the action forward. There are going to be occasional gaps in time with any litigation. As I have said, this is not a situation where there have been multiple, prolonged and unexplained periods of lengthy delay. It is clear that the plaintiffs always intended to continue with their claim. On balance, I am satisfied that the delay with the overall progress of this action has been adequately explained in the circumstances.
[38] Finally, in my view it is important to note that this proceeding is really two actions wrapped up as one. The plaintiffs’ claim and the defendant’s counterclaim. Both actions are based on most of the same facts or similar facts. I accept that a plaintiff has the primary responsibility for the progress of an action. However, where a defendant asserts a counterclaim of the nature found in this action, some onus must be placed on the defendant to move her claim forward as well. See Loblaw Companies Limited v. Immediate Logistics Limited, 2010 ONSC 3710 (Master) at paragraph 12. The defendant has not, in my view, been any more diligent in advancing her counterclaim then the plaintiffs have in advancing the main action. She too appears to have been content to let the matter drift on occasion, to use the words of Master Hawkins in Loblaw. In the circumstances of this motion, this is a factor that tips the balance in favour of the plaintiffs.
[39] I am therefore satisfied that this element of the Reid test has been met by the plaintiffs, despite the several periods of unexplained delay.
INADVERTENCE
[40] 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 Dash, was a result of their lawyer’s inadvertence and not an intentional decision to abandon the action. The plaintiffs have provided direct evidence that it was always their intention to proceed with this litigation. It is true that there have been periods of inactivity and delay, as I have indicated above. However, those periods of delay were not, in my view, inordinately long or completely without explanation. The plaintiffs have explained their delay by pointing to the necessity of waiting until the criminal charges against the defendant were dealt with, their efforts to settle the litigation or at least attempt to arrive at a mediated resolution and the difficulty encountered with setting up discoveries, which arose from a lack of responsiveness on both sides.
[41] In my view, the unexplained delay that resulted in the dismissal of the action can be attributed to an occasional lack of sufficient attention being paid to this matter compounded by the failure to file the necessary motion material in the spring of 2012. That failure, on the part of Mr. Best, to file the motion material and obtain the necessary extension order can only be described as inadvertent. The material had been drafted, sent to counsel for the defendant and then revised in accordance with the defendant’s requirements. The only step not taken was to file the material with the court. In my view, inadvertence is the only possible conclusion on the evidence before the court.
[42] I am therefore satisfied that the failure to set this action down for trial in a timely fashion, and to comply with Master Dash’s order, was inadvertent and that this element of the Reid test has also been met.
PREJUDICE
[43] 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 appears to have here, at least for most of the plaintiffs’ claims, 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 at paragraph 60.
[44] In my view, the presumption of prejudice can, on the facts of this action, be considered as fairly strong. Some of the events in issue go back nearly nineteen years. A great deal of oral evidence will be necessary from both sides. This will not be a document intensive case. Memories fade over time.
[45] Of course, 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.
[46] First, it should be noted that the events giving rise to the plaintiffs’ claims were already many years old when this action was commenced. This factor is, of course, exacerbated by the added delay, but the faded memories problem was present from the outset.
[47] I also note that the defendant was content to allow this matter to proceed at a leisurely pace. In fact, as late as May 2012, she was prepared to agree to a set down deadline of October 31, 2012. In my view, it can be inferred from that consent that the defendant’s concern about faded memories could not have been that significant, given her agreement to this further extension of time. See Grégoire v. Sakto Corporation, 2011 ONSC 7246 (Master) at paragraph 24.
[48] In addition, the parties have been represented by capable counsel from the outset. The plaintiffs have given evidence that all important witnesses are available. The parties have also exchanged productions and mediation briefs. Presumably, all records kept by the City of Toronto, along with those created in connection with the defendant’s criminal proceeding, remain available.
[49] The defendant alleges that she is prejudiced by the fact that certain witnesses no longer live in the neighbourhood or are no longer employed by the City of Toronto. However, there is no suggestion that any of those individuals are unavailable to testify due to death, incapacity or an inability to locate them. In addition, there is no indication in the defendant’s evidence of when these potential witnesses moved away or left their employment. Was it before or after any delay was encountered with this action? It must be remembered that the prejudice relevant to motions of this nature must arise from a plaintiff’s delay. See Amaprop Canada Inc. v. Connon, 2011 ONSC 2028 (Master) at paragraph 14. The one alleged witness who is deceased is really not a witness at all, but rather the defendant’s former lawyer. Finally, I note that much of the defendant’s evidence regarding those witnesses does not comply with Rule 39.01(4). The defendant states that she was “advised” or that she “understands” that those witnesses have moved away or are no longer employed in their former positions. However, nowhere in her affidavit does she provide the source of that information.
[50] I accept that litigation can be stressful and a source of mental anguish as the defendant has asserted in her responding affidavit. The defendant, understandably, wants to put this matter behind her and move on. However, the fact that this proceeding is a source of mental anguish and tension for the defendant does not give rise to the kind of prejudice necessary to defeat a motion of this nature. The prejudice in question is not prejudice that arises from facing a claim in the first place, but rather prejudice to a defendant’s ability to present her case at trial, arising from a plaintiff’s delay. See Marché at paragraph 12. A similar argument was addressed by Master Glustein in Apotex. Beginning at paragraph 62 of that decision, Master Glustein states as follows:
62 Relle submitted that she suffered actual prejudice as a result of the stress from the litigation, relying on a letter from her family doctor. I do not accept that such evidence demonstrates the "non-compensable" prejudice at issue on a contested status hearing.
63 The prejudice at issue on a contested status hearing should be of the type to affect a defendant's ability to present the case at trial, just as such prejudice is considered on a motion to set aside a registrar's dismissal order, i.e. "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" (Reid, at para. 41). Stress arising from litigation does not satisfy the test that a defendant's ability to present the case at trial has been compromised by the delay.
64 If Relle's submissions were accepted, a defendant would suffer "actual" prejudice through stress without any evidence that the defendant's ability to present the case at trial has been prejudiced. Such an approach is inconsistent with the settled law on motions to set aside dismissal orders.
[51] I am in full agreement with Master Glustein’s observations. Although the Apotex decision arises from a contested status hearing, I find Master Glustein’s comments to be equally applicable to the issue of prejudice on a motion to set aside a dismissal order of the registrar.
[52] I am therefore satisfied that the plaintiffs have also met this element of the Reid test.
OTHER FACTORS
[53] In my view, one other factor needs to be part of the court’s consideration on this motion. In May 2012, the defendant gave her consent to an order extending the time for this action to be set down for trial to October 31, 2012. Due to the oversight on the part of Mr. Best, the necessary in-writing motion was not filed. Had the in-writing motion been filed, the set down deadline would almost certainly have been extended to October 31, 2012. It was only after the action was dismissed that the defendant resiled from that consent and announced that she would oppose this motion. Had she not withdrawn her consent, it is very likely that discoveries could have been completed and this action set down for trial by October 31, 2012.
[54] Alternatively, had the defendant taken the position in May 2012 that she would not consent to any further extensions of time, the plaintiffs presumably would have done what was necessary to meet the existing August 1, 2012 set down deadline. Mr. Best’s letter of April 10, 2012 certainly supports such an inference. The draft timetable order enclosed with that letter contemplated the completion of discoveries by June 30, 2012, which would have left sufficient time to set the action down for trial by August 1, 2012 had it been necessary. In my view, the fact of the defendant’s consent in May 2012 is a factor that weighs in favour of the plaintiffs on this motion.
CONCLUSION
[55] 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.
[56] 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 satisfied all of the relevant factors, including the key factor of prejudice. The delay to date has been satisfactorily explained for the most part and cannot be described as inordinate or excessive. The August 1, 2012 deadline was missed due to inadvertence and this motion was brought promptly. Finally, the defendant consented to an extension of the August 1, 2012 deadline and then withdrew that consent after this action was dismissed. I am therefore satisfied that it is just that the order of the registrar of August 1, 2012, be set aside. Given the delay to date, however, I am only prepared to grant a short extension of the set down deadline, to April 2, 2013.
ORDER
[57] I therefore order as follows:
(a) the dismissal order of the registrar dated August 1, 2012 is hereby set aside;
(b) this action shall be set down for trial, or otherwise disposed of, by no later than April 2, 2013, failing which it shall be dismissed by the registrar without further notice;
(c) the parties shall confer and attempt to agree on an appropriate timetable order for the completion of the remaining steps in this action;
(d) any such consent timetable shall include a set down date of no later than April 2, 2013 and shall be provided to the court for its consideration and approval by no later than December 21, 2012;
(e) if the parties are unable to agree on such a timetable, the parties shall provide the court with written submissions by no later than December 21, 2012; and,
(f) if the parties are unable to agree on the issue of costs, they may make brief written submissions by no later than December 21, 2012.
Master R.A. Muir
DATE: December 10, 2012
[^1]: The applicable principles are derived from seven decisions of the Court of Appeal for Ontario released over the last several years: Scaini v. Prochnicki, 2007 ONCA 63, [2007] O.J. No. 299 (C.A.); Marché D’Alimentation Denis Thériault Lteé v. Giant Tiger Stores Ltd., 2007 ONCA 695, [2007] O.J. No. 3872 (C.A.); Finlay v. Van Paassen, 2010 ONCA 204, [2010] O.J. No. 1097 (C.A.); Wellwood v. Ontario (Provincial Police), 2010 ONCA 386, [2010] O.J. No. 2225 (C.A.); Hamilton (City) v. Svedas Koyanagi Architects Inc., 2010 ONCA 887, [2010] O.J. No. 5572 (C.A.); Machacek v. Ontario Cycling Assn., 2011 ONCA 410, [2011] O.J. No. 2379 (C.A.); Aguas v. Rivard Estate, 2011 ONCA 494, [2011] O.J. No. 3108 (C.A.).