Court File and Parties

COURT FILE NO.: CV-07-9639CM

MOTION HEARD: 20130107

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: The Estate of Ebla Ahmed, deceased, Abdikarim Hersi, Asha Hersi, and Sadia Hersi, minors by their Litigation Guardian, Eddy Manzocco, Fadumo Hersi, Sheikh Mohammed, Mulaho Ali, Abdia Mohammed, Abdullahi Mohammed, Sahro Mohammed, Mohammed Mohammed, Abdiweli Mohammed, Shurgri Mohammed, Mohammed Ahmed, Fadumo Mohammed, Omar Ahmed, Abdi Mohammed, Abdul Mohammed and Hawo Mohammed, Plaintiffs

AND:

Hotel-Dieu Grace Hospital, Dr. Craig R. Pearce, Dr. Gordon Vail, Dr. Corrina Quan and Dr. Giulio Didiodato, Defendants

BEFORE: Master L.M. Pope

COUNSEL: Mason Greenaway, agent for John Macri, for the Plaintiffs

Jaan E. Lilles, for the Defendants, Dr. Craig R. Pearce, Dr. Gordon Vail, Dr. Corinna Quan, and Dr. Giulio Didiodato

Kendra Naidoo, for the Defendant Hotel-Dieu Grace Hospital

HEARD: January 7, 2013

REASONS FOR DECISION

[1] This is a contested status hearing. The action involves allegations of medical malpractice which the plaintiffs claim caused the death of Ebla Ahmed.

Background

[2] The statement of claim was issued on August 13, 2007 on the eve of the second anniversary of the death of Ebla Ahmed. There are 19 named plaintiffs, one of which is the Estate of the deceased, Ebla Ahmed. The balance of the claimants are individuals who have derivative claims under the Family Law Act. Three of the plaintiffs at the time the statement of claim was issued were minor children, who, up until the status hearing, were nominally represented by litigation guardian, Eddy Manzocco. Mr. Manzocco passed away in September 2011. By the time the first status hearing was held on January 20, 2012, only one of the minors remained under a legal disability; namely, Sadia Hersi, who is 21 years of age and has Down Syndrome.

[3] Eddie Kadri (“Kadri”), an associate lawyer with the law firm of Corrent & Macri, represented the plaintiffs and arranged to have the statement of claim issued in August 2007. Kadri did not obtain a monetary retainer, a written retainer or written instructions from the plaintiffs.

[4] The evidence is confusing regarding the date Kadri left Corrent & Macri. The plaintiffs’ evidence is that he left the firm in December 2007; however, the evidence of the defendant physicians (“defendants”) reveals that the last correspondence from Kadri is an unsigned memorandum dated June 3, 2009. The date Kadri left the firm may not be relevant to the issues on this motion; however, the confusion in the evidence bears mention.

[5] None of the named plaintiffs reside in the City of Windsor where plaintiffs’ counsel, John Macri (“Macri”), practices. The residences of the plaintiffs are as follows:

a) The three plaintiffs who were minors when the statement of claim was issued are the children of the deceased and now reside with their aunt, the plaintiff, Sahro Mohammed, in the City of Etobicoke, Ontario;

b) five reside elsewhere in Ontario, one in North York, one in Etobicoke and three in the City of Toronto;

c) two reside in the State of Virginia, USA;

d) two reside in the State of Michigan, USA;

e) one resides in Dubai, United Arab Emirates;

f) four reside in Somalia;

g) one resides in the City of London, England.

[6] There are geographical and language difficulties which affect effective communication between many of the plaintiffs and their lawyer.

Status Hearings

January 20, 2012

[7] Counsel for all parties attended the status hearing, including Macri for the plaintiffs.

[8] Prior to the status hearing, the defendants filed material in support of their request that the action be dismissed for delay. The plaintiffs did not file any responding material.

[9] A preliminary issue arose due to the fact that Eddy Manzocco, the named litigation guardian for the minors, had passed away in September 2011. The plaintiffs had not taken steps to appoint a new litigation guardian, nor had plaintiff’s counsel advised defence counsel of Mr. Manzocco’s passing.

[10] A further preliminary arose as to whether the defendants were required to serve the Children’s Lawyer with their material for the status hearing under rule 48.14(14).

[11] Ultimately I adjourned this status hearing to May 11, 2012 for a full hearing. I made further orders including a stay of the action of the three minors, the plaintiffs were given until April 20, 2012 to appoint a new litigation guardian, and the plaintiffs had until March 20, 2012 to file responding material. It was my view at that time that the defendants were not required to serve the Children’s Lawyer with their status hearing material.

May 11, 2012

[12] At this status hearing, lawyer Mason Greenaway (“Greenaway”), appeared as agent for counsel for the plaintiffs.

[13] At this time, the plaintiffs had not complied with two of the timelines ordered at the previous status hearing. They had not arranged to have a new litigation guardian appointed for the minor plaintiffs, nor had they filed responding material for the status hearing by March 20, 2012 as ordered; however, it was served by May 3, 2012. In addition, the plaintiffs filed a motion seeking an adjournment of the status hearing and an extension of the time limits ordered at the prior status hearing. The grounds for the relief sought were the geographic and language barriers given the residences of numerous plaintiffs outside of Canada and the United States of America, and the fact that the plaintiffs’ solicitor had not been able to obtain written instructions from each of the named plaintiffs. The defendants opposed the adjournment.

[14] The plaintiffs filed the affidavit of Macri sworn April 26, 2012. Macri is a partner in the law firm of Corrent & Macri, solicitors for the plaintiffs. Macri stated that he had not provided his clients with a copy of the Notice of Status Hearing as required by rule 48.14(9); however, he stated that he had a telephone conversation with the plaintiff, Abdia Mohammed, on April 10, 2012, at which time he advised her of the status hearing on May 11, 2012. This conversation on April 10, 2012 was the first time Macri had contacted or spoken with any of the plaintiffs. Macri spoke again with Abdia Mohammed on April 12, 2012 who advised him that she and the rest of the plaintiffs did not wish to proceed with this action. However, the next day Macri received a telephone message from Abdia Mohammed which states that the plaintiffs had changed their minds and they now wished to obtain new counsel and proceed with the action. Subsequently, Macri received three e-mail communications from Abdia Mohammed which states that the plaintiffs were in discussions with another law firm that was interested in taking the case. It was Macri’s evidence that it was his intention to have Corrent & Macri removed as solicitors of record for the plaintiffs at the earliest possible opportunity.

[15] The plaintiffs also filed the affidavit of plaintiff, Abdia S.A. Mohamed, sworn April 30, 2012. She resides in the State of Virginia, USA and is the sister of the deceased. For the majority of her affidavit, she spoke on behalf of all the plaintiffs on the basis that the statements were made to the best of her knowledge. She stated that none of the plaintiffs were in contact with, nor did they receive correspondence from their counsel from August 14, 2007 (day following issuance of statement of claim) until April 10, 2012 when Macri contacted her and advised her of the defence motion to dismiss the action for delay. She further stated that it has always been her intention and that of her co-plaintiffs to pursue this action. Further, she stated that it was her intention and that of her co-plaintiffs to retain new lawyers to replace Macri to pursue this action.

[16] Greenaway advised the court that he had been contacted by a Toronto lawyer who indicated that he expected to be retained by the plaintiffs shortly. The Toronto lawyer provided Greenaway with his available dates for a status hearing in June or July 2012.

[17] I granted the plaintiffs’ motion and adjourned the status hearing to August 20, 2012 for the reason that any prejudice to the defendants by this further delay could be compensated for by costs which were reserved to the next status hearing, including any costs of the January 20, 2012 status hearing.

August 20, 2012

[18] By this status hearing, plaintiffs’ counsel had not brought a motion to have Corrent & Macri removed as solicitors for the plaintiffs despite Macri’s evidence. Furthermore, the plaintiffs had not retained new counsel.

[19] A preliminary issue arose regarding whether the defendants were required to give notice of the status hearing to the Children’s Lawyer under rule 48.14(14) given that one of the plaintiffs remained under a legal disability and the fact that the litigation guardian had not been replaced.

[20] Ultimately, I made orders requiring the defendants to give notice of the next status hearing on November 2, 2012 to the Children’s Lawyer, and a continuation of the stay of the action as it affected any plaintiffs that remained under a legal disability.

November 2, 2012

[21] This status hearing was adjourned on consent of the parties to January 7, 2013.

January 7, 2013

[22] By this time, the plaintiffs had not retained new counsel, nor had Corrent & Macri brought a motion to have that firm removed as counsel for the plaintiffs.

[23] A preliminary issue arose regarding notice to the Public Guardian and Trustee (“PGT”). Mr. Lilles (“Lilles”) advised that he had given notice of the status hearing to the office of the PGT rather than the Children’s Lawyer because the only plaintiff that remained under a legal disability was Sadia Hersi who was 21 years of age and had Down Syndrome. He further advised that in late November 2012, the PGT consented to act as litigation guardian for Sadia Hersi. Counsel for the PGT did not attend this status hearing, nor did it file any material. Greenaway advised the court that prior to the commencement of the status hearing, he was able to contact by telephone a Mr. Walters at the office of the PGT who confirmed the PGT’s consent to act as litigation guardian for Sadia Hersi and that the PGT would take no steps until the disposition of the status hearing.

[24] On the basis of the above, the status hearing proceeded.

Steps in the Action

[25] The statement of claim was issued on August 13, 2007. The defendants delivered notices of intent to defend shortly thereafter.

[26] Between late September 2007 and mid-February 2008, counsel for the defendants contacted Kadri on numerous occasions requesting copies of the relevant medical records in the plaintiffs’ possession in order to prepare the statement of defence. Twice Kadri responded that the medical records would be forthcoming. On February 18, 2008, Kadri indicated that he was awaiting final medical documentation which would be forwarded to defence counsel.

[27] On April 18, 2008, Macri requested that the defendants deliver statements of defence by April 25, 2008.

[28] The defendants delivered their statements of defence and crossclaims on or before April 25, 2008.

[29] In August 2008, the defendants requested again the plaintiffs’ medical records, to no avail. On October 28, 2008, Kadri responded with the same response as in his letter dated February 18, 2008; that is, that he was awaiting “final medical documentation.” In fact, the wording of these two letters from Kadri is identical.

[30] In early December 2008, the court issued a notice of case conference scheduled for February 27, 2009. Ultimately, all parties consented to a timetable that included timelines for the balance of the steps in the action including that examinations for discovery be completed by August 31, 2009. The timetable was court approved on February 23, 2009.

[31] The first discussion of conducting examinations for discovery was in early January 2009 when counsel for the hospital asked Kadri for proposed discovery dates. By early June 2009, Kadri had proposed to defence counsel 14 days for discoveries between late July and late August 2009. However, by mid-July 2009, Kadri had not followed up on scheduling those discoveries. This is set out in Ms. Parghi’s (“Parghi”) letter of July 17, 2009 and it is acknowledge by the plaintiffs in paragraph 14 of Macri’s affidavit.

[32] Kadri was to arrange for discoveries once again; however, nothing occurred until Lilles telephoned Kadri’s office on January 8, 2010, followed by his letter of same date, requesting that Kadri advise him which of the defendants the plaintiffs intended to examine for discovery and that he had considerable availability in February 2010. Kadri did not respond to three letters from Lilles between January and April 2010. Thereafter, there was communication between defence counsel and Macri regarding proposed discovery dates in July 2010 to examine the “key plaintiffs”, the physicians and the hospital representative. However, a few weeks prior to the proposed discovery dates, the plaintiffs still had not advised Lilles which physicians they intended to examine. As such, the proposed dates were abandoned.

[33] No further steps are taken to reschedule discoveries until Lilles’ letter of August 25, 2010 when he requested once again that the plaintiffs advise him which physicians they intended to examine in order to arrange discovery dates.

[34] On September 21, 2010, plaintiffs’ counsel proposed 12 dates in November 2010 for discoveries and further advised that they intended on examining all four physicians and the hospital. Discoveries did not take place at that time due to limited availability of defence counsel.

[35] No further steps were taken to reschedule discoveries until Mr. Lilles’ letters of February 11, 2011 and March 10, 2011 when he requested that counsel provide their availability in April or May 2011. Parghi also wrote to plaintiffs’ counsel on March 8, 2011 regarding discoveries and whether the plaintiffs intended on proceeding with this action.

[36] On March 11, 2011, plaintiffs’ counsel advised that they were having difficulty reaching their client and requested availability in May 2011 for discoveries. Thereafter, Lilles provided his availability in June and September 2011.

[37] The Registrar issued a status notice dated August 29, 2011 pursuant to rule 48.14(1) as it had been more than two years since a defence had been filed and the action had not been terminated by any means. The status notice was served on all counsel on September 6, 2011. Plaintiffs’ counsel proposed that the parties agree to a timetable; however, the defendants refused to do so and advised that they intended on seeking a dismissal of the action. The plaintiffs requested a status hearing, the first of which was held on January 20, 2012.

Law

[38] At a status hearing under rule 48.14, a plaintiff has the onus to demonstrate why the action should not be dismissed for delay. In doing so, the plaintiff must satisfy a two-part conjunctive test; namely, that there is an acceptable explanation for the delay in the litigation, and if the action was allowed to proceed, the defendant would suffer no non-compensable prejudice (Faris v Eftimovski, 2013 ONCA 360; 1196158 Ontario Inc. v. 6274013 Canada Limited, 2012 ONCA 544, 295 O.A.C. 244 (“119”)). Notwithstanding that the test is conjunctive, the court retains discretion to dismiss the action when considering all of the circumstances. When exercising its discretion, a court must balance two competing interests—the plaintiff’s in having a hearing on the merits and the defendant’s interest in having the matter resolved in an expedient and time-efficient manner (Faris at para. 24).

[39] I pause at this juncture to note that the decision in Faris had not been rendered prior to this status hearing. However, I refer to that decision throughout given that the majority of the Court of Appeal in Faris concurred that the test applied in the 119 decision of the Court of Appeal was correct. When this status hearing was heard, the decision in 119 was the most current and leading decision on dismissal for delay at a status hearing. Faris is an important decision for its comparison of the respective tests under the rules to dismiss an action; namely, a defendant’s motion to dismiss under rule 24.01, dismissal for delay at a status hearing under rule 48.14, and a motion for leave to restore an action to a trial list under rule 48.11.

[40] Faris notes that the purpose of Rule 48 is to enable the court to control the pace of litigation and ensure that disputes are resolved in a time-effective manner (Faris at para. 33). It goes on to state that Rule 48 provides a number of mechanisms to enable the court to control the pace of litigation which supports the desirable objective of resolving legal disputes in a time-efficient manner. These mechanisms are outlined in subrule 48.14(13) (Faris at paras. 29-31).

[41] In comparing the tests under rules 24.01 and 48.14, Faris notes that the onus placed on the plaintiff under rule 48.14(13) is “mandated not only by the plain wording of the rule but also by the greater severity of the plaintiff’s delinquency in pursuing its claim.” At the time of the status hearing, “the emphasis on the objectives expressed in rule 1.04(1) ‘to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits’ must necessarily shift towards ensuring that disputes be resolved expeditiously and in a time-efficient manner” (para. 41).

[42] The focus of the inquiry at a status hearing is on the conduct of the plaintiff who is primarily responsible for the progress of the action. Therefore, it is the plaintiff who bears the consequences of conducting its action in a dilatory manner (Faris at para. 33; Wellwood v. Ontario Provincial Police, 2010 ONCA 386, 102 O.R. (3d) 555, at para. 48).

[43] The conduct of the defendant may be relevant especially where the plaintiff tried to move the action along but was thwarted by the defendant’s actions intended to delay or impede the plaintiff.

[44] As part of an explanation for delay, a plaintiff is required to put forward a clearly articulated plan for moving the case forward (Donsky v. Toronto Transit Commission (2008), 47020 (Ont. Div. Ct.) at para. 14).

[45] The test is conjunctive; however, even if the plaintiff can provide a satisfactory explanation for the delay, the action will be dismissed if there would be prejudice to the defendant. Also, if the plaintiff is not able to provide a satisfactory explanation for the delay, it is still open to the court to dismiss the action even if there is no proof of actual prejudice to the defendant (119 at para. 32).

[46] The absence of actual prejudice does not automatically or inevitably trump the values of timeliness and efficiency. At some point, a party who has failed to respect the rules designed to ensure timely and efficient justice loses the right to have its dispute decided on the merits (119 at para. 33).

[47] The court in Faris noted that the timelines the rules impose are relatively generous and there is a heavy price to be paid when they are not respected (para. 39). It further noted that if any action could not be dismissed for delay unless there was proof of actual prejudice, timelines would be meaningless. Where a party fails to prosecute an action in a timely fashion, the court is entitled to exercise the powers conferred by the rules to dismiss actions absent an adequate explanation for the delay (para. 34).

[48] Faris further noted that stale claims are more difficult to defend as memories fade and fairness includes allowing parties to have their actions resolved quickly (para. 43; Wellwood at para. 72).

Analysis

Litigation Delay

[49] As stated above, the onus is on the plaintiff to demonstrate a satisfactory explanation for the delay in this action.

[50] The plaintiffs state that the delay in this action was caused by the following:

a) the geographic distances between the plaintiffs’ residence;

b) the action was commenced by Kadri, an associate of Corrent & Macri, who left the firm and the file with Macri;

c) Macri did not have a written or a monetary retainer from the plaintiffs;

d) the litigation guardian passed away during the course of the action;

e) defendants’ delay in taking eight months to deliver their statements of defence;

f) examinations for discovery were not scheduled due to unavailability of defence counsel, their clients or failure to respond to the plaintiffs’ requests.

[51] Firstly, I find that there was a complete lack of communication between the plaintiffs and their counsel. There is not one piece of correspondence between plaintiffs’ counsel and the plaintiffs from the time this action was commenced in August 2007 until April 2012 when Macri had been in touch with one of the plaintiffs. Further, none of the plaintiffs were aware that examinations for discovery were being scheduled and that they would be required to attend, nor had any of them been requested by their counsel to sign an affidavit of documents, nor were any of them aware that a status notice had been issued by the court as their counsel had not provided them with a copy of the status notice as required under the rules.

[52] Further, when the first status hearing was held on January 20, 2012, none of the plaintiffs attended. The reason for that, of course, is that they had not been notified by their counsel of the hearing. Furthermore, and more importantly, at this status hearing, plaintiffs’ counsel attended with no instructions from his clients. Because plaintiffs’ counsel had no instructions, no material was filed in response to the defendants’ material seeking that the action be dismissed.

[53] Even by the second status hearing on May 11, 2012, plaintiffs’ counsel did not have instructions from all but one plaintiff as to whether they intended on proceeding with the action and, secondly, the appointment of a new litigation guardian. Moreover, the instructions from the plaintiff who plaintiffs’ counsel had reached, Abdia Mohammed, were confusing and problematic. One day she gave instructions, on behalf of all the plaintiffs, that they did not wish to proceed with the action, then the next day she left a telephone message that all of the plaintiffs had changed their minds and wished to proceed with the action and that they would obtain new counsel.

[54] Further evidence of lack of communication is Macri’s evidence that his conversation with Abdia Mohammed on April 10, 2012 was the first time he had contacted or spoken with any of the plaintiffs. This is despite the fact that he had been involved in this file since at least April 2008 when he wrote to Lilles demanding that the defence doctors deliver a statement of defence. It is reasonable to conclude therefore that Macri had been involved in this file for some two years before his conversation with Abdia Mohammed and he had had no contact whatsoever with his clients.

[55] By the time of the status hearing on January 7, 2013, the plaintiffs had not, in fact, appointed new counsel from April 2012 when Abdia Mohammed indicated that intention.

[56] Therefore, 16 months transpired, from September 6, 2011 when counsel were served with the status notice, to January 7, 2013 when the status hearing proceeded with argument, that plaintiffs’ counsel did not have instructions from his clients.

[57] I am cognizant of the inherent difficulties that any plaintiff’s counsel faces when representing numerous plaintiffs who reside in several countries. This fact can certainly account for some delay in an action. However, the difficulty in this action is the complete lack of communication between counsel and his clients from the commencement of the action and throughout the action, as outlined above.

[58] Aside from the lack of communication, it is my view that this action was neglected. It was not pursued with any interest or attentiveness by the plaintiffs or their counsel.

[59] The plaintiffs had not produced an affidavit of documents in almost three and one half years, from April 2008 when the first statement of defence was delivered until September 2011 when the status notice was served. Nor had they made production of any documents upon which they relied for the claim of medical negligence during that time. This is despite numerous requests by defence counsel early in the action. Defence counsel requested production prior to delivering their statement of defence. Although the plaintiffs were not obliged to make production at that time, it was never forthcoming. Kadri’s responses to defence counsel’s letters were that they would be produced “in due time” and in February 2008 he stated that he was “awaiting final medical documentation”.

[60] The parties agreed to a timetable which was court approved in February 2009. The fact that the parties agreed to a timetable was precipitated by the Registrar’s notice of case conference not by the plaintiffs’ initiation. The parties agreed that affidavits of documents would be exchanged by July 31, 2009 and examinations for discovery would be completed by August 31, 2009. The plaintiffs did not comply with the requirement to deliver an affidavit of documents by July 31, 2009 – or at any time in this action. This non-compliance is compounded by the fact of Kadri’s statement in February 2008 that he was “awaiting final medical documentation” which gave the distinct impression that documentary production was forthcoming.

[61] Further, it is noteworthy that the plaintiffs had not delivered any expert medical opinion regarding standard of care or causation given the medical negligence allegations for approximately four and one half years since the action was commenced. Although there is no requirement in the rules that they do so before discoveries, the timeline provided for delivery of expert reports was April 30, 2010.

[62] Another example of neglect occurred while the parties attempted to schedule examinations for discovery.

[63] It was admitted that plaintiffs’ counsel had failed to follow up with scheduling discoveries in July and August 2009 such that the proposed dates had to be abandoned. Subsequently, and despite his admission that he had not followed up, plaintiffs’ counsel took no further steps to schedule discoveries. In fact, it was six months later in January 2010 when counsel for the defendants telephoned and wrote to plaintiffs’ counsel to inquire about discoveries and what physicians the plaintiffs intended to examine. It took plaintiffs’ counsel eight months to respond to that request after three letters from defence counsel. In fact, because plaintiffs’ counsel had not advised of the names of the physicians he wanted to examine until a few weeks before the proposed dates for discoveries, those dates had to be abandoned.

[64] The parties attempted to schedule discoveries again in the Fall of 2010; however, they did not take place due to one of defence counsel’s busy schedule in November and the unavailability of the hospital representative.

[65] The plaintiffs fault the defendants for discoveries not having taken place. However, despite the efforts to schedule discoveries, I am not convinced that any of the plaintiffs were available on the dates proposed by plaintiffs’ counsel because the plaintiffs have not produced any evidence of any communication with any of the plaintiffs regarding their availability.

[66] Further evidence of neglect is the fact that the plaintiffs took no steps to appoint a new litigation guardian after Eddy Manzocco passed away in the Fall of 2011 and before the status hearing in January 2012, nor did they notify defence counsel of his passing. Moreover, the plaintiffs attempt to explain the delay in this action on the fact of Mr. Manzocco’s passing; however, admittedly the plaintiffs state the he was a “nominal” litigation guardian. I find that the fact of this passing did not impede the plaintiffs from taking any further steps in the action. There were numerous plaintiffs who acted in their own capacity.

[67] The plaintiffs attempt to explain the delay in this action, in part, due to Kadri leaving the firm and leaving the file with Macri. However, as noted earlier, Macri was involved in this file from as early as April 2008. Further, the fact that Kadri left the firm does not adequately explain any of the delay.

[68] I find that the defendants were responsible only for eight months of the total delay in this action; however, that time period is mitigated by the fact that plaintiffs’ counsel led them to believe he would produce medical documentation prior to statements of defence having to be delivered.

[69] The plaintiffs propose a timetable for the balance of the steps. This timetable is problematic for several reasons. Firstly, it does not properly form evidence on this status hearing because it is simply attached to their factum. It is reasonable to assume that the reason the timetable was not contained in affidavits filed by the plaintiffs is that their counsel had no instructions to propose the timelines. There is no evidence that any of the plaintiffs would make themselves available by June 30, 2013 as proposed. Further, the timetable fails to propose a date by which the action will be set down for trial.

[70] It is noteworthy that plaintiffs’ counsel comes before this court with no instructions from his clients regarding this action yet he seeks that the action be allowed to proceed. The only evidence adduced by any of the plaintiffs is from Abdia Mohammed who stated that the plaintiffs would be seeking new counsel. Of course, new counsel was not appointed despite nine months transpiring from April 2012 when the affidavit was signed and January 2013 when the status hearing took place. This is further delay caused by the plaintiffs. The matter is further complicated because the plaintiff, Sahro Mohammed, swore an affidavit in the new action that she gave Macri instructions to act for the three plaintiffs in that action. Those instructions clearly contradict Abdia Mohammed’s evidence that the plaintiffs would be seeking new counsel. Therefore, it is reasonable to conclude from this evidence that Macri does not have instructions from the plaintiffs to continue to represent them in this action.

[71] For the reasons above, I find that the plaintiffs have not met their onus of demonstrating an acceptable explanation for the litigation delay.

Prejudice

[72] The plaintiffs submit that there is no prejudice to the defendants if this action were allowed to proceed. They state that the medical records consist of hospital records of the defendant hospital that are in the possession of the defendant hospital and the medical records of the various named defendants that will be in their possession.

[73] The plaintiffs further contend that regardless of delay, the claims of the three children of the deceased in this action ought not to be dismissed as their actions were stayed. Further, that in the event of a dismissal of this action, the three children would be entitled to commence a new action. In fact, they did commence a new action as outlined below (“new action”). As such, it is argued that the defendants have sustained no prejudice with respect to the actions of the three children since those actions will continue and will not relieve the defendants from defending that action. They go on to contend that as the defendants still have to defend the new action, there is little point in dismissing this action.

[74] The plaintiffs further submit that the limitation period pertaining to the claims of the three children of the deceased against the defendants in this action has not expired. Therefore, Greenaway, as agent for plaintiffs’ counsel, issued a statement of claim on August 31, 2012 naming the deceased’s three children as plaintiffs and all of the named defendants in this action as defendants in the new action. The plaintiffs in the new action seek damages of $150,000 pursuant to the provisions of the Family Law Act for loss of companionship, care and guidance of their mother, Ebla Ahmed, who died on August 14, 2005.

[75] As stated earlier, two of the three minors are no longer under a legal disability, except Sadia Hersi who suffers from Down Syndrome. Therefore no litigation guardian is named for Abdikarim Hersi and Asha Hersi in the new action. The plaintiffs’ supplemental factum contains an affidavit of Sahro Mohammed sworn September 20, 2012 in which she consents to act as litigation guardian to Sadia Hersi in the new action. She further states in her affidavit that she has given written authorization to Macri to act as solicitor for the plaintiffs in the new action.

[76] I do not accept the plaintiffs’ submissions on the issue of prejudice for the following reasons.

[77] Despite the obvious problems with the new action, including an issue regarding the limitation period, and whether a derivative action under the Family Law Act may proceed in these circumstances, even if the new action were allowed to proceed, the defendants would only have to defend the claims of those three plaintiffs rather than 19 plaintiffs in this action.

[78] I find that the defendants will suffer prejudice if this action were allowed to proceed. This action was commenced over five years ago and it has been over seven years since the death of Ebla Ahmed. Discoveries have not been held, nor have any documents been exchanged. Rule 48.14(1) contemplates that two years following the filing of the first defence (which includes a notice of intent to defend) is ample time to complete the remaining steps and have the action set down for trial absent a satisfactory explanation. If this action were allowed to proceed, it is reasonable to state that a trial date would be at least two years in the future. Even the plaintiffs’ proposed timetable does not contemplate a settlement conference (properly called a pre-trial conference since the rules were amended in January 2010) until the latest February 28, 2014. Moreover, undoubtedly there will be more delay not contemplated by the proposed timetable due to the most recent delay wherein the plaintiffs state that they will be seeking new counsel. Therefore, this action will not reach trial until the earliest 2015, or eight years from the date the action was commenced and ten years from the date of death of Ebla Ahmed. This length of time makes it more difficult to defend as memories fade. I find therefore that there is a presumption of prejudice to the defendants in these circumstances which has not been rebutted by the plaintiffs.

[79] In conclusion, I have found that the plaintiffs have not shown cause why the action should not be dismissed for delay and that the defendants will be prejudiced if the action proceeded.

[80] Prior to making my order dismissing this action, I must address my order staying the action of the three minors. The background is that the order was made at one of the early status hearings when it was learned that the named litigation guardian for the minors had passed away and a new litigation guardian had not been named. Subsequently, when the plaintiffs failed to comply with the timeline order to appoint a new litigation guardian, the stay order was continued. It was eventually learned that two of the minors were no longer under a legal disability given their ages but Sadia Hersi remained under a legal disability. Eventually, by the status hearing in January 2013, the court was advised that the PGT consented to act as litigation guardian for Sadia. Therefore, it is my view that there was no need for the stay order to have continued after the status hearing on January 7, 2013. For the above reasons, the stay of this action as it relates to the former minors, Abdikarim Hersi and Asha Hersi, and Sadia Hersi, is hereby set aside.

[81] This action is hereby dismissed for delay pursuant to the provisions of rule 48.14(13)(b) with costs to all defendants for the status hearings and the action on a partial indemnity basis.

[82] If the parties are unable to agree on costs, each set of defendants shall have until August 19, 2013 to serve and file a costs outline for the status hearings and a bill of costs for the steps in this action. The plaintiffs are entitled to respond by serving and filing short submissions of no more than three pages double spaced no later than August 30, 2013.

Original stamped “Master Pope”

Master Lou Ann M. Pope

Date: July 31, 2013