COURT FILE NO.: 07-CV-326881
MOTION HEARD: October 31, 2012 and March 5, 2013
SUPERIOR COURT OF JUSTICE - ONTARIO
Re: Andrew Reid and Animation Group Ltd.
Plaintiffs
v.
Frank Avianca, Avianca and Assoc. Ltd.,
Michael Schwab, Roland Parliamant,
Tom Beyer, Roseway Corporation, Ferretina
Film Productions Ltd., the Estate of Isidore A.
Becker, deceased, M. Schwab Accounting Services
and Wizard Productions Inc.
Defendants
BEFORE: Master Thomas Hawkins
COUNSEL: Arthur C. Brown for moving plaintiffs
F (416) 362-9591
Stephen Selznick for responding defendants
Michael Schwab and M. Schwab Accounting
Services Ltd.
F (416) 642-7147
Roland Parliament, responding defendant in person,
for self and responding defendant Wizard Productions Inc.
on October 31, 2012 only
Fax (416) 463-1915 call first
No one appearing for other defendants
REASONS FOR DECISION
Nature of Motion
[1] In this action for damages and other relief for alleged breach of a contract to direct production of an animated film and to provide the facilities for such production, the plaintiffs move for an order setting aside the order of the registrar dated January 6, 2011 dismissing this action with costs for delay.
[2] The plaintiffs have discontinued this action as against the defendants Tom Beyer, Roseway Corporation and the Estate of Isidore Becker.
[3] This motion is opposed by the defendants Michael Schwab, M. Schwab Accounting Services Ltd., Roland Parliament and Wizard Productions Inc. Although the defendants Roland Parliament and Wizard Productions Inc. opposed the motion they did not deliver any material in response to this motion and did not participate in argument of the motion. As events unfolded, this motion was basically a fight between the plaintiffs and the Schwab defendants.
[4] This motion is not opposed by the defendants Frank Avianca, Avianca and Assoc. Ltd. and Ferretina Film Productions Inc. Those defendants took no position on this motion.
[5] The plaintiffs bring this motion pursuant to subrules 37.14(1)(c) and (2). These subrules provide as follows.
37.14 (1) A party or other person who,
(a) is affected by an order obtained on motion without notice;
(b) fails to appear on a motion through accident, mistake or insufficient notice; or
(c) is affected by an order of a registrar,
may move to set aside or vary the order, by a notice of motion that is served forthwith after the order comes to the person’s attention and names the first available hearing date that is at least three days after service of the notice of motion.
(2) On a motion under subrule (1), the court may set aside or vary the order on such terms as are just.
[6] The plaintiffs are parties affected by an order of the registrar.
[7] Before I set out the history of this action and discuss the issues on this motion, I wish to make two things clear. First, the references to plaintiffs’ counsel in these reasons are not references to Arthur C. Brown, who argued this motion for the plaintiffs. Secondly, references to articling student Davidson are references to Christine Davidson. Readers of these reasons should understand that my references to Ms. Davidson are not intended to be critical of her. I do not consider her to be responsible for any of the delays that have occurred in this action, including the delays in bringing this motion.
[8] The following is a history of this action with an emphasis on the events leading up to the registrar’s dismissal order of January 6, 2011 and to argument of this motion before me on October 31, 2012 and March 5, 2013.
Date
Event
February 2, 2007
Notice of Action issued
March 2, 2007
Statement of claim filed
June 8 and July 19, 2007
Michael Schwab swears two affidavits for use on a planned Rule 20 motion for summary judgment. Motion is booked for October 5 and 17, 2007. Motion is either dismissed or withdrawn.
June 12, 2007
Justice Wilkins sets July 20, 2007 as hearing date for motion by several defendants including the Avianca and Schwab defendants to stay action pending arbitration.
July 17, 2007
Plaintiffs file amended statement of claim.
July 20, 2007
Counsel for seven of the defendants argue motion to stay action.
July 24, 2007
Justice Forestell dismisses motion to stay action pending arbitration.
October 1 to November 9, 2007
Seven of the defendants file their statements of defence.
September 8, 2009
Registrar issues status notice (form 48C) because action has not been set down for trial.
December 11, 2009
Plaintiffs’ counsel attempts to file a trial record with the court registry. Registry staff reject trial record because defendants Tom Beyer and Roseway Corporation have neither filed a statement of defence nor been noted in default.
December 14, 2009
Plaintiffs’ counsel requests a status hearing.
December 17, 2009
Plaintiffs discontinue action as against defendant the estate of Isidore Becker.
January 15, 2010
At the plaintiffs’ request, Master Muir adjourns status hearing to March 15, 2010.
March 11, 2010
Andrew Reid prepares his affidavit of documents.
March 15, 2010
Master Muir conducts status hearing. He does not dismiss action. Instead he makes a timetable order and says of the plaintiffs’ counsel “There usually seems to be a pattern of waiting until the last minute to take necessary action”. Master Muir’s timetable order sets a deadline of June 30, 2010 for the plaintiffs to set this action down for trial. The plaintiffs do not meet this deadline.
June 18, 2010
Master Abrams adjourns plaintiffs’ motion to validate service of the amended statement of claim on the defendants Beyer and Roseway Corporation to enable defendant Beyer to retain counsel. Master Abrams also extends the deadline by which the plaintiffs are to set this action down for trial to December 31, 2010.
August 18, 2010
Master McAfee hears plaintiffs’ motion to validate service of the amended statement of claim on the defendants Beyer and Roseway Corporation. She validates service on them as of August 1, 2007 and extends the time for delivery of their statement of defence to September 18, 2010.
October and November, 2010
Plaintiffs’ counsel is busy with other matters.
December 17, 2010
After lengthy negotiations the plaintiffs discontinue this action as against the defendants Beyer and Roseway Corporation.
December ?, 2010
Plaintiffs’ counsel attempts to file trial record but court registry is busy and he is not reached.
December 22, 2010
Articling student Davidson attempts to file trial record but the court registry is very busy and she is not reached.
December 23, 2010
Davidson again attempts to file trial record but court registry is very busy and she has to leave before she is reached.
December 29, 2010
Davidson again attempts to file the trial record and sign a mediation certificate. Registry clerk rejects trial record for many reasons, including discrepancies between pleadings in the trial record and filings as recorded in the court’s computerized case history. Registry clerk will not let Davidson sign mediation certificate because she is not a lawyer. Davidson requisitions complete court file from off-site storage so file contents can be compared with computerized case history. Davidson feels case history entries are incorrect.
January 5, 2011
Davidson returns to court registry to file trial record. She is unable to do so because of discrepancies between pleadings in the trial record and entries respecting pleadings in the computerized case history for action. Mediation coordinator says Davidson may sign mediation certificate. She does so.
January 6, 2011
Registrar dismisses action for delay. Plaintiffs’ counsel receives a copy of the dismissal order shortly thereafter.
January 24, 2011
Plaintiffs’ counsel writes defence counsel advising that he intends to bring a motion to set aside registrar’s dismissal order and asks if they intend to oppose motion or will provide available dates for hearing of motion.
January 28, 2011
Counsel for Schwab defendants replies advising that if plaintiffs intend to proceed with their motion, he will seek instructions to oppose motion.
January 31, 2011
Counsel for Avianca and Ferretina defendants replies that he will advise his clients to oppose any motion to set aside registrar’s dismissal order and to seek costs if motion is brought.
July 27, 2011
Davidson begins working on materials for plaintiffs’ motion to set aside registrar’s dismissal order. Her work continues on and off therafter.
September 7, 2011
Davidson emails defence counsel requesting available dates for motion. Counsel for Schwab defendants responds threatening to seek costs if motion is brought.
December 19 & 21, 2011
Plaintiffs’ counsel serves and files motion record to set aside registrar’s dismissal order. Motion is returnable January 13, 2012.
January 13, 2012
Master McAfee timetables delivery of material in response to motion and cross-examinations on materials.
February 17, 2012
Plaintiffs’ counsel and Davidson are cross-examined on their affidavits. They refuse to answer some questions and undertake to answer many others.
July 3, 2012
Freda Ribiero, assistant to counsel for Schwab defendants, swears supplemental responding affidavit. Exhibits to her affidavit include letters seeking answers to undertakings and refusals on February 17, 2012 cross-examinations.
July 8 and 9, 2012
Counsel for Schwab defendants receives answers to undertakings given on February 17, 2012 cross-examinations.
July 10, 2012
Motion first comes before me. I adjourn motion to October 31, 2012 for two hours before me on terms that plaintiffs are to deliver any affidavits responding to Ribero affidavit within 30 days.
August 9, 2012
Plaintiffs’ counsel faxes his supplementary affidavit to counsel for Schwab defendants. Affidavit does not include copies of exhibits.
August 24, 2012
Plaintiffs’ counsel serves defence counsel by mail with motion record containing his complete supplementary affidavit together with exhibits.
October 30, 2012
Legal assistant to counsel for Schwab defendants swears affidavit addressing more recent events.
October 31, 2012
Argument of motion to set aside registrar’s dismissal order begins and is adjourned uncompleted.
March 5, 2013
Argument of motion is completed. I reserve judgment. Counsel for Schwab defendants tenders costs outline. I give directions for delivery of plaintiffs’ costs outline, response to Schwab defendants’ costs outline and final response from Schwab defendants. Plaintiffs’ material arrives late.
Legal Test for Setting Aside Registrar’s Dismissal Order
[9] In Scaini v. Prochnicki, 2007 ONCA 63, 2007 ONCA63, 85 O.R. (3d) 179, Goudge J.A., speaking for the Court of Appeal for Ontario, allowed an appeal from a motion judge. The motion judge had dismissed a plaintiff’s motion to set aside a registrar’s dismissal order because the plaintiff had failed to satisfy one of four criteria often used in deciding such motions. Master Dash originally laid down these four criteria in Reid v. Dow Corning Corp. (2001), 11 C.P.C. (5th) 80.
[10] At paragraphs 21 to 24 of his decision, Goudge J.A. expressed himself as follows.
21 More importantly, I do not agree that the case law reviewed in Reid, supra, yields the proposition that an appellant must satisfy each relevant criterion in order to have the registrar’s order set aside. None of the cases referred to say so expressly and several proceed on a more contextual basis. For example, in Steele v. Ottawa-Carleton (Regional Municipality), [1998] O.J. No. 3154 (Gen. Div.) Master Beaudoin, at para. 17, described the guiding principle in deciding whether to set aside a Rule 48.14 dismissal by the registrar as follows:
… Ultimately, the Court will exercise its discretion upon a consideration of the relevant factors and will attempt to balance the interests of the parties.
22 I agree with Master Beaudoin.
23 In my view, a contextual approach to this question is to be preferred to a rigid test requiring an appellant to satisfy each one of a fixed set of criteria. The latter approach is not mandated by the jurisprudence. On the other hand, the applicable rules clearly point to the former. In particular, the motion to set aside the registrar’s order dismissing the action for delay engages rule 37.14(1) (c) and (2). The latter invites the court to make the order that is just in the circumstances. A fixed formula like that applied by the motion judge is simply too inflexible to allow the court in each case to reach the just result contemplated by the rules.
24 That is not to say that there are no criteria to guide the court. Indeed I view the criteria used by the motion judge as likely to be of central importance in most cases. While there may be other relevant factors in any particular case, these will be the main ones. 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.
[11] Because Goudge J.A. said that the four Reid criteria used by the motion judge were likely to be of central importance in most cases, I will consider these four criteria, using a contextual approach respecting the facts underlying this motion while attempting to balance the interests of the parties.
[12] The first Reid criterion is as follows.
Have the plaintiffs provided a satisfactory explanation for the litigation delay?
[13] This explanation must cover all delays in the prosecution of this action from its inception on February 2, 2007 forward.
[14] A review of the history of this action which I have set out following paragraph [8] above, leads me to conclude that on balance, the plaintiffs moved this action forward in a satisfactory manner until November 9, 2007. By that time, seven of the 10 defendants had delivered their statements of defence.
[15] At that point, the plaintiffs and their counsel appear to have let this action go completely dormant until September 8, 2009 when the registrar sent out a status notice because the action had not been set down for trial or terminated in some way. This is a period of 22 months.
[16] During this time plaintiffs’ counsel did nothing to force the three remaining defendants Tom Beyer, Roseway Corporation and the Estate of Isidore Becker to deliver their statements of defence or to note them in default. Further, the plaintiffs did not prepare and serve their affidavits of documents. They did not try and set up examinations for discovery or demand that the seven defendants who had delivered their defences serve their affidavits of documents.
[17] There was much that should have happened but did not happen during these 22 months.
[18] On August 1, 2007 Betty Reid (wife of the plaintiff Andrew Reid) attempted to serve the defendant Tom Beyer with the notice of action statement of claim and amended statement of claim. Mr. Beyer recognized Ms. Reid (they knew each other) and evaded being served by running into his house and closing the back door. Ms. Reid left the notice of action, statement of claim and amended statement of claim inside Mr. Beyer’s enclosed back porch.
[19] Plaintiffs’ counsel did not follow this up with a motion to validate service of Mr. Beyer, for an order extending the time for service of the notice of action, statement of claim and amended statement of claim or for leave to serve Mr. Beyer (and his corporation, Roseway Corporation) substitutionally.
[20] It was not until June 18, 2010 (almost three years later) that plaintiffs’ counsel brought a motion before Master Abrams to validate service of process on the defendants Tom Beyer and Roseway Corporation.
[21] I have no evidence that any attempt was ever made to serve process on the defendant the Estate of Isidore Becker. The plaintiffs discontinued this action against the defendant estate on December 17, 2009.
[22] Plaintiffs’ counsel offers the following explanation for the various litigation delays in the prosecution of this action.
[23] The civil litigation practice of plaintiffs’ counsel involved cases which were not governed by the Rules of Civil Procedure. In consequence plaintiffs’ counsel was unaware that in actions governed by the Rules of Civil Procedure, the court no longer left responsibility for the pace of litigation entirely in the hands of the parties. He was unaware that there had been a change in the court’s philosophy and approach regarding delay, and did not fully appreciate the urgency and importance of proceeding within defined time limits.
[24] Next, plaintiffs’ counsel takes the position that Master Muir’s decision not to dismiss this action for delay at the March 15, 2010 status hearing in essence excuses all delays in the prosecution of this action which had occurred up to then and wipes the slate clean.
[25] I do not agree. Where, as here, there is further delay in the prosecution of an action, I may consider both the delays occurring before after that status hearing.
[26] Further, in his reasons for decision respecting the March 15, 2010 status hearing, Master Muir did not whitewash all the things which the plaintiffs’ and their counsel failed to do up to that date. Master Muir called the explanation which plaintiffs’ counsel gave for the delays “unpersuasive” and noted that there seemed “to be a pattern of waiting until the last minute to take necessary action.”
[27] These comments had little effect on plaintiffs’ counsel. In my view, his last minute approach and his attitude towards deadlines remained unchanged.
[28] Master Muir directed the plaintiffs to bring their motion to validate service or to extend the time for service on the Beyer/Roseway defendants by May 31, 2010 and to set his action down for trial by June 30, 2010.
[29] The plaintiffs filed their motion record for this motion on May 30, 2010 for hearing on June 18, 2010. Unless the master hearing that motion on June 18, 2010 validated service on the Beyer/Roseway defendants as of August 1, 2007 and refused to grant those defendants any extension in the time for delivery of their statement of defence, the plaintiffs would not be able to note those defendants in default and set this action by June 30, 2010. In my view, the master hearing that motion would be most unlikely to deny the Beyer/Roseway defendants an extension in the time for delivery of their statement of defence unless those defendants ignored the motion and failed to oppose it.
[30] This is another example of the repeated tendency of plaintiffs’ counsel to ignore deadlines and to take a last minute approach or worse to necessary action.
[31] The plaintiffs’ motion came before Master Abrams on June 18, 2010. Mr. Beyer appeared in person in opposition to the motion. Counsel for the Schwab defendants also appeared. Master Abrams adjourned the motion to August 18, 2010 to enable the Beyer/Roseway defendants to retain legal counsel. This meant that the June 30, 2010 deadline which Master Muir recently set on March 15, 2010 for the plaintiffs to set this action down for trial could not be met. Master Abrams extended the set down deadline to December 31, 2010.
[32] Plaintiffs’ counsel has included part, but not all, of Master Abrams’ endorsement on the back of the motion record as an exhibit to his affidavit supporting the present motion. He has omitted that part of her endorsement in which she extended the set down deadline to December 31, 2010. Master Abrams’ complete endorsement is an exhibit to an affidavit in the Schwab defendants’ responding motion record.
[33] On August 18, 2010 Master McAfee heard the plaintiffs’ motion. The Beyer/Roseway defendants still had not retained counsel. Plaintiffs’ counsel entered into settlement discussions with Mr. Beyer. This resulted in Master McAfee making a consent order validating service of the amended statement of claim on the Beyer/Roseway defendants as of August 1, 2007 and giving them 30 days to deliver a statement of defence.
[34] The Beyer/Roseway statement of defence was therefore due on September 18, 2010 over three months before the new set down deadline of December 31, 2010.
[35] Plaintiffs’ counsel says that as the deadline for the Beyer/Roseway defendants to deliver their statement of defence approached, he and Mr. Beyer negotiated an agreement under which the action would be “dropped against him and his company.”
[36] Plaintiffs’ counsel wanted Mr. Beyer to sign an agreement confirming the settlement with the Beyer/Roseway defendants. Mr. Beyer did not do so until December 17, 2010. Ms. Davidson filed a notice of discontinuance as against the Beyer/Roseway defendants on December 29, 2010.
[37] In his supporting affidavit plaintiffs’ counsel explains in considerable detail how commitments in matters other than this action consumed his time during the fall of 2010. It is clear from his affidavit that he was aware that on June 18, 2010 Master Abrams had set December 31, 2010 as the new deadline for setting this action down for trial.
[38] Plaintiffs’ counsel admits that he could have noted the Beyer/Roseway defendants in default at any time after their defence was due on September 18, 2010 but says that he “did not consider this an appropriate thing to do given that we were in agreement about abandoning the action against him.”
[39] I do not blame plaintiffs’ counsel for failing to do something he considered inappropriate. However it seems to me that he could have filed a notice of discontinuance against Beyer/Roseway defendants much sooner, and without acting inappropriately, once agreement was reached in September 2010 to drop this action as against them without costs. Even if the Beyer/Roseway defendants resiled from that agreement and successfully claimed the costs of the discontinued action, those costs would have been very nominal. This is a course of action which plaintiffs’ counsel did not follow.
[40] Instead plaintiffs’ counsel waited until mid-December 2010 to begin efforts to set this action down for trial. I have described those efforts and the obstacles which plaintiffs’ counsel and Ms. Davison encountered in the section of these reasons for decision setting out the history of this action.
[41] Had plaintiffs’ counsel filed a notice of discontinuance against the Beyer/Roseway defendants in mid-September 2010, he would have had three months to set this action down for trial and to deal with any problems that arose. By pursuing the course of action which plaintiff’s counsel did, he left himself about two weeks to set this action down for trial. That was insufficient time to overcome the problems which did arise.
[42] Freda Ribeiro, a legal assistance in the law firm representing the Schwab defendants points out that her law firm has never been served with a trial record for the plaintiff Andrew Reid. The following lies behind this statement. The trial record which the plaintiffs’ counsel and Ms. Davidson tried to file in December 2010 is described on its title page as “filed by the plaintiff Animation Group Ltd.” rather than being filed by both plaintiffs. I regard is as a simple oversight, easily corrected, and not a basis for dismissing this motion.
[43] In summary, plaintiffs’ counsel has explained some but not all of the delay in the prosecution of this action. His only explanation for much of this delay, including the 22 month period from November 2007 to September 2009, is that he was unaware of and did not appreciate that there had been a change in this court’s philosophy and approach regarding delay and did not fully appreciate the urgency and importance of proceeding within defined time limits. Master Muir’s March 15, 2010 comments about plaintiffs’ counsel’s procrastination should have acted as a wakeup call for plaintiffs’ counsel. They did not have that effect. The attitude of plaintiffs’ counsel did not change.
[44] I find this explanation for the litigation delay to be inadequate. I therefore conclude that the plaintiffs have failed to meet the first Reid criterion.
[45] I now turn to the second Reid criterion. That criterion (edited so as to apply to the facts before me) is as follows.
Have the plaintiffs led satisfactory evidence to explain that they always intended to set this action down for trial within the time limits set out in a court order but failed to do so through inadvertence?
[46] In my view, the main purpose of this criterion is to identify those situations in which a plaintiff or a plaintiff’s counsel, with the approval of his or her client, has deliberately flouted the Rules of Civil Procedure or orders of the court.
[47] Some of the cases describe this attitude as contumacious or stubbornly disobedient behavior. I do not regard the plaintiffs’ counsel as a stubbornly disobedient person. To me he is a chronic procrastinator. There is no evidence that the plaintiffs themselves instructed their counsel to delay the prosecution of this action.
[48] In his second supporting affidavit plaintiffs’ counsel describes his clients as having always been eager to pursue this action. There is no affidavit from the plaintiffs themselves. There is no evidence that the plaintiffs tried to prod their lawyer into action. If they did try to do so, their efforts failed.
[49] In some motions like the present one, there is evidence that a plaintiff’s lawyer missed a deadline because he or she forgot about the deadline. This is not such a case. Plaintiffs’ counsel was aware of the December 31, 2010 set down deadline but failed to meet it despite eleventh hour efforts to do so.
[50] The four Reid criteria should not be interpreted as if they were a statute. The Reid criteria are simply guidelines which should be applied in a contextual manner such that the court can reach the just result contemplated by subrule 37.14(2).
[51] Because I do not regard plaintiffs’ counsel as exhibiting deliberately disobedient behavior when he failed to meet the December 31, 2010 set down deadline in Master Abrams’ order, I decline to dismiss this motion because that failure to comply with that order was not inadvertent conduct. To me that result would not be a just one in the circumstances.
[52] I now turn to the third Reid criterion, namely the following. Has the present motion been brought promptly?
[53] In my view, this motion was not brought promptly. Plaintiffs’ counsel was aware that the registrar made a dismissal order on January 6, 2011 a few days later. There was activity in January 2011 about agreeing to a hearing date for this motion. Efforts to bring this motion then ceased.
[54] Those efforts resumed in late July 2011, when Ms. Davidson began working on this motion. That is a period of inactivity of almost six months. The motion record for this motion was not served until mid-December 2011. That was almost one year after the date of the registrar’s dismissal order. In the absence of prejudice to the defence due to delay in bringing a motion like the present one, longer periods of delay have been excused.
[55] For example, in Finlay v. Van Paasen, 2010 ONCA 204, 101 O.R. (3d) 390, in the absence of prejudice to the defence, a delay of about two years in bringing a motion like the present one was not fatal to the plaintiff.
[56] In my view, this delay is but one more example of chronic procrastination by plaintiffs’ counsel. However, because there is no evidence of actual prejudice to the defence while plaintiffs’ counsel delayed in bringing this motion, I decline to dismiss this motion on the ground that the plaintiffs have failed to meet the third Reid criterion.
[57] This brings me to the fourth Reid criterion. To my mind this criterion is the most important one. The fourth Reid criterion is as follows. Have the defendants demonstrated any significant prejudice in presenting their case at trial as a result of the plaintiffs’ delay or as a result of steps taken following the dismissal of the action?
[58] The plaintiffs have the onus of convincing me that the defendants have not demonstrated such prejudice. That said, in most motions like the present one, as between the plaintiffs and the defendants, the defendants have the better means of knowledge as to whether they have suffered prejudice.
[59] As I have said, the Schwab defendants were the only defendants to file material and present argument in response to this motion.
[60] Freda Ribeiro, a legal assistance in the law firm representing the Schwab defendants, has sworn two affidavits in response to this motion. Ms. Ribeiro deals with the subject of prejudice to the Schwab defendants in the first such affidavit. Her statements respecting prejudice are based on information from an undisclosed source and her belief in the truth of that information. As such, this part of her affidavit does not comply with subrule 39.01 (4). That subrule provides as follows.
An affidavit for use on a motion may contain statements of the deponent’s information and belief, if the source of the information and the fact of the belief are specified in the affidavit.
[61] In these circumstances, I cannot place any weight on statements of fact in her affidavit unless those statements of fact can be verified by other admissible evidence filed on this motion.
[62] Mr. Ribeiro states that the events underlying this action are alleged to have occurred in 2001 and 2001, some 11 years (now 12 years) ago. This statement is correct. It can be verified by reference to the amended statement of claim which is part of the plaintiffs’ motion record.
[63] In paragraph 45 (f) of her first affidavit Ms. Ribeiro makes the following statement.
Over the last 11 years, witnesses as well as parties to the action have dispersed, memories of witnesses will no doubt have been affected, and it will be difficult to reconstruct a full oral and documentary evidentiary record, since the Plaintiffs never conducted or initiated a discovery process.
[64] This statement does not comply with subrule 39.01(4). Apart from her statement of the length of time that has passed and her statement that the plaintiffs never conducted or initiated a discovery process, these statements of fact in her affidavit cannot be verified by reference to other evidence before me.
[65] There is no affidavit from the defendant Michael Schwab at all, and if the defendant Schwab Accounting Services had any employees other than Michael Schwab familiar with the events giving rise to this action, no affidavit from any such employee. There is no evidence from Mr. Schwab that he is now unable to remember relevant events. There is no evidence that the witnesses and parties whom Ms. Ribeiro says have dispersed and whose memories have been affected would have given evidence helpful to the Schwab defendants, or that those witnesses and parties cannot now be located despite the exercise of reasonable efforts to find them. Apart from their lack of admissibility where they cannot be verified by other evidence before me, Ms. Ribeiro’s statements of fact about prejudice to the Schwab defendants are speculative. All in all, I can give those statements no weight.
[66] During argument counsel for the Schwab defendants submitted that his clients were prejudiced by the death of Isidore Becker. The death, during a period of delay by a plaintiff in the prosecution of an action, of a material witness helpful to the defence is a form of prejudice than can justify the dismissal of a motion like the present one.
[67] I do not know when Mr. Becker died or if his evidence would have been helpful to the defence. However, since this action was commenced against Mr. Becker’s estate, I assume that Mr. Becker died before this action was commenced. He therefore died before any period of delay in the plaintiffs’ prosecution of this action. Mr. Becker’s death is therefore not a basis for dismissing this motion on the ground of prejudice to the Schwab defendants.
[68] During argument there were also submissions about missing documents. These submissions were not supported by any evidence before me. For example, there is no affidavit from Mr. Schwab that, during a period of delay in the plaintiffs’ prosecution of this action, he destroyed or discarded documents helpful to his defence in the reasonable belief that the plaintiffs had abandoned this action. I therefore reject this unsubstantiated missing documents prejudice argument.
[69] In conclusion, the plaintiffs have convinced me that the defendants have not demonstrated that they have suffered and will suffer such prejudice in presenting their case at trial or as a result of steps taken following the dismissal of this action that this motion should be dismissed.
[70] This motion is therefore granted. The registrar’s dismissal order of January 6, 2010 is set aside. The time for the plaintiffs to set this action down for trial is extended to 90 days from the final disposition of this motion. This may seem like a very generous time extension. However, my experience in other motions has been that even diligent lawyers experience considerable delays in getting formal orders issued and entered by court staff.
[71] The plaintiffs and their counsel should realize that this is a last chance order. If there is further procrastination by the plaintiffs or their counsel such that another motion for a time extension is necessary, then absent highly unusual circumstances, that motion is likely to fail.
[72] In disposing of this motion in the way that I have, I have given the plaintiffs and their counsel a significant indulgence. The plaintiffs themselves must accept a significant measure of the blame for the delays that have occurred. The plaintiffs did not put such pressure on their counsel that he prosecuted this action with reasonable diligence or, once they realized that attempts to prod their lawyer into action were not succeeding, dismiss their lawyer and retain someone who would prosecute their action diligently.
[73] The price of an indulgence is the payment of the costs of those who have sought, unsuccessfully, to prevent its being granted. See Fox v. Bourget (1987), 17 C.P.C. (2d) 94 (Ont. Dist. Ct.). I therefore award the costs of this motion, fixed at $15,000, to the Schwab defendants and order the plaintiffs to pay such costs to them within 30 days. There will be no award of costs in favour of or against the other defendants.
[74] I am reinforced in my view that the Schwab defendants should receive the costs of this motion because the record before me is replete with evidence that plaintiffs’ counsel repeatedly failed to respond to letters and phone messages from Ms. Ribeiro and others at the law firm representing the Schwab defendants. Such incivility only adds to the cost of litigation.
Master Thomas Hawkins
DATE: __________ , 2013