Court File and Parties

COURT FILE NO.: 09-CV-377457
Motion Heard: September 12, 2013

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: 09-CV-377457

Okafor et al v. White Duncan Linton et al

Before: Master Joan Haberman

Counsel:
Van Bakel, J. for the defendants
No one attending for the plaintiffs

Endorsement

Master Haberman:

[1] These Reasons reflect my decision following a show cause hearing, conducted after the court’s issuance of a Status Notice.

[2] The action was commenced by statement of claim, issued on April 28, 2009. It involves, among other things, allegations of solicitors’ negligence regarding the handling of 4 separate actions. The defendant lawyers were apparently retained initially in 1996 and the events the plaintiffs complain of began shortly thereafter.

[3] It is interesting to note that, among the plaintiffs’ allegations in this action vis a vis their former solicitors, is that as a result of the defendants’ negligence, their action (what they refer to as the Robert Hunt Corporation Action) was administratively dismissed, as they had failed to meet the 180 day deadline to set that action down for trial. It therefore appears that the plaintiffs were aware of court deadlines and the ramifications of failing to meet them.

[4] Although the plaintiffs are self-represented, it appears that the claim was drafted by or with considerable assistance from counsel. The Okafors indicate that it was actually Mr. Gillespie who drafted the claim, but he has never gone on record. This appears to be how the Okafors have conducted much of their litigation, including this action. Instead of formally retaining counsel, it appears that they seek assistance from counsel from time to time.

[5] The defendants’ evidence indicates that, since the exchange of pleadings completed in September 2010, the plaintiffs have taken no further steps to advance the action. They have not served their affidavit of documents nor sought discovery dates. This is a period of three years.

[6] The defendants also assert that the action was commenced by the Okafors as a means of avoiding the assessment proceeding that the defendants had initiated in late 2007. The Okafors requested an adjournment sine die on July 15, 2008, ostensibly to appoint new counsel. On August 12, 2008, the assessment officer set a new date of January 15, 2009 for the assessment.

[7] No one attended for the Okafors on the appointed date and a certificate of assessment in the amount of $52,588.48 was issued. The Okafors successfully moved, on consent, to set the certificate aside on April 8, 2009 and a new hearing date was set for July 9, 2009. The statement of claim, however, was issued in the interim. As a result, the assessment process is being held in abeyance pending resolution of the action.

[8] A Status Notice was issued by the court on November 14, 2011. The Status Notice makes it clear that the notice was issued because the “Action (was) Not on a Trial List”.

[9] The Status Notice then goes on to state why this is a problem:

a) it had been more than two years since a defence in the action was filed;

b) despite that, the action had not yet been placed on a trial list; and

c) the action had not been brought to conclusion by any other means.

[10] This is followed by the warning that “THIS ACTION SHALL BE DISMISSED FOR DELAY” unless one of several things occurs within 90 days. Various options are then set out, indicating that the Okafors could:

• set the action down for trial;

• terminate the action by other means;

• file documents in accordance with subrule 48.14(10) (for a status hearing in writing); or

• obtain a court order negating the impact of the notice. This usually involves obtaining some form of extension order, upon filing a motion to extend this deadline with proper supporting evidence.

[11] Alternatively, they could request a status hearing, where they would be required to show cause why the action should not be dismissed. This was the option selected by the plaintiff in this case and on November 14, 2011 – almost two year ago - a Notice of Status Hearing was issued by the court, setting a date of May 30, 2012.

[12] The Notice of Status Hearing makes it clear what a plaintiff must do at a Status Hearing. This is what it states, in bold capital letters:

AND TAKE NOTICE THAT THE PLAINTIFF MUST SHOW CAUSE WHY THE ACTION SHOULD NOT BE DIMISSED FOR DELAY.

[13] It is apparent from this Notice that:

• it is up to the plaintiffs to “show cause”;

• that they do this by explaining why the action should not be dismissed notwithstanding their delay.

[14] In other words, without having to read the case law that interprets Rule 48.14, a party who is not represented should understand from reading these court-issued documents that it is up to them to explain why there has been a delay and to try to convince the court that their action should permitted to go forward notwithstanding that delay.

[15] It has now been 22 months since the Notice of Status Hearing was issued, and almost a year and a half since the first attendance at Status Hearing court. Throughout this lengthy period of time and despite repeated adjournments of the hearing date to accommodate the plaintiffs, they have failed to take any action to advance this case.

[16] I note as well that the defendants maintain that the plaintiffs are:

sophisticated parties who have detailed knowledge of the litigation process. When they were the Firm’s clients we (sic – it appears that this should have been “they”) would provide detailed suggestions on litigation. June would even provide advice and instructions with respect to court filings, such as factums. It is incredulous (sic) to me that they have not prosecuted the action because they allegedly have been unable to engage counsel.

[17] The defendants assert further that the action was commenced more than two years after the Okafors ceased being their clients, so after the expiry of the applicable limitations period, and for the sole purpose of frustrating the Assessment proceeding.

[18] On the basis of the wording of:

o the two-court issued notices;

o the Okafors’ previous and current involvement in court actions without counsel of record;

o the fact that the Okafors apparently sought assistance from counsel from time to time;

o the fact that the dismissal of a previous action for delay is one of the basis for this litigation; and

o the defendants’ evidence regarding the level of sophistication of the Okafors,

[19] I am prepared to infer that these plaintiffs understood what their onus was at Status Hearing. Further, I also made it clear to them in March 2013 that they could enlist the support of the Law Help Office. I therefore do not believe that the Okafors should be treated any differently than any other plaintiff who is put in the position of having to show cause, whether or not they are formally represented by counsel who has gone on the record.

[20] Before going further, I note that there is no indication that either of the Okafors ever obtained leave of the court to represent the three plaintiffs who are not individuals. I therefore use the term “plaintiffs” to refer to the two individual plaintiffs, only, as the other three appear have no representation so were unable to make submissions before the court. Any action commenced by those plaintiffs must therefore be dismissed as they have failed to show cause.

PRELIMINARY ISSUE: Plaintiffs’ written request for an adjournment

[21] I dismissed the plaintiffs’ repeated written requests to adjourn this hearing date, faxed to me at various intervals over the few days preceding the hearing.

[22] Although the Okafors use faxes as their means of communicating quickly with the court, they do not have their own fax machine, so the court was not able to respond by like mode. Further, they have provided the court with no e-mail address and they do not appear to have any means to allow callers to leave voice mails for them. Finally, it seems they are often not at home or simply do not answer their telephone, so their phone rings repeatedly without response when a call is placed to them. This has made it extremely difficult and time-consuming to deal with the multiple faxes that they sent to my attention in a timely manner. Nonetheless, my staff has been successful in contacting them over and over again, as each new fax arrived, to advise them that the matter would be proceeding.

[23] Historical context is required to understand why an adjournment was not warranted. To that I add the fact that based on the written record before me, an adjournment would not have been helpful, as the evidence filed does not meet the applicable legal test in any event. These cases succeed or fail on the basis of the evidence filed. I will return to this.

[24] I have already noted this action was commenced while an assessment process already underway was adjourned at their request. After the exchange of pleadings in this action, the Okafors appear to have simply sat back.

[25] The initial Status Hearing was convened on May 30, 2012. The Okafors were in attendance at that time and sought an adjournment. Despite the clear wording of the Notice of Status Hearing, they came unprepared to address the issue of delay by way of evidence.

[26] The Okafors are no strangers to our courts. The evidence filed by the defendants includes various case histories which indicate that they have been and are currently involved in no fewer than 10 legal actions before the Superior Court. They appear to act for themselves in several of these cases, though they may have had counsel in the wings.

[27] I am therefore prepared to infer that the Okafors understand what it means when court dates are set, and that they also understand that the only way to put their evidence before a court, short of a trial, is through sworn affidavit evidence. I also made this clear to them in March 2013, which I will discuss in more detail.

[28] It was therefore surprising that they attended court on May 30, 2012 without written evidence, despite the wording of the court-issued notices regarding what they were required to do.

[29] The Okafors were given the benefit of the doubt and the matter was put over at that time, to be heard on a regular motions list, to be scheduled by the Okafors and defence counsel for a two-hour slot. The reason for the adjournment was to give the Okafors time to prepare.

[30] The matter was scheduled for my regular motions list on Sept. 6, 2012. This date was confirmed to the Okafors by letter from defence counsel, dated June 7, 2012 – 3 months in advance. On August 17, 2012, only weeks away from the new date and more than two months after being advised of the new date, Mr. Okafor wrote to advise defence counsel that he was not available on Sept. 6 as he had another matter pending in court that day, noting that that is why he had requested Sept. 14. It seems, therefore, that he was aware of the conflict from the outset, but waited until late in the day to so advise defence counsel. Mr. Okafor therefore sought a further adjournment, to which the defendants agreed.

[31] Defence counsel then looked into available court dates and confirmed that there was availability on my lists for Dec. 19 and 20. In his letter of August 30, 2012 to the Okafors, he notes that he tried to reach them by phone but no one picked up and no answering machine came on.

[32] Apparently, defence counsel was advised by Mr. Okafor that the plaintiffs would be out of the country in December and not available to argue the matter until February 2013. I note that this is almost a year after the first attendance in Status Hearing Court.

[33] Defence counsel agreed to secure a new date thereafter. They were then given the date of March 14, 2013. They wrote to advise the Okafors of the new date on December 11, 2012, again three months in advance, indicating that, once again, they had tried to call them but no one picked up and there was no answering machine on which they could leave a message.

[34] Thereafter, it was expected that the matter would proceed as scheduled on March 14, 2013. Instead, the Okafors attended with counsel, Mr. Hamalnagwa, who sought an adjournment on their behalf, this time, having advised defence counsel of their intention only the day before.

[35] The plaintiffs advised that they wished to read from statements they had written but I was not prepared to accept unsworn statements as that is not the proper way to put evidence before the court. Both individual plaintiffs reluctantly swore that the contents of their statements were true, such that the statements were converted to affidavits and treated as evidence.

[36] There are two important points that come out of the one-page statement submitted by the plaintiffs. First, the statement leads off with as assertion that the plaintiffs have made efforts to keep the action moving. In that regard, they indicate that in July 2012, Charles Roach agreed to assist them as they felt that Alex Gillespie, who they claim had carriage of these cases, was “dragging his feet.”

[37] As already noted, the Okafors issued the claim in their own name, and there is no indication that either Mr. Gillespie or Mr. Roach ever went on record for them. Therefore, Mr. Gillespie does not appear to have had carriage as claimed so it is unclear why the Okafors believed he was responsible for moving the action forward.

[38] Mr. Roach passed away in November 2012 and thereafter, the Okafors state that they were unable to ascertain who their case had been assigned to.

[39] This is important as it demonstrates that, at this early date in the proceeding, the Okafors were clearly aware that the issue they had to address was delay and they attempt do so, but only in the vaguest of terms. Without better evidence from the Okafors as to the nature of these alleged retainers, it is not possible to get a sense of why they felt Mr. Gillespie was “dragging his feet” and whether responsibility for the delay actually lay with him or with them.

[40] The Okafors also rely on their lack of legal training as a reason for the delay and they claim that they are acting for themselves. This ignores the fact that they appear to have acted on their own in other matters and is also somewhat at odds with their evidence regarding Mr. Gillespie. Further, this statement was given to the court on the same date that counsel appeared with them.

[41] Mr. Hamalangwa maintained that he had not been retained and that he was acting pro bono that day yet, it seems the plaintiffs rarely retain counsel, yet seem to have had assistance from various counsel from time to time nonetheless.

[42] Their poor health is yet another reason claimed for the delay. They state:

Mr. Okafor is disabled due to a motor vehicle accident and I have been taking him from hospital to hospital and clinic to clinic for examinations and physic (sic) treatment. He will have an operation next month. Last year about this time Mr. Okafor had surgery at St. Joseph’s Hospital in London for the same problem he is having now.

[43] This is the first and last time the Okafors rely on this pre-March 2013 motor vehicle accident as a reason for their delay. Yet, they say nothing more than this. When was this accident? The evidence suggest only that it occurred prior to March 14, 2013 but there is no indication of when it took place. What injuries were sustained? What was the nature of the surgery performed last year and the anticipated operation? Has it happened yet? What was Mr. Okafor diagnosed with and what is his prognosis? How is it that Mr. Okafors is being taken from hospital to hospital and clinic to clinic, though away from December until February? Without this information, the court cannot be expected to be able to accommodate Mr. Okafors needs.

[44] At no time throughout my dealings with the Okafors have they filed any documentation from a medical doctor addressing any of these issues. In fact, no medical evidence has been filed at any time until this week, when I received brief notes from a chiropractor and a psychologist which pertain to a later accident. I will return to this point.

[45] It is clear from this evidence that the Okafors were aware that the issue they had to address at a Status Hearing was delay and that it was up to them to explain the delay. This is reinforced by the fact that their statements were prepared after having been served with the defendants’ record for the Status Hearing, which deals with the issue of delay for approximately 2 pages.

[46] Though apparently aware that they had to address the issue of delay, the evidence filed with the court on March 14, 2013 refers to various reasons for the delay but fails to sufficiently particularize any of them to the point that the court can conclude that the Okafors’ explanation was an acceptable one at that point.

[47] Thus, a further adjournment was granted, and the matter was rescheduled to follow my Status Hearing Court at 11:30 am on August 1, 2013. I made a detailed order on March 14, 2013 as to what was expected of the plaintiffs:

This Status Hearing Show Cause is adjourned to my Status Hearing Court at 11:30 am on August 1, 2013. This date is peremptory to the plaintiffs and will proceed regardless of whether or not they have retained counsel, but only if the terms set out below have been met:

If the plaintiffs wish to make factual submissions on August 1, 2013, they shall provide their evidence in proper evidentiary form by way of sworn affidavit to be served and filed no later than the end of May 2013. If they require assistance with any aspect of this task, they can get it from Law Help on the main floor of this building behind the elevator bank. Materials served or filed after this date by the plaintiffs will not be admitted into evidence barring exceptional and unforeseen circumstances.

[48] My endorsement of that day also provided that the two statements, sworn by the Okafors and admitted into evidence, could be the subject of cross-examinations and required that the Okafors pay costs thrown away associated with the adjournment in view of their very late adjournment request. I am advised that the costs have now been paid.

[49] The August 1, 2013 was adjourned due a scheduling conflict at my end, and the matter was put over to September 12, 2013, thereby giving the Okafors even further time to prepare. Although the August date was set in March 2013, neither the court nor defence counsel heard anything from the Okafors in the interim to suggest that they might have any difficulty meeting that date or the September 12.

[50] The Okafors waited until August 30, 2013 to fax a letter to defence counsel, indicating that they would not be able to attend any official duties or appointments until further notice, and enclosing a very brief note from Elizabeth Juchniewicz, chiropractor, dated August 23, 2013. This letter was not copied to the court.

[51] Ms. Juchniewicz states that both of the Okafors began attending the Dixie Sports & Physiotherapy Clinic on August 2, 2013 due to (a) severe motor vehicle accident. She does not say when the accident was or set out the nature of the injuries suffered.

[52] She then adds that they will not be able to attend any court proceedings, hearings or schedules until their medical conditions are stabilized and she concludes by stating that they will be reassessed in 12 weeks.

[53] The first the court was advised that there was going to any difficulty with the September 12, 2013 was on Friday, September 6, 2013, at which time the Okafors faxed their letter dated August 27, 2013, enclosing the chiropractor’s note. I was not in chambers that day, in view of Rosh Hashana, so this request did not come to my attention until Monday afternoon, after court.

[54] Again, the letter, not sworn, is very vague. The Okafors state that they seek an adjournment and they give several reasons for the request. First, they advise that were involved in a motor vehicle accident through no fault of their own. No date is provided and they say nothing about having been injured.

[55] They then complain that the defendant, Hawreliak, has not yet been examined for discovery and that he refuses to be. They indicate that they discovered Mr. Steels and that there were outstanding refusals, such that they would be “recalling” him once they get a transcript, and bringing a motion regarding the refusals.

[56] Although the accident is mentioned, the focus of the adjournment request this time, appeared to be the desire to complete examinations for discovery. It is not clear why the Okafors believe they have a right to examine either counsel without having served their affidavits of documents. It is also unclear why they believe they can now take this step in the action, in the face of a contested Status Hearing. It is also not why they think that evidence going to the merits of the case will assist in the context of a Status Hearing.

[57] Finally, the Okafors do not address the fact that I made an order indicating that they were to file no further materials, barring unforeseen and exceptional circumstances, as a term of granting the last adjournment they sought in March 2013.

[58] It seems Mr. Steels was examined, but this was not an examination for discovery. Rather, he was cross-examined on the affidavit he filed in response to the show cause Status Hearing.

[59] My staff was advised on the afternoon of Monday, September 10, 2013, to tell the Okafors that that the hearing would proceed in that completing discoveries was not a basis for adjourning this matter. As the court has been given no way to contact them except by mail, my staff obtained their phone number from defence counsel and then made efforts to reach them by phone, no easy feat. No one answered the phone initially and, as noted earlier, they do not have voice mail. After repeated efforts, my staff finally reached their son, Ike, on the 10th and indicated to him that the hearing would proceed as scheduled.

[60] On the same day, the Okafors wrote again by fax. In their cover sheet, they indicate that all attempts to reach my staff failed. This makes no sense as his phone is equipped with voice mail and he assured me that his voice mail box was not full so there is no reason why a message could not be left. Instead, they left a message with my staff’s supervisor, which would further delay my receiving it.

[61] Although the letter is dated September 10, 2013 – a Monday- they write about a message left with their son “yesterday”. That was not the case. They now state that it is impossible for us to attend the hearing…for reasons already provided in a letter faxed to you on August 27, 2013. In fact, that letter was not faxed until September 6, when I was out of the office, so not received by me until the 9th. This is yet another aspect of how the Okafors deal with the court – letters are often faxed days after they are dated.

[62] A new basis for an adjournment is raised in this letter, the reference this time to a death in the family, which occurred on September 7, 2007, and we need time to grieve. There is no indication as to who died, but the Okafors add that the funeral service has been postponed due to their medical condition, which again, they do not describe. In the absence of particulars, the Okafors were again told the hearing would proceed.

[63] On September 11, 2013, at 3:00 pm, the day before the scheduled hearing, I received a further fax regarding the Okafors, this time from Physiotherapy Health & Wellness. Although the fax cover sheet is dated September 10, 2013, the fax was not received until the following day.

[64] The note from physiotherapist Naif Siddiqui is dated September 9, 2013 and states that the Okafors transferred their file from Dixie Sports & Physiotherapy to her clinic on August 26, 2013 and treatments began with her on August 30, 2012. This is all the physiotherapist has to say about the Okafors’ respective conditions, after indicating they are now getting help for their serious injuries:

As per Anthony/June, they are dealing with a lot of psychological issues. The scheduled hearing and the preparations involved plus the traveling required might create more stress for them therefore delaying the recovery and thus they will not be able to attend the status hearing scheduled for September 12, 2013.

[65] The only basis the physiotherapist gives for the adjournment request is based on the Okafors’ psychological condition, something she is not qualified to assess. She appears to understand that, as her opinion is couched in terms that indicate she is simply repeating what she has been told by the Okafors (As per Anthony/June…). Further, she is careful not to make a direct assertion regarding the outcome of their having to attend, stating only that this might heighten their stress which could delay their recovery.

[66] The physiotherapist makes no mention of a motor vehicle accident, nor does she refer to the death of a family member that occurred two days before the report was authored.

[67] Finally, part of the concern expressed by the physiotherapist involved the Okafors’ ability to prepare for the hearing. As the Okafors filed their evidence in March and May 2013, their preparation would been minimal. Accordingly, the Okafors were again told we would be proceeding.

[68] Just before starting my court on the morning of September 12, 2013, I received yet a further fax from the Okafors, this one dated September 11, 2013, but not faxed until September 12, 2013 at 8:44.

[69] The letter, signed by both Okafors, states that it was my mother who passed away on September 7, so it remains unclear who passed away. I am now told for the first time that the motor vehicle accident in issue took place on July 12, 2013, and that their car was “totalled”. They say they have difficulty sitting and travelling, focusing and making rational decisions, but again, there is absolutely no indication of the injuries that each allegedly sustained at that time.

[70] The real difficulty I have with this information is that the parties had already indicated in their sworn statement of March 14, 2013 to the effect that Mr. Okafor was disabled as a result of a motor vehicle accident, such that Ms. Okafor spent all her time going from hospital to hospital and clinic to clinic with him. In view of the reliance of yet an earlier accident as the basis for a pervious adjournment, I am not prepared to adjourn again absent evidence confirming the fact of the accident and medical evidence indicating the nature and extent of the injuries suffered by each of these plaintiffs.

[71] I am therefore left with little information as to this accident or the injuries either Okafor sustained in it. I am unclear as to who passed away and wonder why the sparse details I was given were not provided until the hearing date. Reliance on outstanding refusals from a cross-examination that was conducted after the deadline for filing further materials is also problematic, particularly as the merits are not where the Okafors should be focusing their evidence at this time. Despite repeated adjournment sought by the Okafors for a variety of reasons, they have never sought to extend this deadline, nor do they do so at this time. They are therefore bound to proceed on the basis of the evidence already filed. In view of all the time that has passed since the outset of this process, this is not unreasonable.

[72] For all the above reasons, the adjournment request was denied.

THE LAW

[73] I have recently had an opportunity to review the law in this area in Semaan v. OneWorld¸ where I made the following observations based on my reading of the Court of Appeal’s recent decisions in Faris v. Eftimovski et al., 2013 ONCA 360 and 1196158 Ontario Inc. v. 6274013 Canada Limited et al.2012 ONCA 544:

1. The primary responsibility for moving an action forward lies with the plaintiff (see Wellwood v. OPP, 2010 ONCA 386);

2. As a result, Rule 48.14(1) clearly places the onus on a plaintiff who receives a status notice to show cause as to why his action should be permitted to proceed;

3. The test to be applied requires a plaintiff to show that he has an acceptable explanation for the delay and that if he is permitted to proceed, that the defendant would suffer no non-compensable prejudice;

4. The test is conjunctive so that the plaintiff must prove both parts of it;

5. As a result, even if the defendant puts in no evidence about delay or about prejudice, the action could still be dismissed if the plaintiff’s evidence regarding either aspect of the test is not compelling and convincing;

6. Though the approach favoured when applying Rule 48.14(1) is to lean towards an expeditious resolution of actions, the court must be wary that it does not take a formulaic approach and discount unexpected contingencies. At the end of the day, the court must make the order that is just, on a case by case basis. This requires some flexibility by the court when dealing with unexpected and unusual contingencies.

[74] In addition, I stated the following:

As I have said in many previous decisions, what this all comes down to is the evidence. Plaintiffs cannot treat show cause hearings as perfunctory events that involve no more than throwing a chronology of events at the court. It is not for the court to extract or infer from the facts why the action has bogged down. It is for the plaintiff to explain why various steps took as long as they did to complete; to address all apparent time gaps; and to affirm their ongoing and current interest in proceeding with their action.

[75] As a result, what I am looking for here is evidence from the Okafors explaining why they took no steps to advance this action until June 2013, a year after the first attendance at Status Hearing Court and when it was clear that the action would not go forward unless and until they cleared this hurdle. What I am also seeking from them is a positive assertion that going forward with this action will not cause the defendants to suffer non-compensable prejudice.

THE EVIDENCE

[76] The evidence filed by the Okafors in March 2013 hints at various problems they appear to have encountered. They mention their difficulty getting legal advice but they have never had counsel with carriage. They also fail to provide relevant dates regarding their attempts to get legal assistance prior to March 5, 2013, almost four months after receipt of the Status Notice. In any event, I expressly directed them to Law Help in March 2013, an entity whose assistance they do not appear to have accessed from that time forward.

[77] The only evidence regarding prior issues that may have interfered with the Okafors’ ability to move this action forward appears to involve an allegation to the affect that Mr. Okafor was disabled following a motor vehicle accident, referred to in one of the March 14, 2013 sworn statements. No date for the accident or indication as to the nature of the injuries suffered or the current disability are provided. Past and future surgeries are mentioned, again without dates or any details.

[78] There is reference to having been unable to retrieve their file from Mr. Gillepsie, also in one of the March sworn statements, but it is not clear why he had it, as he was never on the record; whether and when the Okafors took steps to retrieve the file and whether they had duplicates of any of the materials.

[79] In addition to the two sworn statements, Anthony Okafor delivered an affidavit dated May 31, 2013. Mr. Okafor uses this document to respond to Mr. Steeles’ affidavit, filed on behalf of the defendants. As a result, he deals primarily with the merits of the action, dealing with each of the 4 actions which the defendants were involved with.

[80] The Okafors then claim that Mr. Gillespie took carriage of all four actions from the defendants, though he does not appear in the court files as counsel of record on any of them. They claim, that he, too, let them down and failed to act in all four cases. Despite that, they claim that Mr. Gillespie then had carriage of this case for them, again an assertion not borne out by the court file and a curious turn of events if they were not happy with his work on the other matters.

[81] In fact, at no point in this affidavit does Mr. Okafor address either the issue of delay in any substantial way or the issue of prejudice to the defendants. Instead, he seeks an order compelling the defendants to lift a lien that they registered on property that belongs to one of the plaintiffs.

CONCLUSION

[82] On the basis of what the plaintiffs have filed, I am unable to conclude that the vague assertions and the short notes from a chiropractor and from a physiotherapist provide the court with an acceptable explanation for the delay in moving this action forward. There is also no reference to the prejudice aspect of the test.

[83] Had the Okafors attended the hearing on September 12, 2013, the result could have been no different. Their deadline for filing evidence expired well before they even began to cross-examine Mr. Steele and they have no right, at this juncture to put either Mr. Steele or any of the other defendants through an examination for discovery, as it is simply premature to take such a step unless and until the action is permitted to go forward. The issue before the court at a Status Hearing is not the merits of the case. This hearing is meant to address delay and prejudice. Thus a detailed exploration of the merits at this time in the context of an examination for discovery would add nothing.

[84] As I noted earlier, these cases rise and fall on the quality of the evidence filed. The Okafors were advised to consult Law Help but it appears that they chose to do this on their own and, for whatever reason, they ignored the clear wording on the Status Notice and the Notice Convening Status hearing, though they appeared, at the outset, to understand that delay was going to be a critical issue for the court..

[85] There is no evidence before the court to suggest that a more flexible approach is in order here. Ms. Okafor’s evidence in March 2013 to the effect that Mr. Okafor is disabled is hard to understand in the context of her September letters, referring to injuries sustained in yet another accident in July. There is no mention of a death in the family until it appeared that all else failed – the physiotherapist doesn’t even mention it in her note, written two days after this alleged event.

[86] Defence counsel pointed out that this action was commenced only after they began the process to assess their accounts, which has been stayed pending the resolution of the action. Their theory is that the plaintiffs have an interest in putting off resolution as long as possible in order to defer that process.

[87] In view of how the Status Hearing has been handled over the course of 16 months, I am inclined to agree.

[88] In view of all of the forgoing, the action is dismissed.

[89] The defendants seek their costs on a full indemnity basis, as a result of the repeated adjournments and what they say was an as abuse of process to begin with, in view of what they see as the purpose of this action.

[90] In view of the amount at stake – in excess of $33,000 – I am prepared to allow the Okafors to make brief written submissions in response. Mr. Van Bakel shall provide the Oakfors with a copy of his cost outline forthwith if he has not yet done so. They shall provide me with their submissions by fax, not later than October 4, 2013 and Mr. Van Bakel shall reply by October 11, 2013. The ONLY issues to be addressed by the Okafors at this time is whether they should be liable for the costs of the action on a full, indemnity basis; whether they question the quantum sought and if so, on what basis. If I hear nothing from the Okafors by this deadline, I will render my decision without their input.

Master Joan M. Haberman

Released: September 19, 2013