COURT FILE NO.: 179/07
DATE: 2013-04-02
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DEBORA ANN BALL
Plaintiff
– and –
ALLAN DAVIS BALL and BARBARA BALL
Defendants
Siobhan Hanley, for the Plaintiff
Michael A. Polvere, for the Defendants
HEARD: March 7, 2013 at Woodstock
HEENEY R.S.J.:
[1] This is a motion to dismiss for delay.
[2] The action arises out of a claim by the plaintiff for an interest in a farm property, or damages of $250,000 in lieu thereof, based on an alleged oral agreement entered into by the defendant Allan Ball, as vendor, and the plaintiff and her then-husband Bob Ball as purchasers, in 1990.
[3] In brief, the defendant Allan Ball was the sole owner of a 100 acre farm in the Township of Zorra. The defendant Barbara Ball was Allan Ball’s wife, and had no interest in the farm property other than her entitlements under the Family Law Act.
[4] The Statement of Claim alleges that the defendants wished to retire and construct a retirement house on a lot to be severed from the farm property. They asked their son Bob Ball to return to the farm and operate it. The plaintiff alleges that on June 26, 1990, Bob and Allan Ball entered into an oral “rent to own” agreement, whereby Bob would pay a total of $250,000 for the entire farm, less the retirement lot. Alternatively, he would pay $100,000 for the farm house and 2 to 3 surrounding acres where Bob and the plaintiff proposed to live. Allan Ball would apply for severances of the retirement lot, or the farm house, or both, and depending upon which severance was obtained, they would conclude the appropriate purchase. The sum of $35,000 was advanced by Bob Ball as a deposit.
[5] Bob Ball and the plaintiff resided on the property rent-free for the next 12 years. During that time, it is alleged that they did certain improvements to the property. In 2002, the plaintiff alleges that Allan Ball repudiated the agreement by refusing to honour his oral agreement to transfer the farm. The plaintiff and Bob Ball moved off the farm property, and separated shortly thereafter.
[6] The Statement of Defence denies that there was any such agreement to transfer the property, and pleads the Statute of Frauds, R.S.O. 1990 c. S.19 as a defence to any claim to enforce an oral contract for the sale of land. It alleges that the money paid constituted rent.
[7] The plaintiff issued the Statement of Claim on October 10, 2007. The Statement of Defence was served on September 23, 2008.
[8] The time line of events since then is as follows:
On January 15, 2009, the Superior Court of Justice office in Woodstock sent a Notice of Action Dismissal to the parties, indicating that the action would be dismissed as abandoned on March 2, 2009 unless certain steps were taken;
To avoid dismissal, the then-counsel for the plaintiff, Peter Kratzmann, wrote to the court office advising that discoveries were to be completed in June 2009, and that the plaintiff expected to be in a position “to set the action down for trial by the end of September 2009”;
Examinations for discovery were completed on June 17, 2009;
The defendants completed their undertakings on September 11, 2009, and requested answers to the plaintiff’s undertakings;
On October 2, 2009, Mr. Kratzmann wrote to counsel for the defendants, indicating that the remaining undertakings would be answered within three weeks;
The Statement of Defence was amended on October 9, 2009;
Counsel for the defendants wrote to plaintiff’s counsel on October 22 and November 24, 2009, requesting compliance with her undertakings;
Counsel for the plaintiff wrote on January 10, 2010, answering some undertakings and advising that a breakdown of her unjust enrichment and quantum meruit claims would be provided within 30 days. This breakdown was never delivered;
On October 10, 2010, the defendants obtained an order from Bryant J., on consent, discharging the Certificate of Pending Litigation that had been registered against the property. The order permitted the defendants to sell the farm, provided that they retained $110,000 in the trust account of Siskinds LLP pending the final order of the court;
On January 6, 2011, the defendant Allan Ball died at the age of 82;
On November 3, 2011, Mr. Kratzmann served a Notice of Intention to Act in Person on behalf of the plaintiff;
On March 14, 2012, Ms. Hanley (the current counsel for the plaintiff) wrote to counsel for the defendants advising that she was now retained;
On September 7, 2012, the matter was spoken to at Assignment Court in Woodstock, at the instance of the Trial Coordinator, due to the age and inactivity of the matter. The plaintiff received personal notice of this court date, but failed to advise Ms. Hanley and as a result, no-one appeared for the plaintiff. Counsel for the defendants did appear, and it was adjourned to the March 2013 Assignment Court, in the expectation that the defendants would bring a motion to dismiss for delay in the interim;
On February 14, 2013, the defendants brought the present motion to dismiss for delay.
[9] It is clear that the plaintiff failed to set the action down for trial by the end of September 2009, as undertaken by her counsel in response to the notice issued by this court that the case was about to be dismissed. It is also clear that, aside from answering some (but not all) of her undertakings on January 10, 2010, the plaintiff has done nothing at all to advance the prosecution of this claim since discoveries were completed in June of 2009. Some of her key undertakings remain outstanding. The action has never been set down for trial.
[10] The action, at present, is stayed as against Allan Ball pursuant to Rule 11.01. That rule provides, in effect, that where the liability of a party is transferred to another person by reason of the death of that party, the action is stayed until an order to continue against the personal representative of the deceased party is obtained. No such order has been sought or obtained.
[11] This motion is brought pursuant to Rule 24.01, which provides that a defendant who is not in default may move to have an action dismissed for delay where the plaintiff has failed to set the action down for trial within six months after the close of proceedings. The defendants are not in default, and are entitled to bring this motion, given that the plaintiff has failed to set the action down for trial within six months after the close of pleadings.
[12] The test to be applied on such a motion is described by Master Dash in Woodheath Developments Ltd. v. Goldman (2001), 2001 28019 (ON SC), 56 O.R. (3d) 658 (Ont. S.C.J. Master), aff’d 2003 46735 (ON SCDC), 66 O.R. (3d) 731 (Div. Ct.), at para 29:
In conclusion, in order to dismiss an action for delay, unless the delay is intentional and contumelious:
(a) There must be an inordinate and inexcusable delay in the litigation for which the plaintiff or his solicitors are responsible.
(b) The delay must give rise to prejudice to the defendant, in the sense that there is a substantial risk that a fair trial of the issues will not be possible at the time that the action is likely to go to trial.
(c) Inordinate delay since the cause of action arose will give rise to a presumption of prejudice. It will be presumed that the memories of witnesses will fade over time.
(d) Undue delay following the passing of a limitation period will also give rise to a presumption of prejudice.
(e) If there is a presumption of prejudice, there is no onus on a defendant to prove actual prejudice. The plaintiff must lead satisfactory evidence to rebut the presumption of prejudice, failing which the action may be dismissed.
(f) The presumption of prejudice may be displaced by evidence that the issues in the lawsuit do not depend on the recollection of witnesses for their resolution, or that all necessary witnesses are available and they recall their testimony in detail, and that all documentary evidence has been preserved.
(g) If the presumption is rebutted, the onus shifts to the defendant to lead convincing evidence of actual prejudice.
[13] The first question to be addressed is whether there has been an inordinate and inexcusable delay. That has been defined by Crane J. in Parr v. CT Investment Management Group Inc., 2011 CarswellOnt 10124 (S.C.J.) at para. 3 as addressing “whether there is an absence of a reasonable and cogent excuse for the delay”.
[14] The plaintiff filed an affidavit sworn March 1, 2013, in response to this motion. It states that she began to be the subject of a campaign of harassment and poisoning at her workplace in the spring of 2005. She became seriously ill in April of 2006, as a result of being allegedly poisoned by her co-workers with a “cocktail” of pesticides and alcohol. This compromised her ability to pursue this litigation. Her health has been slowly improving since then, but is still not 100%.
[15] No medical reports have been filed to corroborate these bizarre statements. In any event, they appear to indicate that her alleged health problems arose prior to the commencement of this litigation on October 10, 2007. I infer that her health problems had improved by then to the point where she was able to commence this lawsuit in 2007 and to participate in discoveries in 2009. There is no evidence, other than a brief reference to a thyroid operation in February 2010, to support the contention that her health prevented her from prosecuting this lawsuit from the conclusion of discoveries to the present time.
[16] Nothing has been done to move this file forward since Ms. Hanley was retained. The plaintiff’s affidavit says that Ms. Hanley “has been unable to obtain the file from Mr. Kratzmann”, but gives no indication as to any efforts that have been made in that regard.
[17] There has been no reasonable and cogent excuse advanced for the delay, for which the plaintiff or her solicitors are clearly responsible. I find the delay to be inordinate and inexcusable.
[18] The next question is whether the delay has given rise to prejudice to the defendant, in the sense that there is a substantial risk that a fair trial of the issues will not be possible at the time that the action is likely to go to trial.
[19] There is a presumption of prejudice, in that memories are presumed to fade with time. In this case, that presumption applies with particular force. The plaintiff’s claim is based on an alleged oral agreement that was entered into in June of 1990, fully 23 years in the past. As Hockin J. stated in Farhi Holdings Corp. v. Lambton (County), 2009 CarswellOnt 8041 (Ont. S.C.J.) at para. 16:
… the ultimate aim of a trial is to ascertain the truth on the basis of reliable and admissible evidence. This becomes difficult and eventually impossible as cases age before or after they are set down for trial.
[20] The prospect of any of the involved parties having a reliable memory of events that transpired 23 years ago is extremely remote.
[21] While prejudice to the defendants is presumed to have occurred, the defendants are also able to establish actual prejudice, in two respects. To begin with, the defendant Allan Ball has died. He is alleged to have been one of the two contracting parties who entered into the oral contract in June of 1990. While he was alive, he denied doing any such thing. His viva voce evidence is crucial to the search for truth in this case, and is now unavailable.
[22] To compound the problem, the other defendant Barbara Ball has fallen ill with dementia, as confirmed by a report from her physician, Dr. Stern, dated February 19, 2013. I accept that she will be unable to testify at the trial of this action.
[23] These defendants were the parents-in-law of the plaintiff. She clearly knew that they were elderly when she commenced this litigation, and would have been aware of the risk of death or other age-related health problems that could befall them if this litigation was not prosecuted in a timely way. Notwithstanding that, she allowed this case to languish for many years.
[24] The plaintiff has provided no response to either displace the presumption of prejudice or to answer the evidence of actual prejudice suffered by the defendants. This is not a document driven case, where the relevant evidence has been preserved. It is a case that is centred on an alleged oral agreement, the resolution of which is totally dependent upon the memories of those who were involved in, or witnessed, the agreement.
[25] I am satisfied that the prejudice to the defendants is significant, and will result in a substantial risk that a fair trial of the issues will not be possible at the time that the action is likely to go to trial, which would likely be in the fall of this year or later.
[26] For these reasons, the defendants’ motion is allowed. The action is dismissed for delay. An order will go that the funds held to the credit of this action in the trust account of Siskinds LLP shall be released to the defendant Barbara Ball and to the personal representative of the defendant Allan Davis Ball, or to their assignees, forthwith.
[27] If the parties cannot agree on costs, I will accept brief written submissions from the defendants within 15 days, followed by submissions from the plaintiff within 10 days thereafter, with any reply to follow within 5 days thereafter. Otherwise, there shall be no order as to costs.
“Heeney R.S.J.”
T. A. Heeney R.S.J.
Released: April 2, 2013
COURT FILE NO.: 179/07
DATE: 2013-04-02
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DEBORA ANN BALL
Plaintiff
– and –
ALLAN DAVIS BALL and BARBARA BALL
Defendants
REASONS FOR JUDGMENT
Heeney R.S.J.
Released: April 2, 2013