COURT FILE NO.: 06-CV-317676PD1

MOTION HEARD: December 19, 2012

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: 06-CV-317676PD1

Oliver Yue v. Jim CHouzouris and BMO Nesbitt Burns Inc.

BEFORE: Master Joan Haberman

COUNSEL:
Oliver Yue, on his own behalf

Parley, A. for the defendant

ENDORSEMENT

Master Haberman:

[1] On January 31, 2012, Mr. Yue’s action was dismissed for delay pursuant to Rule 48.14. He now moves before me to set aside the registrar’s dismissal order.

[2] Having reviewed all of the evidence and relevant cases law submitted and having heard the submissions of Mr. Yue and counsel for the defendants, I have determined that Mr. Yue’s motion should be dismissed and I so order.

CHRONOLOGY

[3] My Yue commenced suit by issuing a notice of action in August 2006. His statement of claim followed on September 28 of that year.

[4] In this action, Mr. Yue claims damages of over $600,000 for negligence and breach of fiduciary duty and a further sum of $10 million for “special damages, general damages, exemplary damages and punitive damages”.

[5] Despite the enormity of the quantum sought, the pleading is a very short one, running for all of 11 paragraphs. The claim stems from Mr. Yue’s dealings with the defendant between April 5, 1999 and August 28, 2000. He claims that during that period, the bank neglected its “get to know their client” rule in so far as he was concerned and that they failed to display “absolute trustworthiness” in their dealings with him. He claims further that the defendant, Chouzouris, was engaged or planned to engage in stock price manipulation in regards to three stocks, leading Yue to believe that each of the three would “at least double in value”. Yue asserts that a diligent supervisor would have “prevented the problems stemming from the plaintiff’s inappropriate portfolio” and he claims the defendants’ conduct was, among other things, reckless, wanton and contumelious.

[6] Mr. Yue provides no particulars at all regarding when or how these alleged representations were made and he fails to state what transpired that led to his alleged loss. Though he refers to his portfolio as having been inappropriate, he fails to say why that was the case. Though he categorizes the defendants’ conduct in strong negative terms, he fails to actually state what they did or failed to do that led to his loss in a precise manner.

[7] Mr. Yue noted the defendants in default in early October 2008, and then quickly moved for judgment. The defendants moved to set aside the default. Both motions came before Brown J. on January 5, 2009 and it was agreed that the noting in default would be set aside on terms.

[8] On January 22, 2009, the defendants delivered their pleading, asserting that Yue is a knowledgeable and experienced investor, and that according to what he stated on his Client Account Agreement, his trading objective was 100% aggressive trading and he was willing to accept and comfortable with high risk. The defendants also state that Yue authorized all trading in his account and that he received monthly account statements and transaction confirmation statements. He was therefore kept apprised at all times of all activity in and the status of his account, neither of which he ever disputed. The defendants also plead and rely on the expiry of the applicable limitation period and they deny that Yue sustained any damages in regards to what they did or failed to do.

[9] Instead of replying to the statement of defence, Mr Yue moved to strike it. The motion came before Master Graham on March 24, 2009 and appears to have been based on Yue’s assertion that the bank had produced a “forged document”. His rational for reaching that conclusion was that the bank first stated that the document could not be found, but then it emerged. As Master Graham noted, though this may be the subject for discussion at trial, it was not a basis for impugning a pleading. He therefore dismissed Yue’s motion.

[10] At the same time, Mr. Yue also moved for further productions but the master held that this aspect of the relief sought was premature, in that Mr. Yue had not yet delivered his Reply. The deadline set by Brown J. earlier for service of Yue’s affidavit of documents was extended by the master to May 5, 2009.

[11] Mr. Yue delivered his Reply on April 14, 2009. This pleading runs for 35 paragraphs and in many respects was clearly not a proper Reply in that it raised new issues that should have been more properly raised in the statement of claim or added facts that were simply not relevant to the action as pleaded.

[12] In his Reply, Yue went into some detail about his inability to work from 1985 to 1999, stating that he had won a disability settlement of $600,000 in mid 1994, but that he lacked the mental or emotional competence to manage the funds himself. He says nothing about the nature of his disability or why he was left to manage his funds on his own if he lacked the capacity to do so. If the settlement was the result of a legal process, a guardian would have been appointed to assist him in that regard if his situation was as he states.

[13] In his Reply, Mr. Yue also claimed that the Client Account Agreement was forged and created after the fact. He takes issue with the manner in which brokers were compensated by the corporate defendant, suggesting the approach taken condoned their abuses. He claimed evidence was destroyed and asserted the delay in starting the action was not his fault but caused by the “ill-gotten financial benefit of a friend of Yue’s” which caused his own “gut-wrenching reluctance to pursue this action out of loyalty and anxiety on behalf of his friend’s well-being”.

[14] Mr. Yue served his affidavit of documents on May 5, 2009, as ordered.

[15] The defendants challenged portions of the Reply and sought leave to serve a supplementary affidavit of documents. The motion came before the court on July 21, 2009 and the defendants were largely successful. Portions of the Reply were struck, with leave to amend the statement of claim, instead, within 30 days. The defendants were granted leave to amend their defence and both parties were ordered to file supplementary affidavits of documents by October 16, 2009.

[16] Mr. Yue filed his amended his statement of claim on August 20, 2009. Neither party thought to provide a copy of that pleading to the court for the purpose of this motion so I am unable to comment on it. The amended defence was delivered on September 11, 2009. As a result of all of the procedural wrangling, though the action was started in mid-2006, the pleadings were not completed until more than three years later.

[17] The defendants served their supplementary affidavit of documents 10 days late, on October 26, 2009. Mr. Yue, however, did not serve his supplementary affidavit of documents until February 26, 2010, more than 4 months beyond the court-set deadline. Yet, on the return of this motion, Mr. Yue took issue with the defendants’ 10-day delay.

[18] The defendants examined Mr. Yue for discovery on March 11, 2010. At that time, Yue gave 4 undertakings, refused to answer 61 questions and took one question under advisement. A chart setting out the various categories of questions was provided to Mr. Yue on June 28, 2010. He has yet to respond to any of it. In fact, the defendants heard nothing further from Mr. Yue until 2011, after receipt of the Status Notice from the court on January 26, 2011.

[19] Mr. Yue apparently sought a status hearing and one was assigned for June 22, 2011. The master set a new timetable, requiring Yue to provide responses to undertakings by August 30, 2011 and to complete his examination of the defendants by September 15, 2011. The action was to have been set down for trial by January 30, 2012. Mr. Yue has not complied with any aspect of that order.

[20] The defendants cooperated throughout the post Status Hearing period. They advised of their availability for discoveries and agreed to Yue’s proposal that he conduct discoveries in writing. By July 2011 it was clear that the defendants were content to proceed in that manner, yet Yue neglected to provide the promised questions. A July 27, 2011 e-mail from defence counsel that made it clear that they agreed to proceed in writing was not graced with a response until September 21. At that time, Mr. Yue wrote to say he was working hard at the task. He refers to “three health problems” that he says he experienced that summer, but does not indicate what any of them involved or why they impeded his progress in terms of completing the questions.

[21] Defence counsel wrote back the following day as follows:

OK, Can you please give me a sense as to when you anticipate delivering the written questions? We would like to move the matter forward. Under the timetable, discoveries were supposed to be completed by September 15. I hope you are feeling better.

Nothing further was heard from Mr. Yue until after the action was dismissed on January 31, 2012, more than 4 months later.

THE EVIDENCE FILED

[22] Though Mr. Yue filed an affidavit to support his motion, it fails to explain the lengthy delays relate through a linear story. Instead of stating that he was incapacitated for a period of time and explaining why that was the case, Yue appears to have tried to provide what could best be described as circumstantial evidence of his incapacity. No actual medical evidence in the form of a report from a physician or a copy of his clinical notes and records are appended, however.

[23] Mr. Yue begins by discussing a prescription he was given by Dr. Ellen on August 19, 2011 for Novo-Betahistimine, which he claims was for his worsening case of vertigo. He explains that he received the prescription when the doctor made a house call, as he was unable to walk to the family doctor’s office located less than half a mile from his home. He adds that it was:

...the vertigo that mainly impeded the timely completion of the legal tasks. It seems the medication reduced the symptoms but didn’t eliminate them.

[24] A copy of the prescription is attached, but of course, it does not indicate what the drug was prescribed for, not that it was provided during a house call.

[25] In his affidavit, Mr. Yue states he will list his vertigo-related difficulties, but instead of doing so, he again relates, with considerable hyperbole, various aspects of how he was living, in an attempt to demonstrate how disabled he was.

[26] First, he speaks about the state of his apartment and he claims he was threatened with eviction because of “the clutter affecting fire prevention safety issues.” Photos are attached. Among them are photos of the kitchen area, which shows that various pots and pans and other eating utensils were used at one point. It is not clear from the evidence why it is that Mr. Yue was able to cook for himself but not wash out his pots and pans thereafter.

[27] The photos also show two television screens, many video cassettes, boxes and bags and books, scattered throughout. There could be many explanations for this clutter, many of which have nothing to do with Mr. Yue’s alleged incapacity caused by vertigo. In fact, nowhere in his evidence does Mr. Yue actually state that he was unable to clear up his living space by reason of his vertigo or any other disability or whether he had access to friends or family upon whom he might have called for help in that regard. The situation and photos are simply presented, without explanation.

[28] The second area of evidence that Mr. Yue raises as somehow demonstrative of the level of his incapacity involves a prescription he obtained for new eye glasses through Social Services. The order is valid for 30 days only after issuance. Again, instead of stating that he was given the prescription but was unable to fill it because he could not get out of the house, he talks in circles about the issue. He claims he was issued a new prescription on November 4, 2011 but it expired so he got another on December 6, 2011. He states, in his affidavit sworn in July 2012, that this one, too, expired and that when he is well enough he will choose new frames. He does not explain how he was able to get a new prescription only two days after the first expired or why did he not, instead, buy the new glasses two days earlier.

[29] Again, Mr. Yue fails to come out and state that he was too ill to leave the house. Instead he says:

The delay of obtaining such a fundamental aid may illustrate how difficult it was to manage my daily living activities in the period of, but not limited to, November-December 2011.

[30] As I stated in regards to the state of Yue’s accommodations, this behaviour is not necessarily referable to his being disabled. Further, getting out of the house to procure new glasses is a different task than sitting in an apartment and writing out questions for discovery. Illustrations as to how Yue was living do not take the place of direct evidence.

[31] Mr. Yue then lists a series of events that took place starting on October 5, 2011. He claims he was accidentally kicked in the testicles by a friend while sitting on the curb on October 5, 2011 and putting his shoes on. Thus, he was well enough in October to be outside and engaged in an activity that involved removing and replacing his shoes. As a result of his unintended assault, Mr. Yue claims he had great discomfort over 3-4 months which gradually subsided. He described the sensation as being very uncomfortable but not always painful. It is not clear why he was not able to work on the questions at all during this time. I presume no work was done towards this end as nothing was tendered to show that at least some effort was made on the endeavour as and when Yue was fit to work on it.

[32] Mr. Yue then talks about a serious cold in December 2011, which he claims incapacitated him for 3-4 weeks. It is unusual for a cold to render a person incapable of typing questions for such a lengthy period of time. At the very least, Yue should have explained why he did not keep the defendants in the loop about his problems. A one-line e-mail explaining his circumstances ought not to have been beyond him because he had a cold.

[33] Mr. Yue attaches a prescription for Complex Banglangen Tablets, written on April 23, 2012, for laryngitis secondary to a cold he had at that time.

[34] Finally, Mr. Yue attaches a receipt for Cephalex, dated June 24, 2012, which he claims was prescribed for his bedsores. Mr Yue claims that the bedsores were caused by his failure to maintain adequate personal hygiene when he had a recurrence of his sore throat in early June 2012. He claims that the sores prevented him from lying on his back or sitting. Presumably, though he does not state this to be the case, his inability to sit interfered with his ability to type. In any event, the sores were almost completely healed by July 10, 2012.

[35] Mr. Yue blames the exacerbation of his vertigo symptoms as having been brought on by:

...an unaccustomed, severe and sudden dietary change involving caffeine and processed McDonald’s food while attempting to complete legal tasks.

[36] However, based on his evidence the vertigo problems only became worse in August 2011. That does not explain why Yue did no work on the file from the date of the Status Hearing in June until August.

[37] Further, that there is no independent medical evidence to support any of what Mr. Yue states. The action was dismissed in January 2012 and the motion not heard until December 2012, leaving more than enough time to obtain something from a doctor to address these issues in a more conventional and helpful way.

[38] I note that Mr, Yue gave only 4 undertakings. The first involved providing a copy of his signature samples and the application form from when he first opened his BMO account. If he did not retain a copy, all he had to do was write to the bank to request one.

[39] The second undertaking involved explaining a deposit made in 2000. If he recalled, he simply had to explain. If he could not recall or refresh his memory, again, that was all he had to say.

[40] The third undertaking was to provide a copy of account statements for his RBC Securities account. Again, a simple letter to that bank ought to have led to a positive result.

[41] The final undertaking was to advise if Mr. Yue was prepared to produce his medical and psychiatric records as they related to his claim for damages. It does not appear that Mr. Yue has even provided his position in that regard, despite his repeated reference to his incapacity and his reliance in his Reply to having been mentally and emotionally unable to manage his disability settlement.

[42] At this point, I have no idea what disability Mr. Yue suffered from that led to his receipt of an alleged disability settlement of $600,000 or why he claims he was not emotionally or mentally capable of managing those funds. It is difficult to give Yue the benefit of the doubt when he has opted not to provide the court with a more fulsome picture of his situation.

[43] These undertakings have been outstanding for almost three years. They have yet to be answered. No explanation has been provided as to why they were not answered before the exacerbation of the vertigo in August 2011 or why they continue to remain outstanding. Mr. Yue is clearly able to work on the file again – he put together an affidavit and motion record for this event. Yet he has not dealt with either the outstanding undertakings or the outstanding discovery questions that were to have been submitted well over a year ago. No extensions of these deadlines were sought, no explanations for the delays offered during all this time until after the action was dismissed.

[44] Though he urged me to consider the merits of his action, Mr Yue provided no evidence at all that addresses the merits.

[45] Nor does Mr. Yue deal with the issue of prejudice, a key factor on these motions. There is no indication that he does not believe the defendants will suffer any if the action is permitted to continue. There is no discussion as to who the likely witnesses will be at trial and whether they can all be located and are still alive. He does not claim that all of his own documents are in place, nor assert that his memory of the events of 13-14 year ago that led to this action is still clear.

[46] On the other hand, there is no evidence from the defendants regarding actual prejudice. They rely instead on presumed prejudice, caused by the expiry of the limitation period. While Mr. Yue relies on discoverability in his Reply, there is no evidence from him to support that such a finding is likely to be made at the end of the day.

THE LAW

The Reid factors and the contextual approach

[47] The law in the area of setting aside administrative dismissal orders has been well established for the last few years as a result of several decisions from the Court of Appeal. Three of them have a direct bearing here.

[48] In Scaini v. Prochnicki (2007), 2007 ONCA 63, 85 O.R. (3d) 179, the court stated that although there are four main factors that should generally be considered when dealing with motions of this kind, the court’s approach should not be restricted to a rigid application of a test involving only the four elements set out in Reid v. Dow Corning Corp. [2001] O.J. No. 2365.

[49] Instead, a contextual approach is required, such that all relevant factors are considered and the respective interests of the parties are balanced, with the ultimate goal of arriving at a just result. As the court stated:

The key point is that the court consider and weigh all relevant factors to determine the order that is just in the circumstances of the particular case.

[50] The four factors that emerge from Reid remain the starting point for the analysis. Those factors are as follows:

a. Explanation for delay in moving the action forward;

b. Inadvertence in having missed the deadline;

c. Promptness in bringing the motion to set aside the dismissal; and

d. No prejudice to the defendant if the dismissal order is set aside.

[51] The plaintiff is not required to satisfy all four factors, as such an approach would undermine the balancing exercise that is required.

[52] Marche D’alimentation Denis Theriault Ltee v. Giant Tiger Stores Ltd. (2007), 2007 ONCA 695, 87 O.R. (3d) 660 followed Scaini. There, the Court of Appeal confirmed that a contextual approach was in order. The court also noted the impact of that delay can have on how the civil justice system is perceived:

These rules and cases rest upon an important principle: there is a strong public interest in promoting the timely resolution of disputes. The notion that justice delayed is justice denied reaches back to the mists of time. For centuries, those working with our legal system have recognized that unnecessary delay strikes against the core values and have done everything within their power to combat it.

[53] Finally, in Wellwood v. OPP et al, 2010 ONCA 386, the Court of Appeal dealt a motion to set aside a dismissal order made on the basis that the action appeared to have been abandoned, approaching the analysis on the same basis as a dismissal pursuant Rule 48.14(4).

[54] That case also reiterated what the court had already indicated regarding onus, in the context of discussing the 4 Reid factors:

...under the Ontario Rules for contemporary litigation, the party who commences the proceeding bears primary responsibility for its progress. For this reason, the initiating litigant generally suffers the consequences of a dilatory regard for the pace of litigation.

The role of prejudice and presumed prejudice

[55] The issue of prejudice – or lack thereof- has attracted considerable judicial comment in recent years.

[56] In Wellwood, supra, the Court of Appeal held that, aside from the ordinary principles regarding onus, prejudice would be presumed where an action, though started within a limitation period, was dismissed after the limitation period had expired.

[57] The cases that deal with the presumption of prejudice do not apply the presumption with equal impact across the board. Instead, they examine the issue in the context of the facts of the case. In Clairmonte v. Canadian Imperial Bank of Commerce, 1970 470 (ON CA), [1970] 3 OR, 97, an earlier decision of the Court of Appeal relied on in Wellwood, the court held that the weight of the presumption varied with the length of the delay, as well as the nature of the action:

The force of the presumption...will depend on the time which has passed after the expiration of a limitation period as well as the nature of the action. While the presumptions will speak as a barely audible caution immediately after the limitation period has expired, it may command increasing imperativeness on the passage of a substantial time, depending on the cause of action.

[58] Accordingly, the result of the presumption of prejudice will not necessarily be uniform, but instead, will vary from case to case based on the two factors set out above: length of delay and nature of the action.

[59] The presumption of prejudice, in large part, flows from the recognition that the passage of time can impact on the availability and memories of necessary witnesses, as well as on the accessibility of relevant documents. These concerns are relevant, in the context of achieving fairness at trial. An action that has been administratively dismissed should not be reinstated if doing so would create an imbalance, such that a defendant can no longer expect a fair trial. As a result, both the length of delay and the nature of the action have a role to play on how the presumption is applied.

[60] When the presumption of prejudice applies, the moving party has a positive onus to rebut it with evidence submitted to the court in proper form. The evidence should include reference to a number of elements, including, where applicable:

o whether all or most relevant documents have already been produced;

o the fact that relevant documents not yet produced have been sought and are, or likely, remain available;

o alternatively, that the case is not a “document case” so there is no need to be concerned about retention schedules;

o that key witnesses have been identified, are alive, and have been or can easily be located or that their evidence has been preserved in a manner which renders it usable at trial in a way that will not prejudice the defence;

o that these witnesses gave statements, evidence in some other form, or there are other documents they can refer to in order to refresh their memories in the event that a considerable period of time has passed since the events in issue;

o alternatively, the case will not turn on viva voce evidence but rather, on the documents, which are, for the most part, available;

o where the case involves a claim for personal injuries, the medical evidence describing and tracking the progress of pre-existing injuries/conditions is available, along with all medical evidence pertaining to the progress and possible recovery from the injuries complained of in the action;

o again, in claims arising from personal injuries, that the documents required to allow a defendant to explore a loss of income claimed by the plaintiff have been produced or remain accessible.

[61] If the moving party fails to make any attempt to rebut a presumption of prejudice where it applies, the defendant is not required to lead any evidence of actual prejudice. If they do so, however, it will serve to further buttress the defence position. It is important to bear in mind that prejudice, though one of the 4 Reid factors to be balanced, has been recognized as a “key consideration” (see Marche d’alimentation, supra), so that its presence could swing the balance against setting aside a dismissal order in appropriate cases.

ANALYSIS and CONCLUSION

[62] This action is now in excess of 7 years old and it arises from events that took place in 1999-2000. The only evidence provided by Mr. Yue to explain the first two factors in the Reid test (explanation for delay in moving the action forward; inadvertence in having missed the deadline) is his own, supported by prescriptions and photographs that could be referable to any number of explanations.

[63] In fact, Mr. Yue does not really come out and say why he was not able to sit down and comply with 4 simple undertakings that have been outstanding for about three years. He also does not explain what he had to do but was unable to do throughout the time that he was supposed to be working on written discovery questions. Though he claims that he had colds, was subjected to an unusual unintentional assault, and that he had an exacerbation of his vertigo, there are gaps between these events during which some of this work could have been completed, yet there is no evidence that he has even started the tasks at hand.

[64] There was also considerable delay at the front end of the action. It took three years before pleadings closed in the action because of how Mr. Yue approached the litigation. Noting a bank in default and moving for default judgement is never a wise move when it is done immediately after the deadline to defend has passed. There is generally a good reason why a solvent corporate institution fails to deliver a defence and it makes more sense to explore that reason before incurring the costs and adding delay by noting default.

[65] Similarly challenging a defence on the basis of an alleged forged document wasted further time, while filing a reply which clearly did not comply with the Rules served to stall the action further. All of these delays lay at the feet of Mr. Yue, himself.

[66] I note that Mr. Yue presented well in court. He was well groomed, stood upright and spoke clearly and in an articulate and, at times, eloquent manner. In fact, he appeared to be quite fascinated by the process. There was no apparent indication of any cognitive impairment or any lack of understanding on his part. He made his submissions and answered my questions politely and responsively. He claims to have graduated as a medical doctor, and if that is the case, he can certainly read the Rules and figure out what is expected of him. He knows enough about the process to be able to bring motions and he is aware that his evidence must be put before the court in the form of a sworn affidavit.

[67] Thus, while I am prepared to make some allowances for the fact that Mr. Yue’s poor judgment in the early days of the case may have been caused by the fact that he is not represented, he is a litigant that appears to possess far more tools than most who represent themselves when it comes to understanding the process and coming to grips with it.

[68] In any event, it is not fair to defendants when Rules are bent time and time again to accommodate a party who does not have counsel. Mr. Yue has played his cards close to the chest, so there is nothing before the court to justify according him special treatment. An allegation by him to the effect that he is disabled is not evidence of that fact. I therefore find that the evidence he has filed regarding the delay and his explanation for it are far from adequate in the absence of proof that this is an exceptional case.

[69] The motion was initially returnable in July 18, 2012, or 6 months of the dismissal and adjourned until December. Though not ideal, I am not overly troubled by these facts. In view of how are lists are running at present, this is no longer a long delay.

[70] That brings me to the issue of prejudice. The limitation period expired well before the action was dismissed and Mr. Yue has not even asserted that there would be no prejudice if the action were to be reinstated. I must therefore consider how to apply a presumption of prejudice in the context of the delay and the nature of the action.

[71] As noted the action is based on facts that took place 13-14 years ago. Though actions of this kind are usually paper-driven, Mr. Yue claims that some documents were forged, which raises a separate area of evidence dealing with the context in which documents were presented and signed. This means that the individual recollections of all involved will now be far more important than they would be in the ordinary case involving investments that went sour. Mr. Yue says nothing about this in his evidence. The defendants are not required to do so in view of the application of the presumption.

[72] Prejudice is a key factor and I am prepared to presume that it applies here.

[73] There is a further factor to consider and that is the cooperative approach taken by the defendants throughout. They only moved against those parts of the Reply that had to be removed from the pleading and they sought costs of only $500 when their motion succeeded. They agreed to a timetable at a status hearing rather than challenging Mr. Yue’s delay at that time, and agreed to allow him to conduct his discovery of the defendants in writing. They even reminded him that the time frame within which to do so was about to expire.

[74] Finally, I remain unconvinced that Mr. Yue is serious about moving forward with this action even now. He has failed to deal with any of the outstanding issues to demonstrate his good faith and made no proposal to accomplish what is left to do within a certain time frame, aside from saying that he wants to pursue the matter vigorously now.

[75] Though I do accept that vertigo can be disabling at times for certain people, I have no independent evidence before me here to suggest that Mr. Yue was plagued by this disability during the lengthy relevant time frame. Colds and bedsores are not adequate justifications for failing to comply with court orders or bringing the problems to the attention of counsel for the defendants. There is nothing in these materials to give me any level of comfort that if the action was allowed to proceed, we would not see more of the same. In fact, the nature and quantity of excuses provided by Yue for his dilatory behaviour, suggests just the opposite. This, too, is something I must consider.

[76] As I note above, I was unable to deal with merits of the case as Mr. Yue asked, as he filed no evidence regarding the merits and, most importantly, the discoverability issue he raised in response to the limitations defence.. He did, however, file a copy of his initial claim, in which he sought a damage figure in excess of $10 million. This is worrying, in view of his failure to actually explain how he came to suffer these damages.

[77] On the whole, taking into account all relevant factors and the evidence filed, I am not convinced that this is an action that should be reinstated. The motion is therefore dismissed. If the parties are unable to agree at to costs, I can be spoken to within 30 days.

_(original signed) __

Master Joan M. Haberman

Released: January 9, 2013