ONTARIO

SUPERIOR COURT OF JUSTICE

DATE: 2013-09-10

BETWEEN:

Ryan David

Plaintiff

– and –

Niagara Regional Police Service, Regional Municipality of Niagara Police Serves Board, John’s Doe and Jane’s Doe, Employees of The Niagara Regional Police Service

Defendants

Margaret Hoy, for the Plaintiff
Stephen Chisholm, for the Defendants

HEARD: August 21, 2013

THE HONOURABLE JUSTICE B. H. MATHESON

ENDORSEMENT

[1] This matter was heard by me on August 21, 2013. The style of cause that I am using was the original style used in the Notice of Action. In the Notice of Motion there was a different style of cause, with the Plaintiff adding several more names. That was part of the motion to add those names.

[2] The main issue is whether this court should grant leave to set aside the Order Dismissing the Action and setting a timetable if the action is restored.

FACTUAL OUTLINE

[3] The Plaintiff states that he was ‘tazered’ by one officer of the Defendant and another officer threatened to shoot him. Those events allegedly occurred on October 31, 2008.

[4] On or about July 14, 2009 he retained counsel, Margaret A. Hoy.

[5] On the 28th of October, 2010, this action was started by way of a Notice of Action, see Motion Record Tab A. Note that the style of the Notice of Action refers to John’s Doe and Jane’s Doe.

[6] This Notice of Action was served on the Defendants, Niagara Regional Police Service and Regional Municipality of Niagara Police Service Board, on October 29, 2010.

[7] On December 13, 2010 an email was sent to Ms. Hoy from Marjorie Rossetto confirming ‘receipt of the Statement of Claim involving your client’. This was acknowledged that this was in error and that the Defendants had received the Notice of Action.

[8] Note that this email was sent some 46 days after the Notice of Action was started.

[9] Because of the error in Ms. Rossetto stating that the Defendants had received a Statement of Claim rather that the Notice of Action, the Plaintiff did not file a Statement of Claim. The Defendants did not file a Statement of Defence.

[10] In response to a letter from the Plaintiff’s lawyer on June 20, 2011, Ms. Donna Pasto responded to that letter that the Statement of Claim had never been served on the Defendants.

[11] On July 29, 2011 the Plaintiff’s counsel received a copy of the Order Dismissing Action as Abandoned. This was dated July 22, 2011 (see Motion Record of the Plaintiff Tab 2 D). The Plaintiff received the same document on or about the same date.

[12] On or about February 13, 2013 the Defendants received a letter from Ms. Hoy requesting that the Defendants consent to an order setting aside the Order Dismissing the Action.

[13] The Defendants, through counsel, Stephen Chisholm, replied to Ms. Hoy on March 12, 2013 (see Responding Motion Record of the Defendants Tab 2) . The Defendants state that no Statement of Claim was ever filed in accordance with Rule 14.03(2), (3), and (4). He also states that the Plaintiff is in breach of Rule 37.14 by not bringing a motion to set aside the Registrar’s order as soon as the Plaintiff became aware of the order. At the time of writing the letter, some 19 months had passed since the Plaintiff was aware of the dismissal.

[14] The Defendant also states that the adding of the two officers’ names by way of amendment was also statute barred.

[15] That letter was dated on March 12, 2013. The Notice of Motion that asked that the Order Dismissing Action be set aside was returnable on July 24, 2013, more than four months after the letter from Mr. Chisholm. The motion was adjourned on consent to August 21, 2013.

[16] There was no mention of amending the style of cause to add the two named police officers in the Motion Record.

STATUTORY CONSIDERATIONS

[17] The Plaintiff brought this motion under Rule 37.14, which reads in part as follows:

(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.

Order Made by a Registrar

(3) A motion under subrule (1) or any other rule to set aside, vary or amend an order of a registrar may be made to a judge or master, at a place determined in accordance with rule 37.03 (place of hearing of motions.)

[18] Rule 14.03(2) (3) (4) deals with the manner that a notice of action may be used.

(2) Where there is insufficient time to prepare a statement of claim, an action may be commenced by the issuing of a notice of action (Form 14C) that contains a short statement of the nature of the claim.

(3) Where a notice of action is used, the plaintiff shall file a statement of claim (Form 14D) within thirty days after the notice of action is issued, and no statement of claim shall be filed thereafter except with the written consent of the defendant or with leave of the court obtained on notice to the defendant.

(4) The notice of action shall not be served separately from the statement of claim.

[19] That section states that the Statement of Claim shall be filed within 30 days after the notice of action has been issued. No Statement of Claim shall be filed after the 30 day period except with written consent of the defendant or with leave of the court.

[20] No consent was obtained nor was leave of the court asked for. The Notice of Motion was to have the court remove the dismissal by the Registrar.

[21] The Notice of Action shall not be served separately from the Statement of Claim.

[22] In this case, the Notice of Action, without the Statement of Claim, was served on the Defendant on October 29, 2010. This was in breach of Rule 14.03(4).

[23] The Statement of Claim had to be filed by the Plaintiff within 30 days after the Notice of Action was filed. This was not done.

[24] Counsel for the Plaintiff is attempting to state that she was misled by the email of Marjorie Rossetto of December 13, 2010. It was counsel’s responsibility to file a Statement of Claim within 30 days and this was not done.

[25] Counsel should not have served the Notice of Action without the Statement of Claim. She cannot rely on the error of the Defendants’ email stating that it had been served with the Statement of Claim, when it should have read the Notice of Action.

THE LAW

[26] In this action the Plaintiff is asking this court to dismiss the Registrar’s Order Dismissing the Action. The reasons were stated in the Order dated July 22, 2011, found at Tab 2 D of the Plaintiff’s Motion Record.

[27] The affidavit that accompanies the Notice of Motion basically outlined the facts as stated by Marie Crowe. Only at paragraphs seven to nine is there any indication as to the delays that this file has encountered. I find that there is very little explanation as to the delays encountered.

[28] The Court of Appeal of Ontario dealt with the issue of the courts dealing with the timely delivery of justice in the court system in the case of 1196158 Ontario Inc. v. 6274013 Canada Limited et al, 2012 ONCA 544, 112 O.R. (3d) 67 at paragraphs 41 and 42:

[41] The civil justice regime should deliver timely justice to both plaintiffs and defendants. Failure to enforce timelines frustrates the legitimate expectations of both those who claim and those who defend. Unless the basic ground rules of litigation—including time requirements—are enforced in a principled way, counsel cannot provide reliable advice and clients cannot plan their affairs in an orderly manner.

[42] If flexibility is permitted to descend into toleration of laxness, fairness itself will be frustrated. As the status hearing judge recognized, even if there is no actual prejudice, allowing stale claims to proceed will often be unfair to the litigants. Disputes are more likely to be resolved fairly if they are resolved in a timely fashion and, accordingly, the enforcement of timelines helps achieve the ultimate goal of fair resolution of disputes [page 80] Stale claims are more difficult to defend. As this court stated in Wellwood, at para. 72, “as the memories of witnesses fade over time, the passage of an inordinate length of time after a cause of action arises or after an applicable limitation period expires gives rise to trial fairness concerns. In my view, this is so even when timely notice of the claim has been provided.

[29] In a recent case, dealing with restoring an action to the trial list, issued by the Ontario Court of Appeal in Nissar v. Toronto Transit Commission 115 O.R. (3d) Justice Tulloch writing for the Court stated at paragraphs 30 and 31 the following:

[30] In my view, it is preferable to place the onus on a plaintiff to explain the delay and satisfy the court that it would not be unfairly prejudicial for the defendant to have the action restored to the trial list. This court has held that it is the plaintiff’s responsibility to move the action forward and prosecute the matter as diligently as possible: see Wellwood v. Ontario (Provincial Police) (2010), 102 O.R. (3d) 555 [2010] O.J. No. 2225, 2010 ONCA 386, at para.48.

[31] Therefore, the applicable test is conjunctive : a plaintiff bears the burden of demonstrating that there is an acceptable explanation for the delay in the litigation and that, if the action was allowed to proceed, the defendant would suffer no non-compensable prejudice.

[30] The Ontario Court of Appeal in Frederick Finlay v. Jason Van Paassen, Peter Van Paassen Sr. and Unifund Assurance Company, 2010 ONCA 204 at paragraph 25 stated the following:

[25] “In Marché d’Alimentation Denis Thériault Ltée. v Giant Tiger Stores Ltd. (2007), 2007 ONCA 695, 87 O.R. (3d) 660 at para 12, this court approved four factors to be considered on a motion to set aside an order dismissing an action for delay:

The Master applied the four-pronged test described in Reid v. Dow Corning Corp. (2001) 11 C.P.C. (5th) 80 at para. 41 (Ont. S.C.J.), rev’d on other grounds 48 C.P.C. (5th) 93 (Ont. Div. Ct.):

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

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

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

(4) No Prejudice to the Defendant: The plaintiff must convince the court that the defendants have not demonstrated any significant prejudice in presenting their case at trial as a result of the plaintiff’s delay or as a result of steps taken following the dismissal of the action.

[31] Before I deal with that case, I would like to refer to the remarks that Goudge J.A. said in Scaini v. Prochnicki (2007), 2007 ONCA 63, 85 O.R. (3d) 179,

[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.

[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.

[32] Goudge, J.A. states that in applying the four step test in Marché d’Alimentation v. Giant Tiger Stores Ltd., one should weigh all relevant considerations to determine the result that is just.

[32] I will now apply the four steps that were referred to in the Marché d’Alimentation case referred to above:

Explanation of the Litigation Delay

1. There is very little explanation for the delays that have occurred in this file.

Unlike the Finlay v. Van Paassen case, at the time of the motion before the motions judge, the case had progressed rather well. The file did come to a stop when the original lawyer for the Plaintiff left the firm. In this case there has not been a valid Statement of Defence filed. There is a gap of some five years.

2. The Plaintiff claims that he has suffered great physical and mental distress due to the actions of the Defendants.

3. We do not have a Statement of Claim filed as of this date. In the Motion Record of the Plaintiff, there is what purports to be a Statement of Claim.

4. Rule 14.03 allows the use of a Notice of Action where there is insufficient time to prepare a Statement of Claim (Rule 14.03(2)). In this case, counsel was retained by the Plaintiff on or about July 14, 2009. On October 28, 2010, this action was started by way of a Notice of Action.

5. There was no explanation as to why the Statement of Claim was not issued instead of a Notice of Action. Also, when one looks at the Notice of Action, it refers to John’s Doe and Jane’s Doe, not the named police officers that were referred to at the hearing. Certainly, counsel in the 15 months from being retained until the Notice of Action had time to obtain the information from the Defendants. There is no explanation as to why counsel was not able to get that information.

6. A Plaintiff, according to rule 14.03(3), shall file a Statement of Claim within 30 days after the Notice of Action is issued. This was not done and no explanation was given for the failure to follow the Rules of Civil Procedure.

7. Plaintiff’s counsel does state that they were misled by an email from Marjorie Rossetto, dated December 13, 2010 (see Motion Record of the Plaintiff Tab C). This email was sent some 45 days after the filing of the Notice of Action, some 15 days after the Plaintiff should have filed the Statement of Claim. The Plaintiff cannot rely on the Defendant’s email to explain why the Plaintiff did not adhere to the Rules of Civil Procedure.

8. In a case where a Statement of Claim has not been issued within the 30 days, the Plaintiff must obtain the written consent of the Defendant or with leave of the court. This was not done and no explanation was given for the failure to comply with the rules (see Rule 14.03(3)).

9. In Rule 14.03 (4) ‘the notice of action shall not be served separately from the statement of claim.’ The Plaintiff served the Defendant with only the Notice of Action. There was no explanation why the rule was not complied with. It is possible to surmise that if the Statement of Claim had been served, as it should have been, there may not have been the problems that are now before the court.

10. The Plaintiff’s counsel received a letter, dated July 29, 2011, from the Defendants that stated that they had not received a Statement of Claim.

11. On July 29, 2011, as stated above, the Plaintiff’s counsel received an Order Dismissing the Action. Aside from correspondence between the lawyers for the parties, no action was taken to deal with the Order Dismissing the Action, until the Plaintiff’s lawyer brought the present motion.

12. There is no explanation as to why there was such a delay in bringing this motion. It was scheduled to be heard on July 24, 2013. It was heard August 21, 2013.

13. There is no explanation why there was a delay of some two years in bringing this motion.

Inadvertence in Missing the Deadline

[33] In the affidavit of Marie Crowe, found in the Plaintiff’s Motion Record, there was only one reference to inadvertence, at paragraph nine. It states “due to the inadvertence of counsel and staff changes at that time, it has been discovered that the Statement of Claim was never filed with the court.”

[34] It does not indicate what the inadvertence was. Nor did it address the failure to follow the Rules of Civil Procedure, which might, if they had been followed, have prevented this matter.

[35] There was no explanation as to the two-year delay in bringing this motion.

The Motion is Brought Promptly

[36] As stated above, the Order Dismissing Action as Abandoned was served on the counsel for the Plaintiff on July 28, 2011. The Notice of Motion was dated June 21, 2013 and was first returnable July 24, 2013 and heard on August 21, 2013.

[37] No valid reason was given for the two-year delay. One would have expected that counsel would have made this a priority item, but it was not.

No Prejudice to the Defendant

[38] I am appreciative of the fact that some of the individuals who the Plaintiff wanted to add as Defendants were police officers. They are trained to make full notes of the events that they are investigating. In a number of cases the Defendants are not trained to take notes and the delay would cause them some prejudice.

[39] In this case the alleged events took place on October 31, 2008. It would appear that the Plaintiff wanted to change from the John and Jane Doe when this motion was heard on August 21, 2013, almost five years later.

[40] People’s memories have a tendency to fade with time, even if there are notes taken at the time of the alleged event.

[41] It is my belief that if this was the only issue of concerns that I would not find it a reason not to allow the motion to proceed.

Amending Statement of Claim to add Chad Davidson and Neal Krulik and Gord Duncan

[42] In the Notice of Motion there is no reference to amending the Statement of Claim. I could find no reference to a prior Statement of Claim.

[43] The counsel was retained on July 14, 2009. The Notice of Action was dated October 28, 2010, some 15 months later. Certainly counsel had more than ample time to obtain the names of the officers from the Niagara Regional Police Service, either with the Niagara Regional Police Service’s cooperation or by way of a motion for particulars. That was not done.

[44] There is no indication when the Plaintiff’s lawyer obtained the names of the officers. This motion was returnable July 24, 2013, some four years later. No reference was given as to the delay in naming the officers in a valid Statement of Claim.

[45] I find that the Statute of Limitations applied and the Plaintiff’s application to have the three officers as party defendants is denied.

FINDINGS ON THE MOTION TO SET ASIDE THE ORDER DISMISSING THE ACTION

[46] The Plaintiff started this action by way of a Notice of Action, some 15 months after he had retained Ms Hoy. No explanation was offered for this delay, as to why the action was not started by way of a Statement of Claim.

[47] Counsel did not file a Statement of Claim within 30 days as required by the rules, and did not give an explanation for not doing so.

[48] Counsel served the Defendants with the Notice of Action but not the Statement of Claim as required by the rules. No explanation was given for that breach.

[49] On July 29, 2011 Plaintiff’s counsel was served with an Order Dismissing Action as Abandoned by the Local Registrar in Welland. The motion was heard over two years later. No realistic explanation was given for this delay

[50] I find that the Plaintiff has not provided the court with any valid reasons for the lengthy delay and the failure to follow the rules.

[51] I also find that the Plaintiff has not provided the court with any reasonable explanation that there was inadvertence in missing the deadline. The Plaintiff had ample time to fill the appropriate documents. All we have is glaring delays with no explanation as to why the rules were not complied with.

[52] The third ground that the court must consider is whether the motion was brought promptly. There was no reasonable explanation as to why it took the Plaintiff over two years to bring a motion to set aside the Order of Dismissal.

[53] I have already dealt with the fourth ground that the court should consider, that is prejudice to the Defendant.

[54] I find that the Plaintiff has not satisfied the court that the Order of Dismissal should be revoked for the reasons given above.

[55] If counsel are not able to agree on costs I may be spoken to.

Matheson, J.

Released: September 10, 2013

DATE: 2013-09-10

BETWEEN:

Ryan David

Plaintiff

– and –

Niagara Regional Police Service, Regional Municipality of Niagara Police Serves Board, John’s Doe and Jane’s Doe, Employees of The Niagara Regional Police Service

Defendants

E N D O R S E M E N T

Released: September 10, 2013