2013 ONSC 5462

Richardson, et al. v. BMO Nesbitt Burns Inc., et al.

Court File No.: 06-CV-315569 PD1

Motion Heard: August 19/13

In attendance: R. Wise (416-865-7380, f.)

J. Markin (416-783-5508, f.)

By the court:

[1] The plaintiffs ask that I set aside the Order dismissing this action for delay. While I accept, as Ms. Wise has argued, that the action was dismissed after repeated and extended delays by the plaintiffs in prosecuting their claims and while I reject, on the evidence before me, the suggestion that the defendants BMO Nesbitt Burns Inc. and Fraser Chapman (the “Nesbitt defendants”) “seriously abused” the plaintiffs in the context of this action and “display[ed] serious…delay”, I am nonetheless giving the plaintiffs one last chance to advance their claims. My reasons are set out below.

[2] I understand the Nesbitt defendants’ frustration with the progress of the claims made against them and I agree that the plaintiffs’ motion materials raise but don’t address, completely, the issues that need to be addressed on a motion such as this. That said, I am of the view that they address them adequately or, when looked at in context, sufficiently.

[3] The questions I considered, in coming to this view, included:

[4] Is there a reasonable explanation for the plaintiffs’ delay? It is true that the plaintiffs did not make any attempt to communicate with the Nesbitt defendants or to otherwise advance the action—from the commencement of the proceedings in July 2006 until January 2009. It is also true that, when their first lawyer went off the record, the plaintiffs delayed by many months in delivering a notice of intention to act in person. They delayed in scheduling examinations for discovery and in fulfilling undertakings. They failed to comply with court-ordered timelines. They also withdrew this motion and delayed in bringing it back on for a hearing.

[5] But, counterbalancing all of that is the fact that the plaintiffs have had problems with their legal representation: one lawyer went off the record for them and two had difficulties with the Law Society that compromised their ability to offer the plaintiffs continued and consistent representation. One plaintiff had health difficulties—some of which are detailed for the court (albeit in a manner that does not permit the court to assess, as fully as it would like, their impact on the plaintiffs’ ability to conduct the litigation on their own and instruct counsel) and both plaintiffs had unspecified (but not challenged by the Nesbitt defendants) deaths in the family. The explanation, though far from perfect, is reasonable.

[6] Was the dismissal for delay occasioned through the plaintiffs’ inadvertence? The plaintiffs say that did not know that the action would be dismissed. Yet, there were timetabling Orders made, herein, referencing dates by which the action would or could be dismissed. It was the plaintiffs’ responsibility to make sure that they adhered to the court-mandated timetables. That said, at the time that Master Hawkins made his timetabling Order, the plaintiffs were self-represented. His Order of January 12/10 indicates that “the Registrar is not to dismiss this action for delay before November 1/10”. It does not say that no notice of the impending dismissal would be sent or that the action would be dismissed if certain steps were not taken. I accept that, for self-represented litigants, there could be some confusion by virtue of the ambiguity.

[7] I cannot say that the dismissal was not occasioned through the plaintiffs’ inadvertence. It is as likely as not that it was.

[8] Is there prejudice to the Nesbitt defendants? This action was commenced in 2006, (in part) for acts of negligence allegedly committed in 2004. While the limitation period has elapsed and while there is no doubt but that, over time, memories fail, there is no evidence before me of actual prejudice. While the plaintiffs have done little to rebut the presumption of prejudice, they have pointed to the fact that all steps in this litigation have been completed—save mediation and the setting down of the action.

[9] The argument is made by the Nesbitt defendants, in their factum, that the claim “would be difficult if not impossible to properly defend” and they rely, in this regard, on Parr v. CT Investment Management Group Inc., [2011] O.J. No. 4359 (S.C.J.). The problem with the defendants’ position is that there is no evidence before me to support the contention. If there were, I might be less inclined to favour the plaintiffs’ position in this regard.

[10] Was the motion brought expeditiously? The answer to this question is not a straightforward one. The motion proceeded with fits and starts because, among other things, Mr. Markin was retained but couldn’t practise law throughout the period of his retainer and because the motion was made returnable before the wrong judicial officer and was rejected by her.

[11] In all, I have before me a motion brought by plaintiffs who, for a time, were self-represented and who had acting for them, at various times, lawyers who were unable to take uninterrupted steps on their behalf because of problems with the Law Society. I have plaintiffs who state that they have been severely impacted by deaths in the family and one plaintiff who says that he has been impacted by illness. I have some evidence supporting their contentions and none challenging them. I have a secretary’s affidavit, filed on behalf of the Nesbitt defendants, appending documents, and no evidence from the Nesbitt defendants directly, or even their counsel, including in respect of the issue of prejudice. And, I have an action in which discoveries (documentary and oral) have been completed and all that remains to be done before the action is set down is the conduct of mediation and payment of an outstanding costs award. Taking a contextual approach and weighing all relevant factors (see: Scaini v. Prochnicki et al. (2007), 2007 ONCA 63, 85 O.R. (3d) 179 (C.A.), at para. 24), I think that to permit this action to continue—with the imposition of terms—is what is just in the circumstances.

[12] What terms? The plaintiffs have sought an indulgence from the court and, yet, they acknowledge (through counsel) being in breach of an Order made against them by Low, J. Costs of $5,000.00 were ordered paid, by them, to the Nesbitt defendants by July 6/12. The plaintiffs have proffered no evidence as to the reasons for their failure to pay the costs awarded against them or as to their inability to do so. I am not going to reward their default by simply granting them the relief that they are seeking—without more. The costs Order needs to be paid before the plaintiffs will be permitted to advance their claims. Once I receive confirmation from the Nesbitt defendants (copied to the plaintiffs) that the costs award has been paid, and only then, I will set aside the dismissal Order and impose two peremptory deadlines by which mediation is to be scheduled and this action is to be set down for trial, failing which the action once more will be dismissed by the Registrar.

[13] If the parties are unable to agree as to the costs of this motion, I may be spoken to.

August 23/13 ________________________