1667207 Ontario Inc. v. Botnick, 2013 ONSC 153

COURT FILE NO.: CV-09-376234

MOTION HEARD: 20120215

ENDORSEMENT RELEASED: 20130204

SUPERIOR COURT OF JUSTICE – ONTARIO

RE:

1667207 ONTARIO INC. and WINSTON WRIGHT

Plaintiffs

• and-

JAMES BARRY BOTNICK, FIRST CANADIAN TITLE COMPANY LIMITED,

ALAN CHANG and TIMES SQUARE REALTY INC.

Defendants

BEFORE: Master D. E. Short

COUNSEL: M. Joseal Igbinosun Fax: 416-463-7668

for the plaintiffs

Aaron Postelnik Fax: 416-480-0017

for the defendants, Alan Chang and

Times Square Realty Inc.

John G. Webster Fax: 519-576-6361

for the defendant, First Canadian Title

Company Limited

R. Leigh Youd Fax: 416-364 3865

for the defendant, J. B. Botnick

HEARD: February 15, 2012

REasons for Decision

“Every individual is Equal before and under the law and has the right to the equal protection and equal benefit of the Law without discrimination.”

I. Preamble

1The Toronto Lawyers Association published a report on a ceremony which took place shortly after this motion was argued:

“Toronto, May 30, 2012---The McMurtry Gardens of Justice today celebrates the dedication of three new sculptures and the 80^th birthday of the Hon. R. Roy McMurtry, former Chief Justice of the Ontario Court of Appeal and the province’s Attorney General from 1975-1985.

Located in the pedestrian avenue that runs from University Avenue to Nathan Phillips Square between Osgoode Hall and the Courthouse at 361 University Avenue in Toronto, the sculpture garden and education centre recognize the decades of exemplary public service to the people of Ontario and Canada by the Honourable R. Roy McMurtry, while beautifying the judicial precinct.

“Equal Before the Law” by Eldon Garnet reinforces that the essence of the law is equality. Before and under the law, we are all equal. This is a poetic work where the symbolic signification represented by the lamb and the lion are not precise, but rather open to a multiplicity of associations and interpretations, all of which are encouraged.”

2When I came to write these reasons I by co-incidence was walking past the sculpture and had occasion to read and reflect on the inscription on the sculpture which is reproduced at the outset of these reasons.

3Recent decisions from the Ontario courts have indicated a willingness to prevent plaintiffs from proceeding to trial who otherwise commenced their civil actions within the time limits established by the Province’s Limitations Act.

4Actions which previously could have been brought within 6 years after the cause of action arose, now are being commenced within the mandated 2 years and then dismissed for failure move the action forward quickly enough, often at a point in time before the previously mandated period within which to commence the action would have expired.

5Various sets of eyes and minds have weighed the requirements of the rules regarding such cases. While this matter was under reserve a number of decisions interpreting the court’s duty in such cases have been decided. In Toronto the first stop for these cases running into timing problems is before the Case Management Masters.

6My colleagues and I are charged with weighing the positions of plaintiffs seeking to have their cases tried and defendants pointing to rules that require the plaintiff to meet an onus, which if unmet, will result in their action being dismissed. This is one such case.

II. The Players

7This is a case arising out of a commercial real estate transaction that went bad. The action is unusual in that the beneficial owner of the property and the client, who retained the plaintiffs’ counsel would appear to be Beverley Dwyer, (“Beverley”) who is described in the statement of claim as being “at all times the controlling mind, an officer and/or director of the plaintiff 1667207 Ontario Inc.” She however, is not a named plaintiff.

8The statement of claim has a number of apparent typographical errors but is sufficient to outline the nature of the plaintiffs’ claims. In the circumstances of this case I have not identified or corrected such errors in the bulk of the extracts set out in these reasons.

9In addition to the numbered company, the other named plaintiff is Winston Wright (“Wright”). The statement of claim, in part, indicates that at all material times Mr. Wright was :

“...the agent on behalf of the plaintiff, a friend of Beverley Dwyer and the assignor with respect to the purchase of the property. Winston agreed to put an offer on behalf of the plaintiff to purchase the property. When meetings took place between Winston Wright and either the broker or Botnick, Beverley Dwyer was present at all times. The plaintiff states that Winston attended Botnick’s office alone once to sign the mortgage documents and the document to assign the agreement to 1667207 Ontario Inc.”

10The named defendants constitute three players involved in various aspects of the 2007 purchase of a property located on Danforth Avenue in Toronto.

11The statement of claim identifies Mr. Botnick as a lawyer who acted for the plaintiff in the purchase transaction, which is the subject of this action. Mr. Chang and his employer, Times Square Realty Inc. are identified as both having the role of listing and selling broker with respect to the property and are also are alleged to have “arranged the purchase monies for the property through a vendor-take-back first mortgage.” These defendants are collectively referred to herein as “the broker”.

12While I understand that there may be an issue of misnomer, nevertheless the statement of claim alleges that the named defendant First Canadian Title Company Limited "provided the insurance policy coverage for the plaintiff and the mortgagee with respect to the purchase of the property." Without deciding in any way whether there was ever any valid policy of title insurance in place, I will nevertheless refer to this defendant as the “title insurer”

III. The Plaintiffs’ Case

13In August of 2007 Beverley was approached by the broker, who told her that he had a commercial and/or investment property available for sale on Danforth Avenue.

14The statement of claim alleges that at the time Beverley met with the agent. The property was listed with a different realtor with a contract that was effective until December 30, 2007.

15Wright signed an offer for the property (which was listed for $999,900) for $745,000. Negotiations over time lead to an offer of $810,000 being made and accepted. The statement of claim details numerous allegations about lack of inspections various warranties that were alleged to be have been given and schedules which were understood to of been included with the accepted offer.

16By way of an example of the manner in which the transaction is alleged to have come together, I note that the statement of claim reads in part:

“17. ... neither Winston nor Beverley reviewed the agreement again, since the only matter at issue was the selling price. The broker also assured Beverley that she will be able to review all the papers with Botnick including but not limited to the plans and designs, permits, work orders, mortgage terms, agreement or purchase and sale, etc. at this time Beverley or Winston has never purchased a commercial property before. The broker also advised the plaintiff not to make the transaction contingent on obtaining financing and inspections. The plaintiff relied on the professional judgment of the broker and agreed to do just that.

18. Before the price requested by the seller was agreed to, inquiry was made of the broker regarding responsibility for outstanding work in progress, permits, designs, plans and he made assurances that he will take care of them with the plaintiff's lawyer Botnick. The broker also made assurance that he will not have any problem getting the seller to give the plaintiff a first mortgage. On the assurances that the broker was acting in the best interest of the plaintiff and/or Winston Wright, they agreed to the purchase price of $810,000 on the mutual understanding that all items in the original schedule “A” were included in the Agreement.”

17The pleading asserts that apparently there was no Schedule “A” in the final agreement. It is stated that the plaintiff paid $30,000 deposit at time of making the offer and an additional $65,915 on closing. The statement of claim further alleges that Mr. Botnick was paid $20,830.92, for his fees and disbursements on the transaction.

18The Statement of claim alleges at paragraph 25 that:

“On closing not make advised that he has obtained a title insurance and all the required documents from the seller. Winston Wright and/or Beverley did not read the documents and they were not explained to them by Botnick.”

19Paragraph 29 of the statement of claim asserts:

29. The plaintiff wanted to renovate the property and lease it out in a short period. The renovation was scheduled to start in about the third week of December, 2007 but was terminated when the City Inspector attended at the property after closing on January 2, 2008 and placed a stop work order on the property for various outstanding stop work orders, permits, violations, etc. The plaintiff was unaware of these until now, the plaintiff thought that Botnick took care of these with the seller and title insurance.

20Beverley experienced difficulty in servicing the mortgage by virtue of these various problems. Relatively soon after closing, apparently in order to try to mitigate her damages the property was listed for sale by the plaintiffs on May 26, 2008. However, on June 6th, the mortgagee served a notice of sale under mortgage and demanded payment of $727,436 from the mortgagors.

21It is unclear from the pleadings, whether or not an actual policy of title insurance was in fact obtained. The pleadings allege that there was great delay in the title insurance application and supporting material being submitted to the title insurance company.

22Following the submission of that material, the situation described by the statement of claim was as follows:

“57. On August 27, 2008, title insurance advised that the policy did not cover the outstanding work orders and violations because Botnick did not disclose them in his report. Moreover, Botnick did not conduct the searches required by title insurance. Title insurance further advised that the real estate lawyer is required to conduct searches including searches with the Building Department prior to applying for commercial title insurance. It advised that a title insurance policy provides [sic] coverage for among others, compliance risks, such as non-compliance with restrictive covenants, the existence of work orders and major encroachments, access related rights involving tenancies, documents not properly signed, sealed or delivered, fraud, duress, incompetence, etc. The plaintiff pleads that Botnick acted negligently and incompetently, particulars the same are described below.”

23The defendants were aware of the nature of the claim against them in 2009 and clearly were in a position to retain all their relevant documentation. The sale transaction closed on November 30, 2007. In July of 2008 Beverley retained counsel to investigate her problems flowing from the transaction.

24The statement of claim was issued on April 9th, 2009 seemingly well within any applicable limitation period. No evidence was filed on the motion before me of any alleged actual prejudice which would be suffered by any defendant if an extension of the time period for setting the action down for trial was granted.

IV. The First Two Years of the Action

25Thus we have a purchaser who alleges she thought she retained a professional (and his employer) to assist in her first commercial real estate purchase. She paid over twenty thousand dollars for legal services with respect to that transaction and believed that she would also have proper title insurance to protect her expected interests in the property.

26All three professionals retained experienced defence counsel to represent their interests in the action. Before me they all opposed the plaintiffs’ extension request.

27Notwithstanding the situation in which Beverley found herself, she was able to find and retain a sole practioner to investigate and attempt to recover, in part by way of commencing this action in this court, the losses Beverley alleges she or her company suffered.

28At the status hearing two affidavits were filed by the plaintiffs’ counsel, setting out the history of elements of this action during the two years following the commencement of the action and thereafter.

29Both affidavits were sworn by an “Assistant” in the office of the plaintiffs’ lawyer. Regrettably, there was no affidavit material filed by either Wright or Beverley (or anyone else on behalf of the numbered company).

30The first affidavit with its exhibits was more than an inch thick. It was sworn in August of 2011 and asserts that in the period following the service of the statement of claim “the Plaintiff was very anxious to have this matter resolved quickly and was readily available to instruct Mr. Igbinosun whenever necessary.” Regrettably, there was no evidence before be specifically directed to whether or not that availability to instruct continued, without interruption, throughout the relevant two year period.

31The mortgagee is not a party in this action. However, the status of the first mortgage obviously was relevant to a number of issues in this case.

32One of the exhibits to this affidavit is a copy of a letter from Mr. Igbinosun to counsel for Mr. Botnick in part dealing with the efforts of Mr. Igbinosun to obtain information from counsel for the mortgagee involved in the power of sale. The letter continues as follows:

“Enclosed find the correspondence from First Canadian Title and the Notice of Sale under Mortgage which we trust that you find self- explanatory. We note for the record that Mr. Botnick REFUSED (on the face of the client's direction to do so) to provide the writer with this file including but not limited to his search results. Needless we say that we have had serious problems with Mr. Botnick. With respect, contrary to the allegations in your client's Defence, the title insurance premium and the final report were not sent to First Canadian Title until we asked Mr. Botnick to do so in July, 2008. The transaction closed in November 2007.

With respect, we take the possible [sic] that this matter ought to and should be resolved quickly so as to avoid mounting legal bills and damages."

33In 2009 there was an exchange of correspondence as to whether or not Mr. Igbinosun’s client was going to bring an action against the vendor of the property. The correspondence would seem to indicate that difficulties were encountered with respect to the activities of the mortgagee. For example in July, Mr. Igbinosun sought information about rent monies obtained by the mortgagee and whether those monies have been applied to the payment of realty taxes.

34On July 13 2009 Mr. Igbinosun wrote to counsel for the mortgagee a letter reading:

We were advised on July 9, 2009 by the Toronto Fire Department that there was a fire on the property recently. The Fire Department also advised when both yourself and your client were advised of the fire, they were told that your client was not the owner and/or in possession of the property. As you are aware, your client has been in possession for several months now. May we hear from you regarding this urgent matter."

35The affidavit in support of an extension indicates that during the summer of 2009, “It was becoming increasingly difficult to contact the Plaintiff Winston Wright to the extent that Mr. Igbinosun served the unsworn affidavit documents on all counsel on September 14, 2009." The covering letter asked counsel to advise their availability in November of 2009 for discoveries and indicated that "We trust that you will serve us with your respective clients’ Affidavits in due course."

36The scheduling of discoveries in multi-party actions is never easy. Counsel for the broker responded in late September of 2009 that he already had been discovery scheduled for mid November and had a trial scheduled for the last week in November. He indicated that if the trial did not proceed he could be available during the week of November 23. The letter continues "if you prefer dates with guaranteed availability, these will have to be in February 2010.”

37Counsel for Botnick indicated they were available, the last week of November, but noted that if counsel for the broker, "is still otherwise tied up during that week, then I suggest we book the week in February immediately."

38Mr. Igbinosun wrote on October the 27th, 2009 to all counsel, suggesting the second and third week of February 2010. Counsel for the title insurer indicated availability in February but noted that he had a trial on the trial list for that time, such that it might be necessary to re-schedule the discovery.

39By letter dated November 30, Mr. Igbinosun served notices of examination for discovery for the February 2010 dates. By letter dated December 1^st , counsel for the broker advised that:

“Unfortunately, in the more-than-one-month since we wrote to counsel, the writer has been served with an appeal which is scheduled to be heard on February 9. We do not have the ability to secure dates for more than a month in the hope that, maybe dates will be selected and fixed"

40The letter continued to advise that counsel's availability in the first quarter of 2010 “is rapidly diminishing” and suggested “an exhaustive set of dates for examinations of all parties be proposed, and then agreed, immediately.”

41At that time counsel for Mr. Botnick wrote to all counsel to indicate:

"Surely we can simply agree on a block of time. In order to expedite matters, we can all pick a time to have a conference call early in the morning (let’s say 9:00 a.m.) and have all our diaries ready and simply pick a date."

42A conference call was then apparently scheduled for January 20, 2010. Regrettably, Mr. Igbinosun was provided with the wrong call-in number and apparently the conference did not proceed. There seems to have been a series of attempts thereafter to try and arrange a conference call of all counsel. The defendants complained that Mr. Igbinosun missed numerous attempted calls such that the discoveries were never scheduled.

43Eventually Mr. Igbinosun wrote to propose discoveries in August and September of 2010. Counsel for the lawyer Mr. Botnick advised that he was available, one of the two proposed weeks, but otherwise was not free the following week as he had two trials which were expected to take approximately 6 weeks that were beginning in mid-September and he would need to two weeks before then for trial preparation.

44It appears that Mr. Igbinosun was also not having much luck with the mortgagee or its counsel. On July 29, 2010, he wrote to counsel for the mortgagee to indicate that he had not received an accounting of monies and rents received and disbursements made during the currency of the mortgagee's possession. The letter goes on to indicate:

“Despite our letter to you in August, 2009, you did not advise the writer that you were in the process of effecting a transfer of the property.

On July 27, 2010 (some 10 months later) we asked you for an update and your response was at the property has been sold and that your client is about to travel and might not be able to provide an accounting of the sale and the use of the rents collected. We note from the title search report that which we obtained yesterday that the property was sold on September 4, 2009. As you are aware of the mortgagor is entitled to an accounting and your client is failed to do so."

45That information was clearly required for any resolution based on the quantum of the plaintiffs’ alleged provable losses.

V. On the Way to a Status Notice

46There seem to of been a number of communication problems encountered by Mr. Igbinosun. Perhaps some of these difficulties were due to be the nature of this sole practitioner’s litigation practice. For example one of the faxed letters from the mortgagee’s counsel indicates a faxed letter sent a month earlier “did not go through to your fax machine”.

47It would clearly appear while he was not moving his case forward very effectively. Nevertheless it seems to me that the evidence suggests that his conduct was a long way from, in effect, abandoning this case.

48By letter dated July 29, 2010, having obtained details from the mortgagee’s solicitor of the sale under mortgage of the property purchased by the plaintiff for $810,000, Mr. Igbinosun wrote to all counsel in these terms:

“At this stage Gentleman we should seek instructions from our respective clients with respect to early resolution. The missing puzzle is now in place. We know now that the property was sold for $455,000. We suggest that we should sincerely attempt at resolution before spending money on discoveries."

49Once again Mr. Igbinosun seems to have missed a telephone conference call at some point after sending the above letter. He once again was seeking available dates for discovery and concluded his letter in these terms:

“This matter has sat idle for some time now. Since our offer has been rejected, our instruction is to commence discovery ASAP."

50More abortive attempts to arrange a telephone conference to schedule discoveries seem to have occurred. Counsel for Mr. Botnick wrote on January 5 to indicate his client. He and his client were available in February and March of 2011. That letter continued:

“As per the Rules once we agree on dates, we should set up a Discovery Plan which will deal with issues of production and of course, length of time for examination of each deponent.”

51Yet again, on March 9, 2011, another attempt at a conference call to schedule discoveries was stymied by the absence of plaintiff's counsel. Mr. Igbinosun's letter of that date reads as follows:

“We were late this morning for the 11:00 am telephone conference call. Our office was closed until 11:39:00 am. The moment we were available, we initiated another conference call at 11:42 am and regrettably, Mr. Youd and Mr. Zasada were not present and the conference did not proceed. We acknowledge receipt of Mr. Zasada’s e-mail, wherein he advised that he will not conduct further telephone conference call with us in this matter. In light of the history of missed dates, we suggest that we reduce our communication to writing. It is our view that we will be able to accomplish the same objectives.

In moving forward, we are content with you providing your availability for discoveries in writing. Our office will coordinate the date, if that is satisfactory with you.

Please provide your response by the end of the week, Friday, March 11, 2011."

52Almost two months later, on April 28, 2011, a Status Notice was issued by the court. On July 11, 2011, Mr. Igbinosun issued and served a Status Hearing Request which lead to a notice of a status hearing, scheduled for August 25 2011, being served on all parties.

53Perhaps surprisingly, the foregoing sets out only some vignettes of problems complained about by the various defence counsel in support of their arguments that this action ought to be dismissed at that status hearing.

VI. Defendants’ Response

54Exactly one week before the return date, on August 18, the title insurer’s counsel’s

affidavit was sent for service on Mr. Igbinosun’s office.

55That affidavit (also more than an inch thick) contained 68 numbered paragraphs and had 56 exhibit tabs running from “A” to “DDD”. That mass of correspondence and documentation would generally not match my impression of a “dormant” matter.

56The last paragraph of the affidavit reads:

68. I make his affidavit in support of a motion to dismiss the within action at the status hearing called for this matter, and for no other or improper purpose.

57As noted elsewhere, there really is no requirement for aformal notice of motion to be filed by either side with regard to a Status Hearing.

58Paragraph 36 of the affidavit reads:

36. By letter, dated June 8, 2010, I pointed out, repeating earlier advice, that the plaintiffs had sued the wrong defendants and, moreover, that the Affidavit of Documents was inadequate and incomplete. I asked Mr. Igbinosun to confirm that, since the documents produced did not establish any evidence in support of any claims for liability, causation, or damages, his clients have confirmed that there were no other additional documents. I was, and remain, concerned that the parties will waste time and money on examinations for discovery, only to have subsequent documents produced requiring extensive further examinations....”

59This is the only affidavit filed on behalf of any of the defendants. Nowhere does it assert any prejudice that might be suffered as a result of a further extension of this action. As well, it is clear that there was concerned by the defendants as to the wisdom of proceeding with the discoveries until various matters were further clarified.

60The plaintiff filed two affidavits in response, both sworn by an assistant in the office of Mr. Igbinosun. There were no materials sworn by the plaintiffs or Beverley. The first affidavit appears to have been sworn on the date set for the Status Hearing, August 25, 2011 and sets out the various delays previously identified in these reasons.

61Clearly the matter could not proceed on the original return date. At that time the defendants requested that the action be dismissed for delay and filed the affidavit in support of its position. After hearing submissions from all counsel, I concluded that the matter was vulnerable to dismissal for delay and based on Bolohan v. Hull, 2012 ONCA 121, I adjourned the matter to a full hearing.

62The second affidavit, sworn in support of the Plaintiffs’ position dated November 30, 2011, utilizes some 93 paragraphs, indicating that the affidavit was made in response to the defendants’ motion to dismiss the proceeding. Once again, this statement misconstrues what I believe to be applicable onus. It is the plaintiff who needs to satisfy the court that an action ought not to be dismissed for delay.

63Virtually 90% of the paragraphs in this latter affidavit commence with the phrase, “I am advised by Beverley and I verily believe that”.

64In addition to the problem that Beverley is not in fact, the plaintiff in this action, the affidavit would seem to fail to set out any clear assertion of a continuing intention to proceed to trial throughout the previous two years.

65Only two paragraphs seem to have any real bearing upon the delay to date and the matters that are of concern to me at this stage:

91 I am advised by Beverley and I verily believe that the plaintiffs have a meritorious case and if this matter is dismissed she would suffer severe damages and it would be unfair if this were to be the case.

92. I am advised by Mr. Igbinosun and I verily believe that the plaintiffs are ready to agree to a timetable to bring this matter to trial."

66As partially described above, the balance of the affidavit, to my mind does enumerate sufficient alleged facts that, if proven, would seem to entitle the plaintiffs to some form of relief against one or more defendants. Is that enough?

67Following the original return date it took a number of case conferences and adjournments to finally get this matter to the point where it was finally argued almost 10 months after the status notice was first issued.

68I regret that delays, in part flowing from my assuming new responsibilities as Registrar in Bankruptcy, have meant even more delays in coming to the release of this decision.

VII. Dismissal of an Action for Delay by the Registrar and Status Hearings

69Over the years different approaches to facilitating access to justice have been implemented in Ontario. The year 2012 marked the 175th consecutive year in which Masters have been part of Ontario’s judicial system. When an intensive “hands-on” case management system was introduced, one of the key essentials to that initiative was the expansion of our role with the position of Case Management Master being created. Under that system each case had a specific master responsible for moving the case efficiently towards trial. That system operated in Toronto for a number of years.

70In more recent times it was determined that the bar ought to have more independent control over the time lines in moving their cases to trial. The Practice Direction then made applicable in the Toronto Region read in part:

“[27] Under rule 77.01(2)1, parties are required to assume the greater share of responsibility for managing their own actions. However, "light touch” case management under Rule 77 is available on an "as needed/as requested" basis in accordance with the provisions of the rule."

71Notwithstanding the optimism expressed in this provision of the practice direction we now have many plaintiffs’ cases that are not subject to individual case management but instead are adversely impacted by the provisions of Rule 48 which deals with “Listing for Trial.

72Historically an action that was not moving forward towards trial could be the subject of a motion to dismiss for want of prosecution. At present Rule 24 deals directly with the dismissal of an action for delay. In the 2012 edition of Watson and McGowan’s Ontario Civil Practice the commentary on this rule notes that previously on such motions:

“The courts have tended to be extremely reluctant to dismiss cases for delay or non-compliance with the Rules. ...However, courts may exercise their discretion to strike where the plaintiff’s conduct in causing of the delay can be characterized as inexcusable, intentional and contumelious.”

73The authors observe that this reluctance may be changing and that any delay in the prosecution of an action “ requires an explanation” and that:

“In the absence of an explanation by the plaintiff, the presumption is that the delay is intentional. In this 13- year- old action, the plaintiff failed to provide an explanation for the delay: Berg v. Robbins, 2009 CarswellOnt 8705; 266 O.A.C. 200; 82 C.P.C. (6th) 33 (Div. Ct.)”

74This Rule has not been repealed. However two alternative routes for an action to be dismissed have been grafted onto the Rules. As I have observed above, the discontinuance of universal “hands-on” case management has left behind rules which now are applied automatically in what I regard as new and different environment to terminate, “with prejudice”, existing actions where the plaintiff fails to take certain steps within two years of commencing the action. Often this system works to the benefit of defendants and those responsible for satisfying potential judgments awarded against those defendants.

75In Rule 24 motions the onus is on the defendant to satisfy the court the court that the action ought to be dismissed. Not surprisingly, with the addition of the new status hearing provisions, defendants seem to be holding their fire until a status notice is issued, to take advantage of the shift in onus to the plaintiff. Having regard to the goal of access to justice and resolution on the merits, one is left to ponder the rationale for differing tests and onuses under the two rules. Does this constitute “equal benefit of the Law without discrimination”?

VIII. Dismissals by the Registrar and Status Hearings

76The provisions of Rule 48 address two different points in an action where their action is liable to be dismissed on procedural grounds without a trial. It seems to me that since the tests are aimed at two very different fact situations, consideration needs to be given as to whether the tests to be applied at a point before or after the Registrar has dismissed an action should be different in each case. More particularly, ought the height of the hurdle the plaintiff must overcome be different?

77Rule 48 is headed “Listing for Trial”. Clearly the primary focus of its provisions is the proper method of getting a plaintiff’s case heard by a judge.

78Subrule 48.14 deals with the subject “Action Not on a Trial List”. It has two different targets.

79Firstly there are those actions where the plaintiff has taken no steps to set the matter down and has done nothing after issuance of a status notice by the court, to indicate to the court a desire that the matter not be dismissed. That portion of the rule (with my emphasis added throughout) reads:

(4) The registrar shall dismiss the action for delay, with costs, 90 days after service of the status notice, unless,

(a) the action has been set down for trial or restored to a trial list, as the case may be;

(b) the action has been terminated by any means;

(c) documents have been filed in accordance with subrule (10); or

(d) the judge or case management master presiding at a status hearing has ordered otherwise.

(5) 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.

80Clearly the above provides a route for a plaintiff to seek to preserve its pending action by way of a status hearing. Once again, I note such a hearing is a somewhat unorthodox proceeding in that there is no Notice of Motion or formal record required to be filed by either side. As will be seen from the extracts from Rule 48 below, the plaintiff simply files a notice with the court requesting a status hearing in which case the registrar shall mail to the parties a notice of the status hearing, and the hearing is scheduled before a judge or case management master.

81In the bulk of cases not set down within two years, the parties co-operatively use subsection (10) of the rule:

(10) Unless the presiding judge or case management master orders otherwise, the status hearing shall be held in writing and without the attendance of the parties if a party files the following documents at least seven days before the date of the status hearing:

1. A timetable, signed by all the parties, containing the information set out in subrule (11).

2. A draft order establishing the timetable.

(11) The timetable shall,

(a) identify the steps to be completed before the action may be set down for trial or restored to a trial list;

(b) show the date or dates by which the steps will be completed; and

(c) show a date, which shall be no more than 12 months after the date of the status hearing, before which the action shall be set down for trial or restored to a trial list.

82Where a party refuses to agree to the timetable proposed (as in this case) subsection (13) outlines the required next step:

(13) At the status hearing, the plaintiff shall show cause why the action should not be dismissed for delay and,

(a) if the presiding judge or case management master is satisfied that the action should proceed, the judge or case management master may,

(i) set time periods for the completion of the remaining steps necessary to have the action placed on or restored to a trial list and order that it be placed on or restored to a trial list within a specified time,

(ii) adjourn the status hearing to a specified date on such terms as are just, or

(iii) if the action is an action to which Rule 77 may apply under rule 77.02, assign the action for case management under that Rule, subject to the direction of the regional senior judge,

(iv) make such other order as is just; or

(b) if the presiding judge or case management master is not satisfied that the action should proceed, the judge or case management master may dismiss the action for delay.

83This is the environment and context that I come to determine whether, following argument at a Status Hearing, the Plaintiff has shown cause why the present action ought not to be dismissed at this time.

IX. Developing Caselaw

84In the period since this motion was argued new caselaw has been decided which has meant that further analysis and consideration of the appropriate the judicial approach to Status Hearing cases as the area was undergoing a refinement through a series of decisions by a variety of judicial officers.

85In particular, a decision of the Court of Appeal was released some 3 months after the plaintiff requested the status hearing in this case. The appeal book endorsement in 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) ( with my emphasis) reads in part:

1 THE COURT: -- We see no basis on which to interfere with the motion judge's discretionary decision to dismiss the appellant's action on the basis of delay. At the status hearing, which was originally requested by the appellant, the appellant bore the burden of demonstrating that there was an acceptable explanation for the involved litigation delay and that, if the action was allowed to proceed, the respondent would suffer no non-compensable prejudice.

2 On this record, the appellant failed to meet either branch of this test. Based on the affidavit materials filed on behalf of the appellant, it was open to the motion judge to conclude that no plausible explanation for the appellant's delay in proceeding with the action had been advanced. There was evidential support for the motion judge's finding that insofar as the appellant and his counsel were concerned, "this file has simply been ignored".

3 Further, the motion judge made no error in concluding that the appellant had also failed to demonstrate the absence of prejudice to the respondent, at least in respect of the appellant's claim for long-term disability benefits. Moreover, counsel for the appellant made no suggestion before the motion judge that the appellant's short-term and long-term disability benefits claims could or should be severed.

4 The appeal is therefore dismissed.

86In Koepcke v. Webster, 2012 ONSC 357, [2012] O.J. No. 230; 2012 ONSC 357 Master Dash was also dealing with a contested Status Hearing where the plaintiffs were required to show cause why their action ought not to be dismissed for delay.

87I have reflected upon his detailed analysis and his identification of the various philosophical positions to be considered in exercising the discretion given to the decision maker in these cases. The following extracts (footnotes omitted) give a partial outline of the development of jurisprudence in this area described by him in determining his view of the appropriate test to be provided at a Status Hearing:

12 .... In accordance with rule 48.14(13), at the status hearing "the plaintiff shall show cause why the action should not be dismissed for delay" and if the judge or case management master "is satisfied that the action should proceed" a timetable may be set or other orders made as are just. If "not satisfied that the action should proceed, the judge or case management master may dismiss the action for delay."

14 The test that a plaintiff must meet at a contested status hearings has been set out in a number of decisions of the Superior Court and the Divisional Court and has now been confirmed by the Court of Appeal in Khan as follows: The plaintiff bears "the burden of demonstrating 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." The plaintiff bears the burden of satisfying both aspects of the test.In summary, rule 48.14(13) imposes an onus on the plaintiff to show cause why the hearing should not be dismissed for delay.

15 The explanation for the delay must be such as to justify continuance of the actionor put another way to satisfy the court that the action should be permitted to proceed. This "requires, among other things, a determination regarding the plaintiff's intention to prosecute the action throughout the period since the commencement of the action.” “Legal proceedings are not to be undertaken lightly. Plaintiffs have a responsibility to prosecute their actions diligently and in accordance with the rules of civil procedure.”The court at a status hearing “must be fundamentally concerned with the progression of cases and the impact this has on the appearance of justice ... there is ‘an important value of having disputes resolved in a timely fashion.’ ” There is a dominant theme in the civil justice system to discourage delay and encourage judicial involvement to ensure timely justice.

88Dealing with whether the defendant has an onus to demonstrate any prejudice as a precondition of a dismissal order Master Dash notes:

17 There is no onus on the defendant to demonstrate prejudice, but if he does adduce evidence of actual prejudice that will be a factor for the court to consider. The reference to prejudice means non-compensable prejudice.

89A key component of Master Dash’s analysis addressed “A Contextual Approach, Competing Principles and the Exercise of Discretion”. There would not seem to be unanimity with respect to the situations in which the court is entitled to undertake a contextual analysis in cases lagging behind the time standards established by the Rules. My colleague’s position is summarized by him in Koepcke which was a status hearing case :

18 In my view, the plaintiff need not rigidly satisfy both aspects of the test but the two factors, acceptable explanation for the delay and demonstrating absence of prejudice to the defendant, must be considered, together with any other relevant factors, on a contextual basis. Although the Court of Appeal in Khan did not address a contextual approach at a status hearing, other decisions of the Court of Appeal have determined that a contextual approach is required on motions to set aside a registrar's dismissal of an action that resulted from a failure to set an action down within the time set out in a status notice (where no status hearing was requested) or as set out in a status hearing order. The Court of Appeal set out the four principal factors (known as the "Reid factors") to be addressed on motions to set aside a registrar's dismissal. Two of those factors are the same as the two factors to be addressed at a contested status hearing. (The other two factors do not apply at a status hearing, but only where the action has been dismissed.) The Court of Appeal held that when considering the setting aside of a registrar's dismissal the plaintiff need not rigidly satisfy each of the four factors but they are to be considered together with any other relevant factors on a contextual basis to make such order as is most just in the circumstances of the particular case. If a contextual approach is to be used after an action has been dismissed for failure to comply with a status hearing order it speaks even louder that a contextual approach should be followed at a contested status hearing, before the action is dismissed.

90He goes on to point out:

19 Some of the jurisprudence considering the approach at a status hearing indicate that even where the plaintiff does not satisfy both aspects of the test the court has discretion to permit the action to proceed at a status hearing. For example in Donskoy at the Divisional Court, [Donskoy v. Toronto Transit Commission, [2008] O.J. No. 3634] J. Wilson J. indicated that it may be reversible error to dismiss an action at a status hearing where there are no outstanding orders and which has now come before the court for the first time, in which case a "guillotine" order requiring compliance may be the appropriate order, provided that there is a credible explanation for the delay and the plaintiff has articulated a plan to move the case forward.¹⁷ At the Divisional Court in Clements, J. Wilson J. repeated her above referenced reasoning in Donskoy.[Clements v. Greenlaw, [2009] O.J. No. 2688 (Div. Ct.) at para. 20]

She also indicated that the practice at status hearings is for counsel to speak to the matter and set a timetable for moving the case forward. In particular, she noted that "status hearings are a management tool to get cases on track, and move a case forward in a reasonable fashion if it has been languishing."¹⁹ She concluded that "unless there are clear, extraordinary circumstances, it would not be appropriate to dismiss an action at the first status hearing"....^...”

91Master Dash’s continuing examination of the case law demonstrated that there was a wide range of judicial opinion on the appropriate approach to these cases. This uncertainty surely forms part of the context to be considered in these cases currently. For example the Divisional Court in Oberding v. Sun Life Financial Assurance Co. of Canada, [2010] O.J. No. 3122, 2010 ONSC 3303 did not however share the view in Clements that it was inappropriate to dismiss an action at a first status hearing and concluded that actions could be dismissed if the plaintiffs failed to satisfy the court that there was an explanation for the delay that justified continuation of the action even if there was no prejudice shown by the defendant.

92Justice Goodman in Kostruba and Sons Inc. v. Pervez, [2011] O.J. No. 2088 (SCJ)

relied on these decisions to state that dismissal would be an unusual remedy for a case before the courts for the first time at a status hearing but went further and indicated that dismissal was reserved for cases of actual prejudice, flagrant breaches of various court orders, intentional defaults or inexcusable delay giving rise to a substantial risk that a fair trial may not be possible.

93Master Dash notes that this case was decided before the Court of Appeal decision in Khan and “goes much further than any of the other jurisprudence, none of which refers to flagrant breaches and intentional defaults as a pre-condition for dismissal at a status hearing.”

94He expresses his personal view that “Kostruba mistakenly applied the test used on motions to dismiss for delay under rule 24.01 where the onus is on the defendant and is not good law when applied to status hearings.” Nevertheless, I am not prepared to disregard Kostruba entirely. It seems to me that in a case where there has been some degree of activity and no one has moved to dismiss the plaintiff’s action for failing to demonstrate a valid cause of action, ought only in very rare situations be dismissed when before the courts for the first time at a status hearing.

95I acknowledge that Justice O’Connell in a more recent decision in Canadian Champion Auto Services Ltd. v. Petro-Canada, 2011 ONSC 6794 indicated his disagreement with the test as articulated by Goodman J. in Kostruba. There his Honour confirmed that it was his view that the onus is on the plaintiff to meet both branches of the test as set out by the Court of Appeal in Khan. While he specifically rejected the notion that "the mere fact that this case has only seen the light of day at one status hearing has any bearing on the outcome" he nevertheless accepted that the fact that the case is before the courts for the first time at a status hearing may "be a factor in some cases [but] it is not determinative.”

96His view that this ought to be the case was supported by his observation that:

“Indeed if it were otherwise a first status hearing would be a simple conduit for further delay."

97The removal of universal case management now means that the first opportunity for the court to exercise a “hands on” form of case management is at the requested status hearing. In my view this situation can lead to the alternative conclusion that the intervention of the Court may assist the parties in moving the action ahead to trial. If the Plaintiff fails to follow the courts guidance flowing from the first status hearing, a very different result may well be mandated at the next status hearing.

98O'Connell J. clearly recognized that the court must be "cautious and scrupulously apply the test on a status hearing" before the court takes away a right to have the case determined at trial, the test being that articulated in Khan.

99Master Dash concludes this portion of his analysis in Koepcke describing what he regards as the proper approach to Status Hearing cases (my emphasis):

22 Finally, although the court at a contested status hearing must be guided by the two-part test articulated in Khan, and recognizing that the onus is on the plaintiff to satisfy both branches of the test, the determination whether to allow the action to proceed is discretionary. Rule 48.14(13) (b) provides that the court "may" dismiss for delay. There will be some cases where a plaintiff can show cause that "on the whole, it would be unfair for the action to be dismissed. Determining fairness or unfairness requires a consideration of all the circumstances and a certain balancing of the respective interests of the parties."As Master MacLeod stated in Amirrahmani, what the court accepts as a justifiable or acceptable explanation is "case dependant." [Amirrahmani v. Wal-Mart, 2011 ONSC 6608, [2001] O.J. No. 4987]

23 To some extent this echoes the sentiment echoed by the Court of Appeal on motions to set aside a registrar's dismissal where the court must exercise its discretion based on a consideration of two competing principles in our civil justice system - the public interest in discouraging delay and permitting actions to be determined on their merits. In particular Laskin J.A. said in exercising discretion on such motions, "two principles of our civil justice system ... come into play ... The first ... is that civil actions should be decided on their merits ... The second principle is that civil actions should be resolved within a reasonable timeframe ... 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. On motions to set aside an order dismissing an action for delay, inevitably there is a tension between those two principles."³⁰ Justice Laskin adds [in Hamilton (City) v. Svedas Koyanagi Architects Inc., 2010 ONCA 887, 104 O.R. (3d) 689, [2010] O.J. No. 5572 (C.A.)] that the amount of weight to be assigned to each consideration "will vary from case to case. The court's overriding objective is to achieve a just result - a result that balances the interests of the parties and takes into account the public's interest in the timely resolution of disputes." In my view, this approach is equally applicable at a contested status hearing.

100To which conclusion I would add “timely resolution on the merits” and a presumed entitlement to such a determination on the merits, in “close” cases.

X. Weighing the Test

101In the fall of 2012 other Masters’ reasons brought further perspective to this issue.

102My colleague Master Graham had occasion in Deverett Professional Corporation v. Canpages, 2012 ONSC 5835; [2012] O.J. No. 4836, to express a different view on the applicability of a contextual approach. There after the statement of claim was issued there was no contact between the parties for over two years from the delivery of the statement of defence until counsel for the plaintiff, having received a status notice from the court, sought consent to a timetable from the other side.

103In considering the appropriate approach in such cases he held:

“[7] The test on this contested status hearing is whether the plaintiff has met the onus of demonstrating first, that there is an acceptable explanation for the litigation delay and second, that if the action were permitted to proceed, the defendant would suffer no non-compensable prejudice. (See: Khan v. Sun Life Assurance, 2011 ONCA 650 at paragraph 1) Despite the comments of Master Dash at paragraph 18 of Koepcke v. Webster, 2012 ONSC 357, [2012] O.J. No. 230 that the two factors must be considered on a contextual basis, the Court of Appeal, at paragraph 32 of 1196158 Ontario Inc. v. 6274013 Canada Limited, 2012 ONCA 544, states:

“The test is conjunctive, not disjunctive. Even if the plaintiff can provide a satisfactory explanation for the delay, the action will be dismissed if there would be prejudice to the defendant. And if the plaintiff is not able to provide a satisfactory explanation for the delay, it is still open to the judge to dismiss the action, even if there is no proof of actual prejudice to the defendant”.

8Finally, as stated in Koepcke, supra, “there is a dominant theme in the civil justice system to discourage delay and encourage judicial involvement to ensure timely justice”.

104The “General Principle” propounded in the Rules is found in Rule 1.04:

1.04 (1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.

105While I agree that discouraging delay and for judicial involvement in moving cases forward is highly desirable; I am not convinced that the existing case law establishes or ought to establish this result as trumping the other desirable goals of access to justice and resolution on the merits. This particularly the case, having regard to the general principle applicable to “every civil proceeding” mandated by the above rule.

106Master Graham in Deverett concluded that the plaintiff has not provided an acceptable explanation for the litigation delay, and relying upon the passage from 1196158 Ontario Inc. quoted above, held that he had sufficient reason to dismiss the action. While observing that it was not necessary for his decision to address the second test, he went on to find that the plaintiff has only partly met its onus to demonstrate that if the action proceeded, there would be no prejudice to the defendant. Therefore, the action was dismissed by him.

107Status hearing cases are clearly fact driven. In Farmers Oil & Gas Inc. v. Ontario (Ministry of Natural Resources), Master Graham held that the facts, as found by him, did not justify dismissing the action at this stage. That decision was appealed.

108In upholding the Master’s decision, Justice T. Ducharme held, in reasons found at [2012] O.J. No. 5570, that the Master did not exercise his discretion on the wrong principles. In those reasons his Honour canvasses “The Significance of Delay in the Civil Justice System” and considers a number of recent Court of Appeal decisions bearing on the importance of timely resolution of disputes.

109As well Justice Ducharme presents examples of the courts’ recognition of the desirability of disputes being resolved on their merits (emphasis as in original, footnotes omitted) :

50 While the dismissal of an action for unexplained delay is "a heavy price to pay" there is nothing unfair about such a result. As noted in 1196158 Ontario Inc. at para. 33 "At some point, a party who has failed to respect the rules designed to ensure timely and efficient justice loses the right to have its dispute decided on the merits." Indeed, tolerating delay will often result in unfairness as "even if there is no actual prejudice, allowing stale claims to proceed will often be unfair to the litigants. Disputes are more likely to be resolved fairly if they are resolved in a timely fashion and accordingly, the enforcement of time lines helps achieve the ultimate goal of fair resolution of disputes."²² Thus, it is not surprising that Justice Sharpe made clear the limited force a generic claim to fairness will have in delay cases, expressly adopting the language of Glithero J. in Riggitano v. Standard Life Assurance Co., [2009] O.J. No. 1997 (S.C.), at para. 45, aff'd 2010 ONCA 70:

If the common submission, as made here, to the effect that a dismissal would be unfair to the plaintiff is permitted to always trump the provision in the rules contemplating a reasonably timely procedure for the disposition of actions, then the rule would be effectively gutted.

51 Despite the obvious importance of all the foregoing, it must also be recognized that, while timely justice is a critically important goal of the civil justice system, it will not always trump all other considerations. In both Marché and 1196158 Ontario Inc., despite the fact that the dilatory plaintiffs had their actions stayed, Justice Sharpe tempered his emphasis on the need for efficient litigation somewhat with a reiteration of the principle that "The law will not ordinarily allow an innocent client to suffer the irrevocable loss of the right to proceed by reason of the inadvertence of his or her solicitor."Thus, in Marché at para. 34 he stated:

The Rules of Civil Procedure must be interpreted in a manner that recognizes that expeditious justice is only one value to be weighed against others and that delay may be excused where necessary to ensure complete justice. ... Expeditious justice must be balanced with the public interest in having disputes determined on their merits. Where, despite the delay, the defendant would not be unfairly prejudiced should the matter proceed for resolution on the merits, according the plaintiff an indulgence is generally favoured. [Emphasis added.]

52 In a similar vein in 1196158 Ontario Inc. at para. 19 Sharpe J.A. wrote:

On the other hand, procedural rules are the servants of justice not its master. We must allow some latitude for unexpected and unusual contingencies that make it difficult or impossible for a party to comply. We should strive to avoid a purely formalistic and mechanical application of time lines that would penalize parties for technical non-compliance and frustrate the fundamental goal of resolving disputes on their merits. As Laskin J.A. stated in Finlay v. Paassen, 2010 ONCA 204, 101 O.R. (3d) 390, at para. 14: "the Rules and procedural orders are construed in a way that advances the interests of justice, and ordinarily permits the parties to get to the real merits of their dispute." [Emphasis added.]

53 It is precisely the need to balance these competing values, efficiency and a just resolution on the merits, which make the proper resolution of cases such as this so difficult. Sharpe J.A. described this well in 1196158 Ontario Inc. at para. 20:

The challenge posed in cases involving dismissal for delay is to find the right balance between, on the one hand, the need to ensure that the rules are enforced to ensure timely and efficient justice and, on the other, the need to ensure sufficient flexibility to allow parties able to provide a reasonable explanation for failing to comply with the rules to have their disputes decided on the merits.

110It is the extent of that flexibility, available in this case, that now needs to be addressed.

111At the end of October 2012, in Horn v. Stefauis, [2012] O.J. No. 5124; 2012 ONSC 6141, Master Muir in was dealing with an action arising out of a 2007 accident.

112Ultimately he found that the plaintiff proposed a reasonable timetable for completing the action, that documents and witnesses were available, and that any delay was not undue and any prejudice to defendants was compensable with costs.

113In considering the appropriate approach he commented:

12 The test is conjunctive. The presiding judge or case management master may still dismiss the plaintiff's action even in situations where the delay has been satisfactorily explained or the plaintiff has demonstrated that the defendant would not be prejudiced. See 1196158 Ontario Inc. v. 6274013 Canada Ltd., 2012 ONCA 544 at paragraph 32. The court must balance two important competing principles of our system of civil justice: the public's interest in discouraging delay and the preference for a determination of disputes on their merits. Ultimately, however, the decision of the court on a contested status hearing is a discretionary one and the court should make the order that is just in the circumstances of each particular case. See Koepcke v. Webster, 2012 ONSC 357 (Master) at paragraph 23.

13 Although this case is certainly a "close call" I have come to the conclusion that the plaintiff has met the applicable test and that this action should be allowed to continue. The progress of this litigation has been far from ideal. There are several periods of unexplained delay and a disturbing pattern of ignoring or failing to effectively respond to communications from counsel for the defendants. The action has only progressed as far as the pleadings and productions stage and I note that even now the plaintiff has failed to serve a sworn affidavit of documents.

114He also raised the importance of evaluating the extent of the delay to date in coming to a decision in such cases:

14 ...The initial return date of this status hearing was approximately 29 months after the defendants filed their statement of defence. The events giving rise to this action took place five years ago. This is to be contrasted with the facts in 1196158 Ontario Inc. where the status hearing judge found that the adjudication of that claim would require an examination of documents and events going back more than 15 years and the plaintiff in that action had already been afforded one indulgence at a status hearing. See 1196158 Ontario Inc. at paragraph 14. Moreover, when served with the status notice, the plaintiff did propose a reasonable plan for the completion of this action that would have seen it set down for trial by December 30, 2012. It would have been preferable for the plaintiff herself to have filed an affidavit confirming her intention to pursue this claim. However, such an affidavit is not essential. See Khan v. Sun Life Assurance, 2011 ONSC 455 at paragraph 13; affirmed, 2011 ONCA 650.

15 I am also satisfied that there will be no non-compensable prejudice to the defendants. Although there may be issues with respect to liability that will require the jury to consider oral evidence from witnesses, most of the issues in this action will likely turn on documentary evidence. It now appears from the evidence, and from the submissions of counsel, that the plaintiff's relevant and important documents are available. Her evidence has been preserved. All important witnesses are also available. The defendants had early notice of this claim and presumably were in a position to conduct their own investigation. They have preserved their documents and other evidence.... There is no evidence from the defendants of any actual prejudice, other than the general suggestion that witnesses' memories will have faded over time.

115In the present case before me, counsel for the broker concludes his factum:

42. The Defendants respectfully submit that the Plaintiff [sic] have neither explained their delay, nor established that the Defendants would suffer no prejudice if the action is allowed to proceed. The defendants therefore request an order dismissing this action, with costs payable by the Plaintiffs.

116In my view, the rationale of the quotation set out at the beginning of these reasons, and a careful weighing of the respective positions of all the litigants leads me to a different conclusion. While the plaintiffs and their counsel have clearly put at risk their entitlement to "their day in court." I am not satisfied that the factual situation in this case justifies an order denying the foundational entitlement under our system of justice for parties that believe they have suffered as a consequence of the actions of others, to have that claim impartially adjudicated.

117In this case, as in the case before Master Muir, the facts are distinguishable from other cases where a plaintiff's action was dismissed at a status hearing, such as 1196158 Ontario Inc. and Khan. The period of delay in 1196158 Ontario Inc. was significantly greater than the delay in this action. As well, the plaintiff's action in that case was dismissed at a second status hearing after the plaintiff completely ignored what the status hearing judge described as a "lifeline" given to it at the first status hearing. In Khan, it appears that the defendant established actual prejudice arising from the plaintiff's delay. That is not the situation here.

XI. CONCLUSION

118When all is said and done, I return to the approach of Justice Sharpe in the Court of Appeal in both Marché and 1196158 Ontario Inc. There, despite the fact that those dilatory plaintiffs had their actions stayed, he nevertheless tempered his emphasis on the need for efficient litigation somewhat with a reiteration of the principle that "The law will not ordinarily allow an innocent client to suffer the irrevocable loss of the right to proceed by reason of the inadvertence of his or her solicitor."

119As I have observed throughout these reasons, if the scales are balanced (or nearly balanced) the court owes them an opportunity to have their action “determined on the merits.”

120I have therefore concluded that it is appropriate, in the circumstances of this action to provide the plaintiffs with a “lifeline”. Having considered this matter at length I exercise my discretion to allow the plaintiffs’ claim to proceed. However, it is necessary that a timetable be imposed to ensure that the remaining steps take place as quickly as possible.

121Despite the objections of the defendants, the plaintiffs’ action may proceed.

XII. COSTS

122The defendants argued that they should be entitled to costs regardless of the outcome. Koepcke is authority for the proposition that an unsuccessful party may be entitled to its costs of a contested status hearing. However, I do not view the conduct of the plaintiff in this action as rising to the level that would attract a punitive costs order.

123The progress of this action, while not perfect, has been explained to the court's satisfaction and I have found no prejudice to the defendants. In my view, in the circumstances before me, it is fair and reasonable that there be no order with respect to the costs of the status hearing.

XIII. ORDER

124I therefore order that the plaintiff's action be allowed to continue on the basis of the following timetable:

(a) All parties shall have served a sworn affidavit of documents by March1, 2013:

(b) examinations for discovery shall be scheduled by March 1, 2013 to be completed by September 30, 2013;

(c) the date for any discovery motions shall be scheduled by the date of the final discovery, and be scheduled to be heard by December 15, 2013;

(d) mediation shall be scheduled by January 15, 2013; and,

(e) this action shall be set down for trial by February 7, 2014, failing which it shall be dismissed by the registrar without further notice.

125No order as to costs.

126In problems are encountered (and it is my expectation that they will not be) I will convene (through my assistant trial co-ordinator) an in-person 9:30 a.m. case conference to resolve matters. I am not otherwise case managing this action.

Master D. E. Short