COURT FILE NO.: 07-CV-9402CM
STATUS HEARING HEARD: 20111003
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Julie Pouget, Plaintiff
AND:
Dr. Adrian Hynes, Defendant
BEFORE: Master Lou Ann M. Pope
COUNSEL:
Donald W. Leschied, for the Plaintiff
Brendan Gray, for the Defendant
HEARD: October 3, 2011
ENDORSEMENT
[1] This matter came before the court as a contested status hearing. The plaintiff requested this status hearing in response to a status notice issued pursuant to rule 48.14(1). Counsel consented to the status hearing proceeding this date based on affidavit evidence that had been served by each party prior to the hearing and the defendant’s brief of authorities, all being filed on the hearing date.
[2] In this action the plaintiff, a licensed nurse, seeks damages for misfeasance in public office, abuse of public office, negligence, and interference with economic relations arising out of the College of Nursing having issued a suspension of her licence. She alleges that such suspension resulted from the opinion of the defendant, a medical practitioner practising at the Regional Mental Health Centre in St. Thomas, Ontario, who had been appointed by the College to inquire and report on the plaintiff on her capacity and ability to practice her profession. Following his investigation, Dr. Hynes rendered an opinion.
[3] Unfortunately this action has been riddled with procedural problems, in particular relating to the status notices and status hearings under rule 48.14 that are important to understand in the context of the defendant’s request that this action be dismissed.
[4] There were two status notices issued by the court in this action, the second due to a court administrative error. Upon failing to set the action down for trial by June 1, 2011, the action should have been dismissed by the registrar as provided by rule 48.14(5).
[5] This action was commenced on June 26, 2007. The statement of claim was amended on July 12, 2007 and again by order dated January 22, 2008. The defendant filed a notice of intent to defend on February 7, 2008. On February 14, 2008, Cusinato J. dismissed the defendant’s motion to strike out the amended amended statement of claim as disclosing no cause of action, with the exception of the claim for malicious prosecution which was ordered struck out. Justice Gates refused the defendant leave to appeal the decision of Cusinato J. on December 17, 2008. Thereafter, the Divisional Court dismissed the defendant’s motion to set aside the order of Gates. J. on April 16, 2009. An amended amended amended statement of claim was issued on July 8, 2009. The statement of defence was filed on October 16, 2009. On January 20, 2010, defence counsel wrote to plaintiff’s counsel requesting the plaintiff’s affidavit of documents. On March 10, 2010, the registrar issued a status notice followed by the plaintiff’s request for a status hearing. The plaintiff delivered a draft affidavit of documents on June 7, 2010, eleven days before the first status hearing on held on June 18, 2010. Prior to the status hearing, the parties, through counsel, agreed to a timetable to complete the balance of the steps in the action, which was essentially all steps beyond pleadings, including the defendant delivering an affidavit of documents by August 30, 2010, completion of examinations for discovery by November 30, 2010, and mediation being held by April 30, 2011. The proposed timetable failed to set out a timeline for setting the action down for trial.
First Status Hearing
[6] Counsel for the plaintiff appeared at the status hearing and advised the court that she was also appearing as agent for counsel for the defendant whose office is located in Toronto as the parties had agreed to a timetable. This practice is not in compliance with rule 48.14(12) which requires the lawyers of record to attend a status hearing that is not to be held in writing. It is the practice in Windsor to permit out-of-town counsel to attend a case conference or status hearing by telephone upon request in writing. The status hearing proceeded in any event as the proposed timetable was incomplete in that it did not provide a time by which to set the action down for trial. As plaintiff’s counsel did not have authority to agree to a set down date on behalf of defence counsel, the timetable was not approved by the court and the plaintiff was ordered to file a new timetable by June 30, 2010 that included a date to set the action down for trial.
[7] A new timetable was not filed by the June 30, 2010 deadline. However, on August 9, 2010, the plaintiff filed a consent proposed timetable signed by both counsel and dated June 24, 2010, along with a draft order for a status hearing in writing. [1] On August 11, 2010, I signed the order which approved the proposed timetable; however I made two amendments to the timetable providing that the action was to be set down for trial by June 1, 2011 and that expert reports were to be delivered “as per Rules.”
[8] It appears however that when the plaintiff filed the signed order at the Registrar’s Office, my amendments to the timetable were not noted on the extra copies of the order, thus there are two copies of the entered order, one that contains the timetable with my amendments, and one without the amendments.
[9] It became obvious from the defendant’s material for the status hearing that the plaintiff’s counsel had not provided him with a copy of the signed order with the amended timetable. As such, the defendant was unaware that the timeline to set the action down for trial had been extended to June 1, 2011.
[10] To continue with the progress of this action, in late August 2010, defence counsel requested copies of the plaintiff’s Schedule A documents and, at the same time, advised plaintiff’s counsel that examinations for discovery of Dr. Hynes would have to take place in Winnipeg, Manitoba where he was practising at the time unless the plaintiff was willing to pay for his attendance in Ontario. At the same time, the plaintiff requested the defendant’s affidavit of documents and copies of all Schedule A documents. The defendant delivered his affidavit of documents on August 30, 2010 in accordance with the timetable; however, it is not sworn by the defendant, uncertified by defence counsel and none of the schedules contain a listing of any documents. The Schedules are marked either “Nil” or “N/A.” The defendant submits that the documents requested by the plaintiff are prohibited from being produced under provisions of the Regulated Health Professions Act, 1991 . [2] The relevant provisions of that Act were not provided by the defendant; however, in any event, that issue would be the subject of a motion if necessary. Plaintiff’s counsel took issue with the contents, or lack of, of the defendant’s affidavit of documents and in early September 2010, put defence counsel on notice that he was preparing a motion seeking a further and better affidavit of documents from the defendant and to examine the defendant in London. No such motion had been served by the time of the second status hearing on October 3, 2011, some 13 months after the plaintiff gave the defendant notice of the pending motion. On March 1, 2011 the plaintiff delivered a portion of her Schedule A documents. By the time of the second status hearing on October 3, 2011, the plaintiff had not delivered the balance of the Schedule A documents.
Second Status Hearing
[11] The court issued a second status notice dated June 6, 2011 as the action had not been set down for trial by the new set down date of June 1, 2011 in the timetable. As stated above, this second status notice was issued in error and the action should have been administratively dismissed on June 2, 2011. [3] This issue is discussed in more detail later in this decision. The plaintiff immediately requested a status hearing in response to this status notice. The second status hearing was held on October 3, 2011.
Law
Test at a Status Hearing
[12] If an action in which a defence has been filed has not been placed on a trial list or terminated by any means within two years after the first defence is filed, the registrar sends out a status notice. Pursuant to rule 48.14(4) the registrar will dismiss the action for delay 90 days after service of the status notice unless the action has been set down for trial or terminated, a timetable has been approved by the court, or the judge or case management master presiding at the status hearing has ordered otherwise. Where a party requests a status hearing, rule 48.14(13) requires that “the plaintiff shall show cause why the action should not be dismissed for delay.” If the presiding judge or case management master is “satisfied that the action should proceed,” subrule 48.14(13)(a) gives discretion to the judge or case management master to set a timetable for the completion of the remaining steps or make other orders as are just. However, if “not satisfied that the action should proceed,” the judge or case management master may dismiss the action for delay under subrule 48.14(13)(b).
[13] Before moving to the test that a plaintiff must meet at a contested status hearing, I will address an issue that arose in this proceeding as a result of the registrar having issued a second status notice rather than dismissing the action. As stated previously, at the first status hearing the court approved a consent timetable that set out timelines for the balance of the steps to be completed before the action was to be set down for trial on June 1, 2011. When June 1, 2011 passed and the action had not been set down for trial or terminated, the registrar issued another status notice. Rather, the registrar was required by rule 48.14(5) to dismiss the action for delay.
[14] Rule 48.14(5) states that:
If an action is not set down for trial, restored to a trial list or terminated by any means within the time specified in an order made at a status hearing , the registrar shall dismiss the action for delay, with costs. [Emphasis added.]
[15] Given this oversight, it could be argued that I should dismiss this action as it ought to have been administratively dismissed on June 2, 2011. Had that occurred, the plaintiff would have had the right to bring a motion to set aside the administrative dismissal. However, the test to set aside an administrative dismissal is different and in my view more onerous than the test at a status hearing. [4] In my view, it would be an error to require the plaintiff to satisfy the test to set aside an administrative dismissal at this status hearing because, firstly, the plaintiff properly requested a status hearing in response to the second status notice; secondly, the action was not dismissed; and thirdly, there is no such motion before the court. In the end, this plaintiff reaps the benefits from the oversight by the court. However, the fact that the timelines in the timetable order of August 11, 2010 have not been met is a factor that will be taken into consideration on this status hearing.
[16] The test that a plaintiff must meet at a contested status hearing was confirmed in a recent decision by the Court of Appeal in Khan . [5] The test places the onus on the plaintiff to satisfy both aspects of a two-part test; that is, to demonstrate that “there was an acceptable explanation for the involved litigation delay and that, if the action was allowed to proceed, the [defendant] would suffer no non-compensable prejudice.”
[17] There is no onus on the defendant to demonstrate prejudice; however, should the defendant show actual prejudice, the court will consider this as a relevant factor. [6]
Explanation for the Delay
[18] On June 24, 2010 when the draft timetable was signed by counsel, the defendant agreed to deliver his affidavit of documents by August 30, 2010. He did so notwithstanding being in draft form. Given that the timetable is suggestive that the defendant was to deliver a “draft” affidavit, as the plaintiff did earlier that month, it cannot be said that the defendant is in non-compliance with the timetable.
[19] Also on June 24, 2010 when the draft timetable was signed by counsel, the parties agreed to make documentary production by September 15, 2010. On August 24, 2010, the defendant requested copies of the plaintiff’s Schedule A documents. She did not make production until March 1, 2011 and only then did she make partial production. Clearly, the plaintiff was not in compliance with the timetable with respect to production. The plaintiff provided no explanation for late delivery of those documents, nor did she provide an explanation for failing to produce the balance of her Schedule A documents.
[20] The timetable required that examinations for discovery were to be completed by November 30, 2010, some four months after counsel signed the timetable. However, two months after signing the timetable, in late August 2010, defence counsel advised that Dr. Hynes’ examination for discovery would have to take place in Winnipeg, Manitoba where he was practising. As a result of this new fact, plaintiff’s counsel immediately put defence counsel on notice of an intended motion to examine Dr. Hynes in London. Interestingly, the letter from plaintiff’s counsel dated September 8, 2010 also stated that the intended motion would seek leave to examine Dr. Hynes for two days or 10 hours. While the timetable provided for the hearing of all discovery motions by March 30, 2011, no such motion was served by the time of this status hearing on October 3, 2011. In fact, some six months after giving notice of the intended motion, plaintiff’s counsel wrote to defence counsel enclosing many of the plaintiff’s Schedule A documents; however, he stated nothing about the intended motion. In my view, there was adequate time between late August 2010 and March 30, 2011 to have that motion heard. Some 11 months passed between notice of the intended motion and this status hearing. The plaintiff provided no explanation for her failure to, at a minimum, serve and ensure that the motion was returnable no later than March 30, 2011.
[21] It is acknowledged that when parties enter into a timetable, it is done on a prospective basis in that parties are expected to commit to completing a step in the action by a future date barring anything unforeseen. Counsel are not expected to be perfect and, indeed, at the time the timetable was signed by counsel on June 24, 2010, plaintiff’s counsel was unaware of the contents, or lack of, of the defendant’s affidavit of documents and of the issue regarding the venue of examinations for discovery of Dr. Hynes. However, this does not explain the delays in the plaintiff producing her Schedule A documents and failing to bring the intended motion in at least an attempt to comply with the timetable.
[22] It is noteworthy that neither counsel requested a case conference under rule 77.08(1) to request an amended timetable when it became obvious the timelines would not be met. In case managed actions such as this one, case conferences are available to any party upon request. Subrule 77.08(3) sets out a listing of matters that may be dealt with at a case conference, including reviewing and amending an existing timetable.
[23] The Divisional Court in Oberding [7] held that the court is required to make a “determination regarding the plaintiff’s intention to prosecute the action throughout the period since the commencement of the action.” Further, the Divisional Court in Donskoy [8] held that the plaintiff is required to not only explain the delay in the litigation, but also to provide a clearly articulated plan for moving the case forward.
[24] The affidavit filed by the plaintiff for this status hearing was sworn by an associate lawyer who works at the offices of plaintiff’s counsel. Plaintiff’s counsel filed no evidence that the plaintiff herself is even aware that two status notices were issued in this action as required by rule 48.14(9), nor was the plaintiff present at the status hearing. As such, the court is unaware of the plaintiff’s intentions of moving this action forward.
[25] The plaintiff’s material appears to explain the delay in this action due to the issues with the defendant’s affidavit of documents and the defendant having left Ontario and refusing to return to Ontario to be discovered. However accurate that may be, it fails to explain the significant delay in bringing the motion.
[26] The plaintiff has not provided a clear plan for moving the case forward including a timeline for bringing the motion. The affidavit states merely that a motion is “now required to consider the validity of that Affidavit of Documents, as well as the venue of the discovery of the Defendant.” Given the delay since putting the defendant on notice of the motion in September 2010, the plaintiff was required to commit to a date by which she would serve the defendant with the motion. Further, the plaintiff’s material proposes a revised timetable “if necessary,” a discovery plan and that all steps, including the motion, be completed within 12 months from the date of the status hearing. As stated in Donskoy , the plaintiff is required to provide a “clearly articulated plan for moving the case forward.” Simply put, it is not sufficient that the plaintiff request the court to impose a new timetable at a status hearing, particularly when the prior timetable had not been met. The plaintiff’s material, in my view, fails to provide a clear plan.
[27] In summary, it is my view that the plaintiff has provided an adequate explanation of the delay in this proceeding from June 26, 2007 when the action was commenced to October 16, 2009 when the statement of defence was delivered. Several amendments of the statement of claim and the defendant’s motions consumed the majority of this time.
[28] However, the following factors demonstrate that the plaintiff has not met her burden as she has not provided an acceptable explanation for the litigation delay:
She failed to explain the delay of over seven months from October 16, 2009 when the defence was filed to June 7, 2010 when the plaintiff delivered a draft affidavit of documents, 11 days before the first status hearing on June 18, 2010. It appears that the affidavit of documents was delivered then because of the impending status hearing.
She has failed to explain the delay in producing her Schedule A documents until March 2011 when the parties agreed to production in the timetable by September 15, 2010.
She failed to provide any explanation for not having produced several of her Schedule A documents having agreed to do so by September 15, 2010.
She failed to provide any explanation for the delay in bringing the motion regarding the defendant’s affidavit of documents and venue of the defendant’s examination for discovery. A delay of some 11 months from September 8, 2010 when plaintiff’s counsel put defence counsel on notice of the motion to the second status hearing on October 3, 2011 has not been explained.
She failed to provide any explanation for the delay from September 8, 2010, when plaintiff’s counsel gave notice of the motion, to the second status hearing on October 3, 2011 when the only step taken during that time was plaintiff’s production of some of her Schedule A documents.
She failed to provide the court with a clearly articulated plan to complete all of the remaining steps in the action.
There is no evidence from the plaintiff herself regarding her intentions and the reasons for the delay.
Given that the plaintiff has had the benefit of two status hearings, combined with the fact that the timelines in the timetable have not been met, requires a solid commitment from the plaintiff as to her intentions to move this case forward as quickly as possible. She has not done so.
No non-compensable prejudice to the defendant
[29] The second part of the test at a status hearing requires that the plaintiff demonstrate that the defendant would suffer no non-compensable prejudice should the action be allowed to proceed.
[30] The plaintiff submits that there is no prejudice to the defendant as the plaintiff has made production of “most” of her Schedule A documents. The plaintiff’s affidavit of documents was not provided with the material; however, the defendant does not dispute that she has produced a portion of those documents. Further, it appears from plaintiff’s counsel’s letter of March 1, 2011, that five of 15 listed Schedule A documents have not been produced; however, there is no evidence what those documents are. It is obvious from that letter that the plaintiff made significant production on March 1, 2011.
[31] The defendant adduced no evidence of prejudice; albeit, he was not required to do so.
[32] There is no suggestion that there is any prejudice regarding locating witnesses for trial or faded memories. The issues in this action relate primarily with the basis upon which Dr. Hynes’ arrived at his opinion and conclusion to the College of Nurses and the validity thereof.
Conclusion
[33] In summary, the plaintiff failed to provide a satisfactory explanation for the delay. I am satisfied on the evidence that the plaintiff has established that there would be no non-compensable prejudice to the defendant if this action proceeded. However, the plaintiff has the burden to satisfy both requirements of the test at a status hearing. She has not done so.
[34] For these reasons, I dismiss the plaintiff’s action for delay pursuant to rule 48.14(13)(b).
[35] If the parties cannot agree on the issue of costs, written submissions may be made by the defendant within 21 days of the release of this ruling, and those of the plaintiff within 14 days thereafter.
Original stamped “ Lou Ann M. Pope ”
Master Lou Ann M. Pope
Date: February 3, 2012
[1] Subrules 48.14(10) and (11).
[2] 1991, S.O. 1991, c. 18 .
[3] Rule 48.14(5).
[4] The test to set aside an administrative dismissal for delay was affirmed by the Court of Appeal in Scaini v. Prochnicki (2007), 2007 ONCA 63 , 85 O.R. (3d) 179 . The test requires that the court take a contextual approach in considering all relevant factors. A contextual approach involves the application of four factors in which the plaintiff has the onus to adequately explain the delay in the action, lead satisfactory evidence to explain the reason for missing the deadline, demonstrate that the motion was brought promptly and satisfy the court that the defendants have not demonstrated any significant prejudice as a result of the delay.
[5] Khan v. Sun Life Assurance of Canada , 2011 ONCA 650 , [2011] O.J. No. 4590 (C.A.), affirming 2011 ONSC 455 , [2011] O.J. No. 510 (SCJ).
[6] Riggitano v. Standard Life Assurance Co. [2009] O.J. No. 1977 (S.C.J.) at para. 34 , affirmed [2010] O.J. No. 292, 2010 ONCA 70 (C.A.) .
[7] Oberding v. Sun Life Financial Assurance Co. of Canada , [2010] O.J. No. 3122, 2010 ONSC 3303 (Div. Ct.) at para. 15 .
[8] Donskoy v. Toronto Transit Commission , 2008 47020 (ON SCDC) , [2008] O.J. No. 3634 at para. 14 .