ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 09-CV-370497
DATE: 20120208
BETWEEN:
DOMINIC POLSINELLI Plaintiff – and – GASPARI SANCI Defendant
Dominic Polsinelli, Self-Represented Plaintiff
Charles Wagman, for the Defendant
HEARD: December 23, 2011
B. O’MARRA J.
NATURE OF APPLICATIONS
[ 1 ] The plaintiff applies for two orders:
to set aside the order of the Registrar dismissing the action for delay; and
return of $50,635.76 that had been ordered held by Horseman’s Bookkeeper
[ 2 ] The defendant applies for three orders:
dismissal of a contempt motion brought by the plaintiff;
costs of the various proceedings; and
termination of the order of Justice Belobaba dated March 20, 2009.
THE FACTS
[ 3 ] This action arises from the purchase of five race horses by the defendant in Toronto in 2007. The plaintiff was the defendant’s trainer. There was an agreement between the parties that the plaintiff was to receive a share of the proceeds from races after the defendant recouped the initial purchase price. The plaintiff received such portion of proceeds through February of 2008. The agreement was terminated as the horses were no longer competitive. The written agreement between the parties stated that at any time the plaintiff could return the race horses and the agreement would be cancelled. The defendant then hired a new trainer.
[ 4 ] There is a dispute as to how and why the agreement was ended.
[ 5 ] In November of 2008 the race season ended. The defendant no longer wanted the horse Tothemoonandback and gave the horse away to Sheila Mohan.
[ 6 ] The plaintiff commenced an action on January 19, 2009 seeking damages for breach of the agreement. The original statement of claim did not include a claim for an injunction.
[ 7 ] The plaintiff moved without notice for an injunction on March 20, 2009 which was granted. It restrained the defendant from taking any action to destroy, sell or transfer the horses “Clearly in Charge”, “Janet’s Star” and “Tothemoonandback” pending a motion by the defendant on notice to set aside or vary the order. At the time that order was made the horse Tothemoonandback had already been transferred to Sheila Mohan. The order of March 20, 2009 was served on the defendant on March 21, 2009.
[ 8 ] The plaintiff brought a motion on June 12, 2009 to find the defendant in contempt of the order of March 20, 2009 based on the transfer of the horse Tothemoonandback to Sheila Mohan. The defendant claims that the horse was given to Sheila Mohan in November of 2008 and thus there was no contempt. Sheila Mohan swore to an affidavit on November 17, 2009 that the defendant had given her the horse in the latter part of November of 2008 for no money.
[ 9 ] The contempt motion was originally returnable on August 18, 2009.
[ 10 ] On that date the parties consented to an order varying the order of March 20, 2009 to allow two of the horses (Janet’s Star and Clearly in Charge) to compete in races with all proceeds to be held by the Horseman’s Bookkeeper pending trial, settlement or further order of the court. The contempt motion was adjourned on consent to November 18, 2009.
[ 11 ] The contempt motion was adjourned from time to time because the plaintiff failed to confirm the motion. The defendant appeared on every return date as it was a contempt allegation. A new date for the hearing of that motion has never been fixed. The contempt allegation has been outstanding against the defendant for approximately two years.
[ 12 ] The original action was dismissed for delay by the Registrar on August 10, 2011. As a result of the dismissal the Horseman’s Bookkeeper forwarded the funds they were holding to the defendant.
[ 13 ] The plaintiff’s original filing address for purposes of this action was 227 Travistock Road, Downsview, Ontario. In his motion record on the current matters he indicated he did not have a permanent address at that time as he also lived in Fort Erie where he trained horses. In March of 2010 he obtained a permanent office at 136 Winges Road, Unit 6, Woodbridge, Ontario. On October 19, 2011 he filed a change of address form with the court advising of his “new” address in Woodbridge. This information was provided by the plaintiff on this motion to explain why he did not know of or receive court notices sent to his original filing address in Downsview.
ANALYSIS
[ 14 ] Rule 48.14(16) provides that an order under that rule dismissing an action may be set aside under Rule 37.14.
[ 15 ] In determining whether to grant relief under Rule 37.14 courts apply four criteria identified in Reid v. Dow Corning Corp. (2001), 11 C.P.C. (5 th ) 80 (Ont. Master) reversed on other grounds 48 C.P.C. (5 th ) 93 (Ont. Div. Crt.). The four criteria are as follows:
explanation of the litigation delay;
whether the dismissal order was the result of inadvertence;
whether the motion to set aside was brought promptly; and
whether there is any prejudice to the defendant.
[ 16 ] In Scaini v. Proschnicki, (2007) 2007 ONCA 63, 85 O.R. (3d) 179 (Ont. C.A.) that court reversed the line of authority that strictly required a moving party to satisfy each element of the four-part test in Reid. A contextual approach is to be preferred to a rigid test with fixed criteria. The court went on to indicate that the four Reid criteria are likely to be of central importance in most cases but they are not exhaustive. The key point is to consider and weigh all relevant factors to determine the order that is just in the particular circumstances.
[ 17 ] In Marché d’Alimentation Denis Theriault Ltée v. Giant Tiger Stores Ltd., 2007 ONCA 695, at para. 20 the Ontario Court of Appeal held that the Reid test’s requirement of an explanation for litigation delay ties into a dominant theme of modern civil procedure: the discouragement of delay and the enhancement of an active judicial role to ensure timely justice.
[ 18 ] The plaintiff commenced this action in January of 2009. An amended claim was filed in March 2009. He failed to deliver a reply or defence to the statement of defence and counterclaim. The plaintiff failed to serve an affidavit of documents, arrange for discoveries or for mediation. The delay of 19 months in advising the court of his new filing address exemplifies the persistent failure to prosecute his claim.
[ 19 ] The dismissal order was not the result of inadvertence. The plaintiff simply took no steps from early on in the pleadings until he was served with a defence application related to the contempt motion and costs.
[ 20 ] The defendant properly concedes there was no significant delay in bringing the motion to set aside the dismissal order. However, it is clear that the plaintiff’s motion was triggered by the defence application.
[ 21 ] The defendant claims the delay in prosecuting this matter has caused significant prejudice to him as follows:
The ex parte injunction dated March 20, 2009 that was varied on consent on June 12, 2009 prevented disposition of the horses as well as the sum of $50,635.76 to be held by the Horseman’s Bookkeeper;
The failure to advance the contempt motion that related to a horse that had been transferred before the ex parte injunction dated March 20, 2009. The contempt motion was filed in June of 2009 and is still outstanding. There is no evidence or information that the defendant has delayed that motion in any way.
[ 22 ] The quasi-criminal nature and potential for significant sanctions highlight the serious consequences of such proceeding. Both the process used to issue a declaration of contempt and the sanction bear the imprint of criminal law: Pro Swing Inc. v. ELTA Golf Inc., 2006 SCC 52, [2006] 2 S.C.R. 612, para. 35.
[ 23 ] The moving party on a contempt application has the obligation to reasonably move the action to a determination on the merits. Failure to do so, as in this case, amounts to significant prejudice to the respondent.
RESULT
[ 24 ] The applications by the plaintiff are dismissed. The applications by the defendant are granted, specifically:
a) the contempt motion is dismissed; and
b) the ex parte injunction dated March 20, 2009 which was varied on consent on June 12, 2009 is terminated since it relates to the content of the original claim which has now been dismissed.
[ 25 ] I will consider brief written cost submission to be submitted to Judicial Administration at 361 University Avenue, Toronto, by February 20, 2012.
B. O’MARRA J.
Released: February 8, 2012
COURT FILE NO.: 09-CV-370497
DATE: 20120208
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
DOMINIC POLSINELLI Plaintiff – and – GASPARI SANCI Defendant
REASONS FOR JUDGMENT
B. O’MARRA J.
Released: February 8, 2012