SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-09-379307
MOTION HEARD: JANUARY 11, 2013

RE:

Victor Opara

v.

Bell Canada

BEFORE: MASTER R.A. MUIR

COUNSEL: Victor Opara in person Lisa C. Alleyne for the defendant

REASONS FOR DECISION

[1] The plaintiff brings this motion pursuant to Rule 37.14 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) for an order setting aside the order of the registrar dated July 4, 2012 dismissing this action for delay. This action was dismissed by the registrar due to the failure on the part of the plaintiff to have this action set down for trial within the time limits prescribed by Master Glustein’s order of December 13, 2011. The defendant opposes the granting of the relief requested on this motion.

NATURE AND PROGRESS OF THE ACTION

[2] The plaintiff is a lawyer. He brings this action for damages as a result of what he alleges was the defendant’s improper suspension or cancellation of certain business telephone services. The plaintiff alleges that the defendant’s actions have resulted in business losses and other damages.

[3] This action was commenced on May 22, 2009. The statement of claim was served shortly thereafter. A statement of defence was served on or about June 26, 2009. The plaintiff served a reply on or about July 6, 2009. Between July 2009 and July 2010, the plaintiff made several attempts to move this matter forward. The plaintiff served his affidavit of documents and requested that the defendant do the same and that examinations for discovery be scheduled. He was frustrated by the failure of the defendant to respond to his various letters and communications. None of this delay can be attributed to the plaintiff.

[4] Discoveries were eventually held in October 2010 and February 2011. An unexplained period of delay takes place between February 2011 and May 2012. There is no evidence that anything was done to advance the litigation during that time period other than obtaining a status hearing order from Master Glustein on consent which, among other things, extended the set down date under Rule 48.14 to June 29, 2012.

[5] In late May 2012 the plaintiff purported to answer his undertakings. However, those answers were provided almost two months after the deadline in Master Glustein’s order.

[6] The plaintiff waited until the same time to attempt to make arrangements with the defendant for the scheduling of a mediation session despite the fact that Master Glustein’s order required that mediation was to take place by May 31, 2012.

[7] The plaintiff also realized that a further extension of the set down deadline would be required and sought the consent of the defendant to such an order. The defendant provided its consent but unfortunately the plaintiff did not follow the proper procedure to obtain such an extension and this action was dismissed by the registrar on July 4, 2012.

[8] The dismissal came to the attention of the plaintiff at the end of August 2012 and this motion was originally scheduled for October 12, 2012, some six weeks later. It was then adjourned by Master Dash and was ultimately heard by me on January 11, 2013.

APPLICABLE LAW AND ANALYSIS

[9] The law relating to motions of this nature is summarized in my decision in 744142 Ontario Ltd. v. Ticknor Estate, 2012 ONSC 1640 (Master). At paragraph 32 of that decision I set out the applicable principles as follows:[^1]

32. In the last five years, the law relating to setting aside registrar’s dismissal orders has been the subject of seven decisions of the Court of Appeal for Ontario. Although each of those decisions brings a slightly different approach to the decision making process, the general approach first set out by the Court of Appeal in Scaini has been followed consistently. The principles that emerge from those decisions can be summarized as follows:

● the court must consider and weigh all relevant factors, including the four Reid factors which are likely to be of central importance in most cases;

● the Reid factors, as cited by the Court of Appeal in Giant Tiger, are as follows:

(1) Explanation of the Litigation Delay: The plaintiff must adequately explain the delay in the progress of the litigation from the institution of the action until the deadline for setting the action down for trial as set out in the status notice. She must satisfy the court that steps were being taken to advance the litigation toward trial, or if such steps were not taken to explain why.... If either the solicitor or the client made a deliberate decision not to advance the litigation toward trial then the motion to set aside the dismissal will fail.

(2) Inadvertence in Missing the Deadline: The plaintiff or her solicitor must lead satisfactory evidence to explain that they always intended to set the action down within the time limit set out in the status notice, or request a status hearing, but failed to do so through inadvertence. In other words the penultimate dismissal order was made as a result of inadvertence.

(3) The Motion is Brought Promptly: The plaintiff must demonstrate that she moved forthwith to set aside the dismissal order as soon as the order came to her attention.

(4) No Prejudice to the Defendant: The plaintiff must convince the court that the defendants have not demonstrated 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;

● a plaintiff need not satisfy all four of the Reid factors but rather a contextual approach is required;

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

● all factors are important but prejudice is the key consideration;

● prejudice to a defendant may be presumed, particularly if a lengthy period of time has passed since the order was made or a limitation period has expired, in which case the plaintiff must lead evidence to rebut the presumption;

● once a plaintiff has rebutted the presumption of prejudice, the onus shifts to the defendant to establish actual prejudice;

● prejudice to a defendant is not prejudice inherent in facing an action in the first place but prejudice in reviving the action after it has been dismissed as a result of the plaintiff’s delay or as a result of steps taken following the dismissal of the action;

● the party who commences the litigation bears the primary responsibility under the Rules for the progress of the action;

● in weighing the relevant factors, the court should not ordinarily engage in speculation concerning the rights of action a plaintiff may have against his or her lawyer but it may be a factor in certain circumstances, particularly where a lawyer’s conduct has been deliberate. The primary focus should be on the rights of the litigants and not with the conduct of their counsel.

[Footnotes Omitted]

[10] I am also mindful of the observations of the Court of Appeal in its decision in Hamilton (City). At paragraphs 20-22 of that decision Justice Laskin notes as follows:

20 Two principles of our civil justice system and our Rules of Civil Procedure come into play. The first, reflected in rule 1.04(1), is that civil actions should be decided on their merits. As the motion judge said at para. 31 of his reasons: "the court's bias is in favour of deciding matters on their merits rather than terminating rights on procedural grounds."

21 The second principle, reflected in the various time limits mandated by our rules, and indeed, as noted by the motion judge, in the provision for a status notice and hearing, is that civil actions should be resolved within a reasonable timeframe. In Marché, at para. 25, my colleague Sharpe J.A. wrote about the strong public interest in promoting the timely resolution of disputes. 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.

22 On motions to set aside an order dismissing an action for delay, invariably there is tension between these two principles.

[11] Finally, I note that the Court of Appeal has recently emphasized the principle that these motions involve an exercise of the court’s discretion. The court must weigh all relevant considerations to determine the result that is just in the circumstances. See Habib v. Mucaj, 2012 ONCA 880 at paragraph 6.

[12] These are the factors and principles I have considered and applied in determining the issues on this motion. My analysis leads me to the conclusion that it is in the interest of justice that the dismissal order of the registrar be set aside.

MOTION BROUGHT PROMPTLY

[13] Rule 37.14(1) requires that motions of this nature be brought by way of a notice of motion served forthwith after the order in question comes to the attention of the person affected. The applicable authorities also require these motions to be brought promptly. I accept that the plaintiff did not learn of the dismissal order until late August 2012 and this motion was brought just a few weeks later. I am satisfied that this motion was brought promptly having regard to the nature of the motion and the availability of counsel and the court.

[14] The plaintiff has therefore satisfied this element of the Reid test.

LITIGATION DELAY

[15] I am not, however, satisfied that the plaintiff has satisfactorily explained the delay encountered with this action to date. There is simply no explanation for the delay between February 2011 and May 2012. Moreover, there is no explanation for why the plaintiff failed to comply, or attempt to comply, with Master Glustein’s status hearing order with respect to answers to undertakings and scheduling a mediation session in a timely manner. This is a significant and unexplained gap. As the Court of Appeal has stated, the primary responsibility for moving an action forward rests with the plaintiff.

[16] I am not satisfied that this element of the Reid test has been met by the plaintiff.

INADVERTENCE

[17] The plaintiff has established that his failure to set this action down for trial in a timely manner was a result of his inadvertence and not an intentional decision to abandon the action. The plaintiff was well aware of the pending dismissal date at the end of June 2012 and took steps to secure the defendant’s consent to an extension of time. The plaintiff then made a written request of the registrar for the extension of time. It was only as a result of following the incorrect procedure that the extension order was not granted. In my view, this error was clearly inadvertent.

[18] I am therefore satisfied that the failure to set this action down for trial in a timely manner was inadvertent and that this element of the Reid test has also been met.

PREJUDICE

[19] I am satisfied that the plaintiff has met the onus placed upon him to rebut the presumption of prejudice. Where a limitation period has passed, as it appears to have here, a presumption of prejudice arises and the onus rests with the plaintiff to rebut that presumption. The strength of this presumptive prejudice increases with the passage of time. See Wellwood at paragraph 60.

[20] A plaintiff can overcome the presumption of prejudice by leading evidence that all relevant documents have been preserved, that key witnesses are available or that certain aspects of the claim are not in issue. See Wellwood at paragraph 62. I have concluded that the plaintiff has done so.

[21] In my view, the presumption of prejudice, on the facts of this action, is not particularly strong. This is not a complex claim. The events giving rise to this claim took place in 2008. A review of the pleadings leads me to conclude that the issues will largely be determined on the basis of an examination of documentary evidence. The parties have preserved their documents and served their affidavits of documents. The plaintiff and the defendant have both been examined for discovery. The defendant has not alleged any actual prejudice. It can certainly be inferred that the defendant was not particularly concerned about prejudice in June 2012 as it was prepared to agree to a further extension of the set down date at that time.

[22] I am therefore satisfied that the plaintiff has rebutted the presumption of prejudice and has satisfied this element of the Reid test.

CONCLUSION

[23] When deciding motions of this nature, the court is to adopt a contextual approach in which it weighs all relevant considerations to determine the result that is just in the circumstances. The court must, of course, balance the strong public and private interest in promoting the timely resolution of disputes with the entitlement of a plaintiff to have his claim decided on its merits.

[24] When applying the test set out above, it is not necessary for the moving party to rigidly satisfy all of the Reid factors and any other relevant factors. Of the factors the court is to consider on motions such as this, prejudice is the key consideration. In my view, the plaintiff has satisfied most of the relevant factors, including the key factor of prejudice. I have found that the failure to meet the set down deadline in Master Glustein’s order was inadvertent and that this motion was brought in a timely manner. Although I have found that the plaintiff has failed to provide an adequate explanation for a significant period of delay, I am nevertheless satisfied on the basis of a contextual analysis that it is just that the order of the registrar of July 4, 2012 be set aside.

COSTS

[25] The plaintiff seeks his partial indemnity costs in the amount of $4,000.00. The defendant argues that there should be no order for costs. In my view, this is not an appropriate case for costs. The plaintiff is seeking an indulgence from the court. He failed to follow the proper procedure to obtain an extension of the set down deadline in Master Glustein’s order. He had to prepare his motion materials in any event in order to satisfy the court that the order of the registrar should be set aside. Finally, the plaintiff failed to provide an adequate explanation for a significant period of delay. The ultimate responsibility to advance this claim rests with the plaintiff. In my view, it is fair and reasonable that there be no order with respect to the costs of this motion.

ORDER

[26] I therefore order as follows:

(a) the dismissal order of the registrar dated July 4, 2012 is hereby set aside;

(b) mediation shall take place by March 11, 2013;

(c) this action shall be set down for trial by April 30, 2013, failing which it shall be dismissed by the registrar without further notice; and,

(d) there shall be no order with respect to the costs of this motion.

Master R.A. Muir

DATE: January 11, 2013

[^1]: The applicable principles are derived from seven decisions of the Court of Appeal for Ontario released over the last several years: Scaini v. Prochnicki, 2007 ONCA 63, [2007] O.J. No. 299 (C.A.); Marché D’Alimentation Denis Thériault Lteé v. Giant Tiger Stores Ltd., 2007 ONCA 695, [2007] O.J. No. 3872 (C.A.); Finlay v. Van Paassen, 2010 ONCA 204, [2010] O.J. No. 1097 (C.A.); Wellwood v. Ontario (Provincial Police), 2010 ONCA 386, [2010] O.J. No. 2225 (C.A.); Hamilton (City) v. Svedas Koyanagi Architects Inc., 2010 ONCA 887, [2010] O.J. No. 5572 (C.A.); Machacek v. Ontario Cycling Assn., 2011 ONCA 410, [2011] O.J. No. 2379 (C.A.); Aguas v. Rivard Estate, 2011 ONCA 494, [2011] O.J. No. 3108 (C.A.).