SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: 08-41544
DATE HEARD: April 11, 2013
RE: Celine Stevens and Kristopher O’Connell et al
BEFORE: MASTER P. E. ROGER
Counsel
Patrick Wymes, for the Plaintiff
email: patrick.wymes@gmail.com
Ph: (416) 691-0606 Fax: (416) 691-0676
Jaye Hooper, for the Defendant Kristopher O’Connell
email: hooper@williamsmcenery.com
Ph: (613) 237-0520 Fax: (613) 237-3163
Susanne Sviergula, for the Defendant Jessica Smith
email: ssviergula@cavanagh.ca
Ph: (613) 569-8558 Fax: (613) 569-8668
Debbie Orth, for the Third Party The Personal Insurance Company- took no position on this motion and did not attend
email: dorth@boslaw.ca
Ph: (613) 749-4700 Fax: (613) 749-470
E N D O R S E M E N T
The Plaintiff brings this motion to set aside the order of a registrar, dated September 4, 2012, dismissing this action for delay. This motion is brought pursuant to Rule 37.14 of the Rules of Civil Procedure.
At the outset of this motion, the Defendants sought to strike various paragraphs from the affidavits filed by the Plaintiff and the Plaintiff sought to strike various paragraphs or the entire affidavit filed by each of the Defendants. All parties raised valid arguments why certain portions of the affidavits could be considered to be in breach of our rules of civil procedure and rules of evidence.
After reviewing again the various paragraphs of the affidavits and after considering the parties’ arguments, I have decided not to strike any of the paragraphs and rather give them their appropriate weight.
I will however note that rules 4.06 and 39.01 of the Rules of Civil Procedure should be regularly reviewed by lawyers and more closely adhered to.
Indeed, affidavits should be confined to the personal knowledge of the deponent. Affidavits should not be used to argue, this should be left to oral arguments or to the factum. Affidavits should be limited to statements of facts. If information and belief information is to be provided, it should be provided in appropriate circumstances in compliance with rule 39.01 (4). The limited exception provided by that rule does not allow for absolutely everything to go in an affidavit, such as opinions or arguments. Finally, the affidavit should be limited to what is relevant.
By way of example for the Plaintiff, at paragraphs 22 and 23 of the affidavit of Ms. Champaigne, an assistant of the lawyer for the Plaintiff, she states that she is advised by Mr. Wymes and verily believes that to the knowledge of the Defendants…. These paragraphs will be given no weight.
By way of example for the Defendants, the Defendants’ affidavits contain arguments that should not be in an affidavit, such as words to the effect that because no expert reports have been provided, my lawyer has been unable to assess my exposure. The foundation evidence, if any, should properly be laid out in the affidavit but any conclusion and argument should be left for the factum or better for oral arguments. How can a client properly say this in an affidavit as either a “statement of facts” or as his or her “information and belief”? Similarly, when a client says words to the effect that I believe it was a strategic decision of the Plaintiff to wait years to conduct those examinations so that our memory would fade, these are arguments, not statements of the deponent’s information and belief.
Factual overview
The action is a personal injury action arising from a car accident on May 30, 2006. The accident involved a rear end collision. The Defendant Smith was driving the vehicle of her friend, the Defendant O’Connell on highway 417 with a G1 driver’s licence. Her insurer has raised issues of coverage and was added as a third party under the provisions of the Insurance Act. Mr. O’Connell was not present when the accident happened. The Plaintiff suffers from what appears to be chronic pain and related issues.
The statement of claim was issued on May 15, 2008. Statements of defence were delivered on November 19, 2008 and January 22, 2009. The Defendants provided their respective draft affidavit of documents by the end of January 2009. The Plaintiff provided her affidavit of documents by January 19, 2009. The Plaintiff was examined for discovery a first time on February 2, 2009. The insurer was added as a third party on February 20, 2009 and delivered its statement of defence by March 18, 2009. The Plaintiff was examined for discovery a second time on December 11, 2009.
In 2010, 2011 and 2012, little happened to move this action forward. A mediation scheduled for February 2010 did not proceed. Correspondence was provided regarding a proposed settlement conference. In 2011 a status notice was issued by the court on June 14, 2011 and this was dealt with on consent in September 2011. Discoveries were to be completed by the end of February 2012 and the action was to be set down for trial by the end of August 2012. The lawyer for the Plaintiff provided evidence that he never received from the court a copy of that consent order. All other lawyers received the order but none brought it to his attention. An offer to settle was provided by the Plaintiff in July 2011 and the Plaintiff answered some undertakings in 2012.
It is the practice of this court to fax orders to out of town counsel. As indicated, all other lawyers received a copy of the order. Nonetheless, I accept for purposes of this motion that the Plaintiff never received the order of this court dated September 28, 2011.
However, as I indicated when this motion was argued, it was incumbent upon counsel for the Plaintiff to follow-up as required to obtain a copy of that order, either by contacting the court or opposing counsel. If you file a consent order with the court and do not receive a copy of the order within a reasonable amount of time you should inquire, particularly when the action is otherwise at risk of being dismissed. Similarly, if you file a consent order for a timetable I would strongly recommend that you immediately take steps to meet the timetable on the assumption that the order will likely be made and, again, recommend that you inquire if the order is not received in a timely manner. No evidence was provided that this was done or attempted by the lawyer for the Plaintiff.
The evidence of the Plaintiff is that they were working on complying with undertakings following the discovery of their client in 2009 and that the Plaintiff was experiencing difficulties obtaining and organizing the information. Little weight is given to this as this evidence should have been provided by the Plaintiff.
However, it appears from the correspondence attached to the affidavit that the lawyer for the Plaintiff was corresponding with the lawyer for the Third Party, providing answers to undertakings. By letter dated May 10, 2012, counsel for the Third Party wrote to counsel for the Plaintiff seeking answers to undertakings. A chart was provided asking for compliance. Another similar letter was sent July 3, 2012. By letter dated August 7, 2012, the Plaintiff provided answers to undertakings to counsel for the Third Party and by letter dated August 30, 2012, counsel for the Third Party wrote to the Plaintiff to follow-up on undertakings. The Plaintiff also attached a chart which also appears to show that the Plaintiff was answering undertakings in July, August, October and December 2010 and in July 2012.
It seems strange that none of the parties were focusing on what was required to comply with the consent order filed with the court in September 2011 as under this consent order examinations for discovery of the Defendants should have been completed by the end of February 2012 and the action set down for trial by the end of August 2012. Apparently, not a single letter or communication by any of the parties attempted to schedule any discovery of the Defendants.
Administrative dismissal
The law applicable to setting aside the order of a registrar is well established. It involves an exercise of the court’s discretion to determine whether or not it is just to set aside the dismissal order considering all factors and circumstances relevant to each particular case. It’s a weighing exercise to determine the result that is just in the circumstances. The court must balance the interests of the parties and those of the public’s interest in the timely resolution of disputes with some flexibility between adherence to the rules and matters being determined on their merits. A contextual approach is to be adopted, not necessarily meeting each and every factor, with prejudice being a key consideration.
A summary of the law is provided in Vogrin et al. v. Ticknor Estate, 2012 ONSC 1640 at para. 32.
There is no question that this motion was brought promptly. This is not contested. This factor is met by the Plaintiff.
The Plaintiff has not sufficiently explained the delays. Although a perfect explanation or a perfect accounting of all delays is not required, in this case the explanations provided for the litigation delays are not sufficient. Some explanations were provided but more and better evidence should have been presented to explain the delays from February 2010 onwards. I find that this factor is not met by the Plaintiff.
Similarly, more and better evidence should have been presented to address inadvertence. However, an explanation was provided and, in the circumstances, I find that explanation somewhat convincing. I therefore find, in the circumstances of this case, that this factor is, at its worst for the Plaintiff, a neutral factor.
Although the evidence is not strong, I find the evidence somewhat convincing because of the Plaintiff’s continued efforts to answer undertakings, evidenced by the letter of August 7, 2012. This indicates that the Plaintiff had not abandoned the action and, to the contrary, desired to continue the litigation of this action. This was certainly known of the Third Party who received this letter. This corroborates to some extent the weak explanation that the order had not been received and that through inadvertence the timeline was not met. Taken all together, it is evidence that the dismissal order was made as a result of inadvertence.
Although I appreciate that the onus is on the Plaintiff, both in the action to move the action along and, as well, on this motion, I note that in this case neither of the Defendants wrote to the Plaintiff to seek that this action proceed more expeditiously. I have not been provided with letters by the Defendants voicing significant concern about how this action was proceeding prior to when this action was dismissed. The conduct of the defendants may as well be relevant. [^1]
When Plaintiff’s counsel approached counsel for the Defendants and for the Third Party in August and September 2011, counsel for the Defendants and for the Third Party sought a longer timetable than that initially proposed by the Plaintiff. The Plaintiff initially requested a timeline extending time to January 27, 2012. Counsel for both Defendants wrote to advise that because of their respective prior commitments they required a longer timetable. None indicated any difficulty to their respective client in extending the time and ultimately the parties agreed to the timetable confirmed in the consent order of this court dated September 28, 2011, which extended the time to August 31, 2012.
On the question of prejudice, the Plaintiff has established that: affidavits of documents were provided; the Plaintiff was examined; that no key witness died; and that relevant documents have been secured. I find that the evidence presented by the Plaintiff rebuts the presumption of prejudice resulting from the expired limitation period.
The Defendants have alleged prejudice in the form of fading memory and alleged unfairness as the Plaintiff was examined in 2009 and they have not yet been examined. I find this evidence to be rather vague and unconvincing.
It is not clear how worst their respective memory is since February 2012 (the time that they were to be examined for discovery under the consent order) or since August 31, 2012 (the time when the action would otherwise have been set down for trial). This is not addressed in their respective affidavit. Similarly, their respective affidavit does not compare how well they could have been examined for discovery in February 2012 versus after September 2012.
The Defendant Smith gave a statement to her insurer which she did not review before her cross-examination and listed as privileged. The other Defendant also gave a statement. Indeed, both Defendants have been on notice and involved in this action for some time and both had ample opportunities to put their recollection to paper at an early date. (Smith’s cross-examination at Q 441-443 and O’Connell at Q 83).
Fading memories are obviously a concern as this could prejudice a party. However, this is not a complex commercial case or a case involving many witnesses on key liability points.
When assessing fairness to the parties, we must carefully assess the fading memory of non-party witnesses and that of parties. The fading memory of a non-party witness might occasionally be a slightly more pressing concern to the interests of justice than that of party witnesses as parties are involved in the action usually from an early date. As a result, parties, as in this case, may occasionally have opportunities to investigate and take steps to preserve memories and witnesses from an early date while non-party witnesses might not have such opportunities.
This action involves a rear end collision between two cars. One of the Defendants, the owner of the car, was not present. He loaned the car to his friend and the circumstances of this might be relevant to the ongoing issue of coverage. His alleged failing memory is a factor that I have considered on the issue of prejudice but I consider it, in the circumstances of this case, not to be strong evidence of prejudice. Overall, this court considers the evidence of prejudice put forth by the Defendants to be rather vague and more focused on meeting the legal test. In the circumstances, I give it little weight and, in any event, find that it does not demonstrate any sufficient prejudice that should be a concern to fairness or to the interests of justice.
As a result, I find that the Plaintiff has convinced the court that the Defendants have not experienced any significant prejudice in presenting their case at trial as a result of the Plaintiff’s delay or as a result of steps taken following the dismissal of the action.
As indicated in earlier decisions, I am mindful of the importance of ensuring that our system of civil justice requires the timely disposition of actions as memories fade with time. Fairness includes the timely resolution of civil disputes with the absence of actual prejudice not always trumping the value of timeliness and efficiency, particularly where there are repeated delays. However, as explained above, I am satisfied that, in the circumstances of this case, prejudice has been sufficiently addressed by the Plaintiff and that setting aside the administrative dismissal will not impair the Defendants’ ability to have a fair trial. [^2]
It would have been preferable for the Plaintiff’s evidence to come directly from the Plaintiff and directly from counsel for the Plaintiff with someone else arguing the motion. These are important motions that must be treated as such.
A contextual approach is to be adopted by the court, weighing relevant factors to determine what is just in the circumstances. It is not necessary for the Plaintiff to satisfy all of the Reid factors and all other relevant factors.
In this case, the evidence presented by the Plaintiff is not the strongest. More and better evidence should have been presented. However, adopting a contextual approach, I am satisfied that the Plaintiff has met most of the Reid factors[^3] and that what is just in the circumstances is to allow this action to proceed on a very tight timeline.
Submissions on an acceptable litigation timetable were not made when this motion was argued. Consequently, I will not at this point make a specific order for a timetable. I will simply order the parties to schedule a case conference if they cannot agree on a timetable within the next 30 days. If a case conference is required, the parties should not wait for it to start scheduling and executing outstanding steps. For guidance, I note that this is what, subject to submissions, I might have ordered: sworn updated affidavits of documents are to be provided by all parties by May 31, 2013; any required examination for discovery of the Defendants are to be conducted by June 30, 2013; any motion on undertakings or refusals shall be served by August 31, 2013; a mediation shall be conducted as required by the rules before this action is set down for trial; and, this action shall be set down for trial by September 30, 2013.
The Plaintiff is not seeking costs for this motion. Considering the outcome of the motion, the nature of the motion, the evidence presented and the factors relevant to costs, outlined at rule 57, I find that a reasonable disposition of costs for this motion is to not award any costs payable forthwith and to order that the costs for this motion shall be to the Defendants in the cause. I will make such an order however with leave to the parties to make short written submissions on costs within the next 7 days (limited to three pages sent to my registrar by email) should any party wish for me to reconsider the issue of costs prior to the order being taken out.
Disposition
- The following is therefore ordered:
a. The Order of the registrar dated September 4, 2012, dismissing this action for delay, is set aside.
b. If the parties cannot agree on a litigation timetable within the next 30 days, a case conference shall be scheduled by the Plaintiff at the earliest available date. Pending an order extending time to set this action down for trial, to be made either by way of a consent timetable to be provided to this court for signature or, failing consent, to be made by this court at a case conference to be scheduled by the Plaintiff, this action is not to be dismissed for delay under rule 48.14 prior to September 30, 2013, after which time it shall be dismissed for delay unless another order extending time is made.
c. The costs of this motion shall be to the Defendants in the cause with leave to the parties to make short written submissions on costs within the next 7 days (limited to three pages) should any party wish for this court to reconsider the issue of costs prior to the order being finalized.
Master Pierre Roger
Date: April 16, 2013
[^1]: 1196158 Ontario Inc. v. 6274013 Canada Limited, 2012 ONCA 544 at para. 29
[^2]: 1196158 Ontario Inc. v. 6274013 Canada Limited, 2012 ONCA 544 at para. 33
[^3]: Reid v. Dow Corning Corp., 2001 O.J. no. 2365, reversed on other grounds 2002 O.J. No. 3414