ONTARIO

SUPERIOR COURT OF JUSTICE

NEWMARKET COURT FILE NO.: CV-07-082959-00

DATE: 20130724

BETWEEN:

ICILDA TATE and NELVIN TATE SNR

Plaintiffs

– and –

LAURA PHILP, also known as LAURA PHELP, RON McCOWAN, GRANT ANTHONY, WILLIAM ASH, 1485902 ONTARIO LIMITED, ROYAL LePAGE KINGSBURY REALTY INC. AND CENTRURY 21 KINGSBURY REAL ESTATE LTD.

Defendants

D. Fulton, for the Plaintiffs

J. Rubin, for the Defendants, Laura Philp, A.KA. Laura Phelp, Ron McCowan

D.M. Golden and T. Tulloch for the Defendant, William Ash

A.M. Leckey, for the Defendants, Grant Anthony, Royal LePage Kingsbury Realty Inc. and Century 21 Kingsbury Real Estate Ltd.

HEARD: June 11, 2013 at Newmarket and July 19, 2013 at Barrie

REASONS FOR DECISION

MULLIGAN J.:

[1] On January 24, 2013, the Registrar sent out a Status Notice to all parties in this action. On February 6, 2013, the plaintiffs issued a Status Hearing Request Form. The parties have not agreed on a timetable. As a result, this hearing proceeded as an argued matter. The plaintiffs submit that they have an explanation for the delay, justifying the continuation of this action and there is no prejudice to the defendants.

[2] After the original hearing the defendant William Ash brought a motion to seek leave to introduce the affidavit of Sherri Sparks. That affidavit contained as an exhibit a letter from counsel for the plaintiff dated June 12, 2013, one day after the hearing. Attached to the letter was a doctor’s note from Credit Valley Hospital dated June 6, 2013 indicating that Mr. Tate is bedridden, non-verbal and only minimally responsive. This condition appears to have been the case for almost a year.

[3] The plaintiffs then filed an affidavit in response indicating why the letter containing the medical note was not sent to opposing counsel until June 26, 2013. The said affidavit sworn by Georgina Cairns, law clerk to the plaintiff’s firm, further sets out at paragraph 10:

Attached and marked as exhibit B is an email letter from Mrs. Tate wherein she advised that Mr. Tate will not be available for discovery since he was unable to communicate at that time. She also told me that Nelvin was never involved in the transactions that were the subject matter of the litigation and he had no knowledge of the matters in issue even when he was well.

[4] This action rose out of a purchase by the plaintiffs of a retirement home from the defendants, Laura Philp and Ron McCowan (“the vendor defendants”). The plaintiffs further claim against the defendants, Grant Anthony, a real estate agent and Royal LePage Kingsbury Realty Inc. (“the realtor defendants”). The plaintiffs also claim against their former solicitor, William Ash (“the solicitor”). The collective defendants take the position that the action should be dismissed for delay based on the plaintiffs’ failure to show cause why the action should not be dismissed in the circumstances of this case.

[5] The following background about steps taken in this action will provide context for the discussion that follows.

[6] The plaintiffs purchased a nursing home on May 28, 2005. They commenced this action by Statement of Claim, February 15, 2007. The realtor defendants were served in March of 2007, and their Statement of Defence was served on July 23, 2007. The plaintiffs brought a motion to regularize service in October of 2007, but that motion was adjourned sine die. The realtor defendants served their Affidavit of Documents in February of 2008, having been preceded by a Draft Affidavit of Documents in August of 2007. The plaintiffs served a Notice of Change of Solicitors in October of 2008. After numerous adjournments and a cross-examination of one of the plaintiffs by the realtor defendants, the motion was heard October 29, 2010.

[7] In March of 2011, the plaintiffs amended their claim. In early 2011, the vendor defendants and the solicitor defendant served their Statements of Defence. In March of 2012, the plaintiffs delivered an Affidavit of Documents. The solicitor defendant served a Draft Affidavit of Documents in May of 2012, and the realtor defendants served a Supplementary Affidavit of Documents in June of 2012.

[8] The record indicates that numerous attempts were made to arrange examinations for discovery on a co-operative basis between all counsel. Many dates were booked and cancelled. On one occasion, counsel for the vendor defendants was unable to attend due to health reasons. However, on numerous other occasions, counsel for the plaintiffs was unable to attend numerous booked dates for various reasons, including personal family matters, other meetings, a commitment at the Court of Appeal, and plaintiffs’/counsel’s requirement to attend at a public inquiry.

[9] After the Status Hearing Notice was issued by the court, the parties continued to attempt to arrange a conference call, but efforts were frustrated due to the plaintiffs’ counsel’s other commitments.

[10] In addition, the parties continued to attempt to arrange examinations for discovery of the plaintiffs. Dates were set for May 6 and 7, 2013. However, in what can only be described as a comedy of errors, this attempt at examinations for discovery also failed. Plaintiffs’ counsel advised that Mr. Tate would not be available due to medical reasons, and that counsel would not be available on one of the two dates. A series of e-mails went back and forth, but the upshot was that the defendants’ counsel thought the discoveries were cancelled due to the unavailability of Mr. Tate, and plaintiffs’ counsel not being available on one of the days. Based on plaintiffs’ counsel’s understanding of the e-mail exchanges, he attended on the second day proposed for discoveries with his client, Mrs. Tate, but no other parties attended by the time the examination was aborted.

[11] Plaintiffs’ counsel on this motion, Derrick Fulton made submissions on behalf of the plaintiffs at the Status Hearing. He submits that he is now the lawyer within the firm responsible for this matter for the plaintiffs, and previous counsel within the firm has had numerous obligations to attend a public inquiry on short notice, which resulted in numerous aborted conference calls or examinations.

[12] As part of its Status Hearing Record, the plaintiffs have submitted a draft timetable to complete the remaining steps in the litigation, including examinations for discovery, answers to undertakings, and delivery of expert reports. The plaintiffs further submit that the action should be set down for trial no more than twelve months from the date of the Status Hearing.

ANALYSIS

[13] A consideration of this matter requires a consideration of Rule 48.14(13) of the Rules of Civil Procedure, as well as a consideration of judicial authorities, including two recent Court of Appeal decisions upholding motion judges’ rulings dismissing actions at a Status Hearing.

[14] Rule 48.14(13) provides as follows:

(13) At the status hearing, the plaintiff shall show cause why the action should not be dismissed for delay and,

(a) If the presiding judge or case management master is satisfied that the action should proceed, the judge or case management master may,

(i) Set time periods for the completion of the remaining steps necessary to have the action placed on or restored to a trial list and order that it be placed on or restored to a trial list within a specified time,

(ii) Adjourn the status hearing to a specified date on such terms as are just, or

(iii) If the action is an action to which Rule 77 may apply under 77.02, assign the action for case management under that Rule, subject to the direction of the regional senior judge,

(iv) Make such other order as is just; or

(b) If the presiding judge or case management master is not satisfied that the action should proceed, the judge or case management master may dismiss the action for delay.

[15] As the Court of Appeal noted in 1196158 Ontario Inc. v. 6274013 Canada Limited, [2012] ONCA 544, at para. 16, “It is common ground that a decision to dismiss an action for delay at a status hearing is discretionary ...” The Court of Appeal made reference to the test to be applied in the exercise of judicial discretion in Faris v. Eftimovski, [2013] ONCA 360. As Tulloch J.A. stated at para. 11:

In her decision, the status hearing judge set out the two-part conjunctive test to determine whether the appellant’s action should be dismissed for delay. She quoted from Savundranayagam v. Sun Life Assurance Co. of Canada (2008), 2008 54788 (ON SCDC), 67 C.C.L.I. (4th) 241 (Ont. Div. Ct.):

[T]he onus is on the plaintiff to show why the action should not be dismissed for delay at the status hearing.

The plaintiff must explain the delay so as to satisfy the court that the action should proceed; and the plaintiff must satisfy the court that there would be no prejudice to the defendants.

[16] The plaintiffs’ position is that they have adequately explained the delay and this matter should not be dismissed at this first status hearing. They also submit that there is no prejudice to the defendants that cannot be satisfied by a costs order against it. Mrs. Tate is available for examinations for discovery. The supplementary affidavit and medical note make it clear that Mr. Tate may not ever be available for a discovery, however, the assumed prejudice of his unavailability is answered by at least with respect to this hearing by the suggestion that Mr. Tate had no knowledge of the transaction and Mrs. Tate is available for discovery.

[17] The position of the common defendants is that there is no explanation for the delay, there is real prejudice to the defendants because of Mr. Tate’s unavailability and therefore, the matter should be dismissed.

[18] Prior to the Court of Appeal’s guidance in Faris, supra, and 1196158, supra, the Divisional Court in Donskoy v. Toronto Transit Commission, 2008 47020 (ON SCDC), [2008] O.J. No. 3634, refused to disturb the Master’s discretionary order dismissing an action for unreasonable delay. However, as J.M. Wilson J. noted at para. 16:

I may have made a “guillotine” order requiring particulars to be provided within a strictly limited period or the action would be dismissed, as this was the first time the matter came before the court on a contested basis. In other circumstances, it may well be a reversible error to dismiss an action at a status hearing for which there are no outstanding orders, which has come before the court for the first time. However, in this case, there was no credible explanation for the delay and no plan proposed by the plaintiff to move the case forward. This was a clear case of unreasonable delay.

[19] In 1196158, supra, the Court of Appeal upheld the motion judge’s decision to dismiss the action. However, the Court noted that the motion judge’s decision was not the result of a first time status hearing. As the Court noted at para. 25:

That order, made despite over three years of delay, was properly described by the September 2011 status hearing judge as a “lifeline” that allowed the plaintiff to proceed on the basis of the timetable ordered. The plaintiff ignored the lifeline that it had been given and failed to respond to the timetable that had been set.

[20] On the facts before it, the Court of Appeal found that the plaintiffs had taken no meaningful steps for eighteen months after the initial status hearing order.

[21] The Court of Appeal considered the decision of the motions judge in Faris v. Eftimovski, supra. An action was commenced in 2007. There was considerable delay or gaps in activity on the part of the plaintiff. During this period of delay, two of the named defendants passed away, one in 2009, and the second in 2011. A Status Notice was issued in April of 2011 at the request of one of the defendants. A hearing date was set for June of 2011, but adjourned to February of 2012. Pleadings had not been finalized, no documentary productions had been exchanged, and no examinations for discovery had taken place.

[22] The Court of Appeal considered Rule 24.01, which enables a defendant to move for dismissal, and 48.14(13), which provides a mechanism for the court to control the pace of litigation.

[23] As the Court noted at para. 39:

In a case of a status hearing, however, an opportunity for the Court to consider dismissing an action for delay, will not arise for a considerable period of time after the proceedings have been initiated. Rules 48.14(1) and 48.14(2) which trigger the requirement that the Registrar issue a Status Notice, contemplate delinquency by plaintiffs which exceed that under Rule 24.01.

[24] In Faris, supra, given the plaintiffs’ delinquency in moving the action along, and the prejudice suffered because two defendants had passed away prior to examinations for discovery, the Court of Appeal upheld the motions judge’s decision to dismiss the action.

CONCLUSION

[25] On the facts before me, I am satisfied that the plaintiffs should be given a “lifeline” at this first status hearing to establish a timeline and a date by which this matter must be set down for trial. In forming my decision, I have considered the following points:

• This is a first status hearing, requested by the Registrar, not any of the defendants;

• The plaintiffs are not in default of any orders;

• This matter has moved along, pleadings have been exchanged, as well as Affidavit of Documents, however, examinations for discovery have not been conducted and expert reports, if any, have not been exchanged;

• The parties have tried, but failed to arrange examinations for discovery. Although much of the fault lies at the feet of counsel for the plaintiffs, this is not a case where the plaintiffs’ counsel has been silent or ignored correspondence requesting examinations for discovery or telephone conferences;

• The plaintiffs have submitted a draft timetable, including a date twelve months from the hearing by which the Trial Record ought to be passed.

• The prejudice to the defendants not being able to examine Mr. Tate may be overcome by the examination of Mrs. Tate who is available for discoveries.

[26] The plaintiffs submitted a draft timetable as an exhibit to its affidavit on this motion. It is ordered that necessary steps be taken and the trial record be passed no more than twelve months from the date of the status hearing.

[27] The parties shall have a 30-day period from the issuance of this endorsement to agree upon the steps to be taken and completion dates with respect to the draft timetable, failing which, the parties may return to the court for specific directions.

COSTS OF FIRST HEARING

[28] The plaintiffs were successful in obtaining the discretionary relief requested, but acknowledged responsibility for reasonable costs for the defendants. Costs submissions were made at the hearing. It is ordered that the defendant, William Ash, receive costs of $1,000. The defendants, Laura Philp and Ron McCowan, receive costs of $1,000, and the defendants, Grant Anthony and Royal LePage Kingsbury Realty Inc. be awarded costs of $5,400. Costs payable by the plaintiffs forthwith.

COSTS OF THE SECOND HEARING

[29] The defendant Ash brought a motion seeking leave to file medical information about Mr. Tate that came into its possession after the original hearing. I allowed the material to be filed as well as the affidavit in response from the plaintiff. In my view, the information about Mr. Tate’s medical condition was within the knowledge of plaintiff’s counsel prior to the June 11 hearing and ought to have been put before the court. Although the additional motion material was not dispositive of this hearing I am satisfied that the defendant Ash is entitled to reasonable costs on a partial indemnity basis. Under the circumstances I fix Mr. Ash’s costs at $1,500 all inclusive. In addition, I am satisfied that the defendants Laura Philp and Grant Anthony are entitled to costs. Their counsel attended and supported the submissions of Mr. Ash. I therefore fix their costs at $500.

MULLIGAN J.

Released: July 24, 2013