Court File and Parties

Court File No.: 09-CV- 393330 Heard: November 22, 2013 Superior Court of Justice - Ontario

Re: 09-CV- 393330 Madill v. Brookfield

Before: Master Joan Haberman

Counsel: Casey, E. for the moving party Grant, M. for the responding party

Endorsement

Master Haberman:

[1] The plaintiff moves to set aside the order of the registrar, dated September 17, 2012, dismissing this action for delay. The motion is opposed by the defendant, Cynergy, only.

THE LAW

[2] The law on motions of this kind is well established. The court is required to take a contextual approach (see Scaini v. Prochnicki et al., 2007 ONCA 63, [2007] 85 OR (3d) 179), looking first at the 4 factors set out in Reid v. Dow Corning Corp. (2002), 48 CPC (5th) 93, and then at all other relevant factors that may arise on a case by case basis. The court must then weigh the factors and make the order that is just in all of the relevant circumstances. This has been the law in Ontario regarding actions administratively dismissed for delay for the last few years.

[3] It is worth noting however, that in the last year, the Court of Appeal has also had the opportunity consider cases before an action has been dismissed, so at an earlier stage, in the context of opposed show cause hearings at a Status Hearing. In the last two cases from that court dealing with this specific issue, the court appears to have taken a harder line.

[4] In two cases which neither party before this court referred to (1196158 Ontario Inc. v. 6274013 Canada Limited et al. 2012 ONCA 544 and Faris v. Eftimovski et al. 2013 ONCA 544) the Court of Appeal placed the onus squarely on the shoulders of the plaintiff facing a show cause to demonstrate why the action should be permitted to proceed in the face of delay.

[5] In order to meet this onus, the plaintiff must satisfy a two-part test, as articulated by the Court in both of these cases. Both parts of the test must be satisfied as the Court of Appeal stated that the test is conjunctive. Thus, in cases that have not yet been dismissed, a plaintiff must provide the court with an acceptable explanation for the delay and prove that if the action is permitted to proceed, the defendant will suffer no non-compensable prejudice. There is no balancing act to be performed and the test in only contextual to the extent that the court must decide, presumably in the context of all relevant circumstances, if the explanation provided for the delay is acceptable.

[6] In view of this rather stringent test that the Court of Appeal is now applying to dilatory plaintiffs before their actions have been dismissed, it seems somewhat of an anomaly that the court should take a more lenient approach after an action has been dismissed by balancing a variety of factors.

[7] I raise this only insofar as it appears that the law regarding setting aside actions that have been administratively dismissed for delay may be in a state of flux. Having said that, in this case, regardless of which approach is taken, I find that the plaintiff has failed to meet the mark.

[8] Here are the facts.

CHRONOLOGY

Early stages

[9] The action arises as a result of injuries and property loss suffered by the plaintiff on December 15, 2007 – almost six years ago - when the plaintiff’s condominium unit was allegedly flooded with ethyl glycom as a result of a faulty or malfunctioning HVAC system.

[10] The statement of claim was issued on December 4, 2009 and the various defendants delivered their pleadings between March 2009 and June 2011. There is no evidence before the court to explain why defences were still being delivered this late in the day. Nor is there evidence to the effect that there were problems serving certain parties or explaining why none of these defendants was noted in default after what appears to have been an inordinate delay. The Case History makes no mention of motions for substituted service or seeking an extension of the time for service. I therefore conclude that that the delay regarding pleadings does not appear to have stemmed from issues regarding inability to locate or serve any of the defendants.

Examination for discovery of the plaintiff

[11] The examination for discovery of the plaintiff appears to have been started on October 25, 2011. Although the plaintiff filed no evidence on this point, I obtained the date from the transcript of the plaintiff’s cross-examination filed by the respondent.

[12] A review of the last few pages of that transcript indicates that this examination was not completed and why that was the case. At page 82, Mr. Strung states that counsel will have to adjourn the discovery as both he and the plaintiff were getting frustrated and they were not getting anywhere. This came immediately after his request for documents to support the plaintiff’s version of events, which had apparently not been produced and were not present at the examination. Mr. Strung than explained in detail the precise documents that the defendants would require in order to assess the claim advanced by the plaintiff and he added that a sworn affidavit of documents would be required, as well.

[13] This was followed by some questions which made it clear that there was other related litigation of which the defendants had not previously been apprised.

[14] As the plaintiff’s discovery was not completed, counsel agreed to adjourn discovery of all defendants, set for October 25, 27 and 28, 2012 except for Urbancorp.

[15] What is clear is that these discoveries did not proceed to their conclusion as a result of the plaintiff’s failure to make documentary disclosure and to advise defence counsel of a related piece of litigation. This is simply glossed over in the plaintiff’s evidence with one line stating examinations for discovery have not been completed. No explanation is provided to explain why the plaintiff failed to comply with Mr. Strung’s request so that discoveries could be rescheduled.

[16] Further, the plaintiff has tendered no evidence explaining why documentary disclosure was not completed before oral examinations were commenced or why defence counsel were not told about the related action earlier. It appears there was no discovery plan, something that the plaintiff was charged with preparing.

The third party claim

[17] On October 31, 2011¸Cynergy issued a third party claim against Dolvin Mechanical. They allege that Dolvin designed, supplied and installed the HVAC system in issue. It appears that Dolvin is actually John and Jane Doe, named as defendants in the statement of claim, who Cynergy managed to identify. I note that though the plaintiff has now been aware of the true identity of the Does for about 2 years, they have never moved to amend her claim to substitute Dolvin. In view of the time that has passed since learning of learned of Dolvin’s involvement, it is questionable if the plaintiff would be permitted to do so now.

[18] On May 8, 2012, the defendants, Urbancorp and Riviera served a notice of change of solicitors.

[19] Dolvin’s defence and counterclaim in the third party action were served on July 9, 2012 and their amended defence and counterclaim followed on July 16, 2012.

[20] In that it had not been done earlier, once all of the pleadings in the third part action had been exchanged, the plaintiff ought to have served an affidavit of documents and circulated a proposed discovery plan. Neither document appears to have been prepared.

Receipt of Status Notice and aftermath

[21] In the interim, on March 12, 2012, the plaintiff received a Form 48C, indicating that the main action was not on the trial list despite the expiry of the period permitted for bringing an action to its conclusion. There is no evidence that, following receipt of this notice, counsel provided a copy of it to his client, as the Rules require. There is also no evidence that a Status Hearing to show cause was requested at that time or that a motion was brought to extend the date by which the action had to be set down for trial.

[22] Instead, the plaintiff appears to have circulated a proposed timetable on March 31, 2012, and followed up on May 18, 2012. When assessing the viability of the proposed timetable, it is important to bear in mind that there are 7 or 8 counsel involved in this action when the third party is included, which makes scheduling any event a logistical nightmare. Most, if not all of the involved counsel, practice in the area of personal injury, such that volume is the word that defines their practices. That means that none of them would generally be available in the short term. Getting all counsel and their clients to the table by the end of May would have left all of two months to make the arrangements and to complete the event.

[23] I note that, as of March 31, 2012 the plaintiff proposed completing examinations for discovery at some point in May 2012. No precise date was even identified for completion of the event. The rest of the timetable hinged on this event, which could not possibly have been completed in such a short time frame where so many counsel and so many parties were involved. The fact that the same timetable, still setting a date in May for completion of discoveries, was again pursued by letter of May 18, 2012, with a request for its return by June 1, 2012, is very difficult to understand. Plaintiff’s counsel could not have possibly expect to get buy-in from all parties to this proposal.

[24] On May 24 and on June 1, 2012, counsel for the defendants, Cynergy and Veria, advised plaintiff’s counsel that his proposed timetable was not reasonable.

[25] Yet a third letter was sent by plaintiff’s counsel on June 1, 2012, with a somewhat more realistic draft timetable. Again, however, what was proposed was problematic. While the plaintiff now proposed completion of discoveries by December 15, 2012, the deadline proposed for exchange of productions, as well as all motions regarding productions (which ought to have been staggered deadlines, in any event) was March 30, 2013 – after completion of discoveries. In view of the reason for the adjournment of the initial examination of the plaintiff, this made no sense.

[26] Further, by this time, plaintiff’s counsel had already alerted the others to their intention to be removed from the record. This elicited questions on the proposed timetable, such as:

o did the plaintiff , herself, agree to be bound by it;

o did counsel had authority to enter into this agreement;

o did the plaintiff intend to hire new counsel; and

o what deadline was proposed for counsel’s motion to remove himself from the record?

[27] It was certainly clear, yet again, that there would be no consent on a proposed timetable.

[28] The plaintiff was given 90 days from the Status Notice dated March 12, 2012, to address it. Her counsel knew, by May 24, 2012, that there would not be agreement regarding the first proposed timetable. He was told again, on June 7, 2012, that what he later proposed was still not acceptable.

[29] Counsel also knew that, by June 10, 2012 the action would be dismissed by the Registrar if they failed to take steps to address the Status Notice. By June 7, 2012, they knew there was no concurrence regarding a proposed timetable so they either had to book a motion to extend the set down deadline or seek a Status Hearing, either of which they could have done at any time as a fall-back position. Yet, again, they failed to follow either of these paths, even when it was clear that there would be no consent timetable.

Efforts to be removed from the record

[30] Plaintiff’s counsel notified all defence counsel on March 14, 2012, two days after issuance of the Status Notice, of their intention to bring a motion for removal from the record. They did so again by letter of June 1, 2012. Although general availability of masters motions dates were sought in March 2012, an actual slot for this motion for removal was not sought until May 18, 2012, more than two months later. There is no explanation for this delay in the evidence.

[31] In fact, the only motion that the plaintiff appears to have tried to book was one by counsel to be removed from the record. This date was sought on May 16, 2012 – still within the 90 days within which steps could have been taken to address the Status Notice. The motion was returnable on August 14, 2012.

[32] The plaintiff’s evidence on this point is confusing. At paragraph 17 of the supporting affidavit, Mr. J.S. Tkatch states that the plaintiff returned completed requisitions to schedule short motions by e-mail of May 16, 2012. The e-mail in issue does ask to have both motions scheduled on the same day as they are related actions and two court action numbers are provided. Only one of the Requisition forms is actually attached as part of the exhibit. I assume the other involved a similar motion for removal in the related action. It in no way appears to have addressed the Status Notice received in this action.

[33] Aside from having circulated a late-in-the-day proposed schedule, it does not appear that any effort was made to do anything to protect the client’s rights, notwithstanding receipt of the Status Notice. Counsel’s focus, at this point, was on getting off the record in this and the related action.

[34] The filing of this motion appears to have stopped the clock, at least, temporarily, so the action was not dismissed in June 2012 as it otherwise should have been. Counsel appeared before Master Glustein on August 14, 2012 as did the plaintiff, who attended in person to oppose the relief sought.

[35] Although I do not have the materials that were before the master that day, his endorsement reflects that the only issue that appears to have separated counsel and client was the plaintiff’s failure to respond to requests for documents. Presumably, these were the documents sought by the defendants during their first attempt to examine her for discovery in October 2011.

[36] Rather than make the order sought, Master Glustein gave the plaintiff one last chance to comply with her counsel’s request. He ordered Madill to produce the documents to her counsel within 30 days, failing which they could bring the motion back on before him. The motion was therefore adjourned without a fixed return date, as whether or not it was going to be needed was contingent on the plaintiff’s compliance with the master’s order. This point is critical.

Dismissal of action and aftermath

[37] On September 17, 2012, the Registrar issued the order dismissing this action for delay. That order should have been issued immediately after the motion heard by Master Glustein in mid-August 2012.

[38] The Registrar clearly did not understand that he should not have suspended the dismissal order during the 30 day period afforded to the plaintiff to comply with her counsel’s request, as there was no return date for the motion. Had the plaintiff complied with Master Glustein’s order, a return of the motion would not have been necessary so there would have been no further court attendance. The dismissal date should therefore not have been suspended pending a possible return to court at some unidentified future date - a contingent event that might have never occurred. The 30-day compliance period was completely irrelevant to the dismissal so it remained an issue to be addressed by the plaintiff.

[39] Again, I have difficulty with Mr. J.S. Tkatch’s evidence on this point. In my view, it was not reasonable for him to have assumed that the new deadline by which the action had to be set down would be extended until after the 30 days afforded to his client to comply with the court order. There was no such request in their motion for removal, nor does it appear from the master’s endorsement that this was raised during oral argument. If an extension is required, it has to be sought. It does not appear that it was in this case and there was no pending scheduled motion so no date to which such an extension could logically be made. Layers are expected to understand how these Rules operate.

[40] Mr. J.S. Tkatch also states that they had scheduled the return of the motion for removal for October 18, 2012, but the evidence is silent as to when that was done – before or after the action was dismissed. That motion was adjourned by the court on October 16, 2012, a month after the action was dismissed. I am unclear as to how this is relevant. Had the motion proceeded on October 18, 2012 as scheduled, the master would not have been able to deal with in, in view of the action having already been dismissed.

[41] There is no evidence of any attempts to deal with the dismissal order earlier than March 19, 2013, more than six months after the action was dismissed. That appears to be the first time plaintiff’s counsel wrote to all defence counsel asking for their available dates for a motion to set the dismissal order aside. He wrote again on April 5, 2013. Responses trickled in through March, April and June and on June 13, 2013, counsel wrote to the motions office seeking a date for the motion, which was then scheduled for November 22, 2013.

[42] In this context, Mr. J.S. Tkatch states that the plaintiff always intended to address the status notice by implementing a timetable or attending a status hearing, as necessary, but was unable to do so prior to the registrar’s dismissal due to the circumstances set out above (their incorrect belief that the set down deadline would be extended by the order requiring the plaintiff to produce documents to her own counsel), as well as solicitor inadvertence.

[43] There are no particulars as to what that inadvertence involved. There is no explanation as to why a status hearing was not sought at the same time that the proposed timetable was circulated. If consensus was reached, the status hearing could have easily been converted to an in writing event by submission of a signed consent and draft order. The work involved in completing the form was minima and something a clerk or secretary could have done. I am left with no indication as to who dropped the ball or why they believe it occurred.

[44] There is also no evidence explaining why a status hearing was not sought after it was clear that consensus could not be built around the second proposed timetable or why counsel thought it best to wait until after the possible return to court to be removed from the record. Assuming that Tkatch was correct in his belief regarding the suspension of time pending the 30-day compliance period, it is highly unlikely any master would have simply granted the relief he sought and removed him as counsel of record in the face while a dismissal order loomed.

[45] Further, though this motion was not booked until June 2013, Mr. J.S. Tkatch swore, in a supplementary affidavit, that the plaintiff booked this motion promptly from the time the action was dismissed by the registrar. In that the action was dismissed in September 2012 and the motion was not booked until nine months later, I have difficulty with his characterization of this time frame.

[46] In that the plaintiff never complied with Master Glustein’s order, such that all of the documents sought remain inaccessible to the defendants, plaintiff’s counsel booked a return of their motion to be removed from the record, also for November 22, 2012. Presumably, they booked that before Master Glustein but they neglected to make it clear on their confirmations of both motions that they both motions should be on the same list and be placed before the same master. As a result, the hearing of this motion was delayed as counsel moved between courts.

[47] There is no affidavit from the plaintiff, herself, on this motion. Instead, in his supporting affidavit, Mr. J.S. Tkatch states that the plaintiff certainly has interest (sic) in pursuing the within claim, yet there is simply a complete breakdown in her relationship with Murray Tkatch and Tkatch & Associates. It is not clear how Mr. Tkatch arrived at this conclusion as he does not say. At best, he was so advised by his client, which would make this evidence hearsay. In view of the complete breakdown of the relationship, however, I am not prepared to simply infer that he spoke with the client about this and that this is what he was told.

[48] Mr. Tkatch adds that the defendants will suffer no prejudice if the action is reinstated and that no evidence has been lost by any delay. This is an odd assertion in view of the fact that the issue that appears to have caused the breakdown between the plaintiff and her counsel involves the documents they have been seeking from her to support her claim.

[49] These documents were first identified by Mr. Strung while he was examining the plaintiff for discovery in October 2011. The plaintiff was then ordered to provide them to her counsel within 30 days of August 14, 2012, so by September 13, 2012. On November 22, 2013, more than a year after the court order and more than 2 years following the request by defence counsel, the plaintiff has yet to produce the documents in issue. In this context, it is difficult to accept Mr. Tkatch’s evidence on this point and unclear what he bases it on.

ANALYSIS and CONCLUSION

[50] There are essentially only four factors to be considered and balanced as there was no evidence presented regarding any further relevant factors in addition to the four referred to in Reid, supra.

1. Explanation of the litigation delay

[51] The onus is on the plaintiff to move an action forward (see Wellwood v. Ontario Provincial Police, 2010 ONCA 386). If she fails to do so, she must then explain why matters have not moved at the expected pace.

[52] It is not enough to simply explain what did and did not happen and why, as occurred here– the explanation provided must satisfy the court that steps were, indeed, being taken, to advance the action towards trial.

[53] Delay has plagued this action from the outset. It is helpful to go back to the various stages of the action, as outlined in the chronology, to see why the action was delayed at each stage.

Early stages

[54] There is no evidence to explain why it took so long for defences to roll in and no indication that those pleadings were demanded from defence counsel or that default proceedings were ever threatened.

[55] As the claim was issued in December 2009 and the plaintiff had 6 months within which to serve it, all parties had to be served by June 2010. As there is no evidence suggesting otherwise and nothing in the case history indicating that an extension of the time for service of certain parties was granted or orders for substituted service were required and obtained, I infer that this is a state of affairs that the plaintiff simply tolerated.

[56] Even if some indulgences were granted regarding delivery of defences, there should have been some evidence from the plaintiff to explain why it took a full year for delivery of all defence pleadings and why no steps appear to have been taken to accelerate the process or bring it to a head by way of noting parties in default.

[57] This delay is therefore attributable to the plaintiff, as it is not clear that steps were taken by her to advance the litigation during this phase and if not, why that was the case.

Examinations for discovery

[58] It is clear from the evidence that discovery of the defendants did not proceed as scheduled as a result of the inability to complete the discovery of the plaintiff. It is also clear that examination of the plaintiff was not completed as she had failed to produce her damage documents or to disclose the existence of a related action before this event.

[59] What is not clear is the plaintiff’s failure to complete documentary discovery before being examined for discovery. A party is required to produce all relevant documents within their power, possession and control. This obligation is not restricted to the issue of liability - damages must also be considered. Here, both property damage and personal injury-related damages have been claimed but it appears from the transcript that this issue was neglected when disclosure was made and no affidavit of documents was served by the plaintiff before this event.

[60] The delay in getting on with discoveries is therefore attributable to the plaintiff.

The third party

[61] This does not appear to have caused inordinate delay. What is surprising is that the plaintiff failed to pick up on the fact that the Doe parties in the claim had now been identified so she ought to have moved to substitute Dolvin for them.

[62] It is also surprising that her amended affidavit of documents was not served soon after pleadings were exchanged or at any time after the status notice was issued and before the action was dismissed.

Receipt of the status notice and aftermath

[63] Having received the status notice on March 12, 2012, plaintiff’s counsel did two things: on March 14, 2012, they notified defence counsel of their intention to be removed from the record and they circulated a proposed timetable which could not be implemented in the time available on March 31, 2012.

[64] The same proposed timetable was the subject of a further request for consent on May 18. 2012. It was followed by a second proposed timetable on June 1, 2012. By this time, all counsel were aware of the breakdown in communications between the plaintiff and her counsel and some expressed legitimate concerns regarding counsel’s ability to bind his client.

[65] Following receipt of the status notice, it appears no efforts were made to either book a motion to extend the set down date or to seek a status hearing despite the deadline to take a step or risk dismissal of the action.

[66] This delay, too, is attributable to the plaintiff. A vague reference to inadvertence cannot save the day, in view of the absence of particulars as to how or why this occurred.

[67] Accordingly, it appears that at each stage of the action, all of the delays are attributable to the plaintiff or at least, they have filed no evidence to suggest otherwise. It seems to have taken a considerably long period of time for the exchange of pleadings but it remains a mystery as to why that was the case.

[68] The next big delay involved the inability to complete discoveries in October 2011. This, too, was a plaintiff-induced delay, as she had failed to produce her damage documents or advise counsel of a related action.

[69] Finally, by the time the dismissal order was received, the firm’s focus appears to have been on getting off the record in both this file and a related action. A proposed timetable with targets that were not attainable was circulated and consent were sought, not once but twice, and valuable time was lost while counsel awaited responses. There is no reason why a status hearing could not have been sought at the same time.

[70] Yet, no status hearing was sought nor was a motion booked to extend the set down date. Counsel simply sent along two versions of a proposed timetable and continued to move forward with their motion for removal, leaving the issue of the status notice without a satisfactory resolution.

[71] The plaintiff must take responsibility for all of these delays as the explanations provided are not reasonable, and on the whole, not acceptable.

[72] I use the term “plaintiff” to refer to the plaintiff, herself, and to her counsel, interchangeably. At this stage, it is not possible to say what transpired as between the two. It seems clear that damage documentation was sought by defence counsel during the course of the plaintiff’s discovery, but I have no way of knowing if her counsel had already asked her for this material, if she was of the view that she had provided it or if the documents simply do not exist.

[73] Although it appears, from Master Glustein’s order, that the plaintiff may have been less than cooperative with her counsel, that is an issue for another day. At this point, it is of no import if the delay was caused by the plaintiff or by her counsel. At the end of the day, the results of this motion will be the same regardless of which of the two is responsible for these delays.

2. Inadvertence in missing the deadline

[74] One aspects of an acceptable explanation for a delay is the fact that it was inadvertent. It is not enough, however, to simply utter that phrase to be able to restore a terminated action to life. Details regarding the inadvertence and explaining what led to it must be provided (see 744142 Ontario Ltd. v. Ticknor Estate, 2012 ONSC 1640). There must be satisfactory evidence to the effect that the plaintiff always intended to set the action down within the prescribed timelines or to seek a status hearing if she failed in that regard, but that she failed to do either through inadvertence.

[75] There is no evidence at all explaining why no status hearing was requested at the time the draft timetable was circulated, as soon as it appeared that it would be difficult to obtain consensus regarding the proposal, or even in the few days that remained before dismissal one it was abundantly clear that the proposal was not acceptable. There is also no evidence as to why no motion was booked or even walked in as an urgent matter before the action was terminated.

[76] It is also difficult to accept evidence to the effect that that the status hearing was not booked through inadvertence when counsel was clearly aware of the deadline he faced - his letters enclosing the proposed timetables made it clear he was working to deadline and that he knew when that deadline was. The problem appears to be that he had no back-up plan, no course of action in place that could be followed if a timetable could not be achieved.

[77] Putting a consent timetable before the court would have been the least labour-intensive and least costly path open to counsel to pursue. In view of the pending motion for removal, it seems counsel selected this option and failed to have a contingency plan in place. That, in my mind, is not inadvertence. It seems to me to have been a very strategic move to keep costs down in a case where a motion was pending for removal from the record.

[78] It was not reasonable for counsel to have believed that the date by which the action must be set down was suspended after the attendance before Master Glustein for the reasons set out above. Set-down dates are never suspended indefinitely – there has to be a specific deadline, such as the return date of a specific motion, so that compliance can be tracked by computer. That is how the system works. This deadline cannot be suspended when a motion is adjourned sine die and its return date is contingent on a party’s failure to comply with a court order.

[79] As a result, I do not accept that the deadline – one counsel was aware of - was missed by inadvertence.

3. The need to bring the motion promptly

[80] The action was dismissed on September 17, 2012. This was an error on the part of the registrar. While the pending motion to be removed from the record returnable on August 14, 2012 had the effect of putting the status notice in abeyance, there was no basis for that state to continue after Master Glustein’s order. In fact, the action should have been dismissed immediately after the return of that motion in August, so at an earlier date.

[81] No evidence at all has been filed to explain what, if anything, was done between the date of the dismissal order and the first attempt made by plaintiff’s counsel to book this motion on March 19, 2013, at which time plaintiff’s counsel wrote to the others to seek their available dates. In a motion of this kind, an unexplained gap of 6 months is problematic.

[82] Counsel also failed to advise their client of the dismissal order until March 20, 2013, more than six months after that order was issued. Again, there is no explanation for the delay.

[83] The motions office was not asked to book this motion until June 13, 2013, more than two months later. While it is laudable for counsel to seek common ground as to a suitable hearing date, if responses are not forthcoming quickly, follow-up is required. There is no indication that anything of that nature was done here.

[84] In total, there was a 9 month delay in getting this motion scheduled. Only a small part of that is attributable to trying to get a mutually available date for the hearing. While some time is needed to canvas available motion dates with those who will be responding to the motion, a 9- month delay in booking a motion of this kind is not acceptable.

[85] There is also no explanation for the delay in serving motion materials. Though booked in June, 2013, the plaintiff failed to serve their motion materials until November 13, 2013, five months later. While the Rules technically permit this, when dealing with a matter of this kind, it would have been prudent for the plaintiff to get her position out to the others at the earliest available opportunity.

4. Will the defendants suffer prejudice if the matter is allowed to proceed?

[86] In view of the late booking of the motion and the current state of the court calendar – something the plaintiff ought to have been aware of – it is now 14 months since this action was dismissed for delay.

[87] Further, the two-year limitation period that applied to this action expired on December 15, 2009 – almost four years ago.

[88] In Worral v. Power, 1969 CanLII 521 (ON CA), [1969] 2 OR 634, the Court of Appeal held that the expiry of a limitation period before the claim was served gave rise to a presumption of prejudice.

[89] The Court made similar findings in Claremonte v. Canadian Imperial Bank of Commerce, 1970 CanLII 470 (ON CA), [1970] 3 OR 97. There, it was held that in certain types of actions, such as those sounding in negligence, the expiry of a limitation period can be taken as the legislature’s measure of when a defendant may be presumed to be prejudiced by delay, the strength of the presumption increasing with the amount of time that has passed. The concern here was the erosion of memories over time, memory being an integral feature relied on by witnesses in negligence actions, where there is often less paper to substantiate what took place.

[90] Cronk J.A. reviewed the relevant case law and concluded that where there has been intentional delay, the presumption of prejudice was appropriate. On this basis, she distinguished Laskin J.A.’s comments in Finlay v. Van Paassen, 2010 ONCA 204, where he states that the delay in the litigation had no bearing on the limitation period.

[91] In view of my finding that the approach taken by counsel here was strategic – to do as little as possible in view of the pending motion to be removed from the record – the failure to seek a status hearing or book a motion to extend the set down deadline were both intentional omissions. As a result, the delay that led to the dismissal of the action was the result of intentional omissions and it therefore attracts a presumption of prejudice.

[92] The onus therefore shifts to the plaintiff to refute the presumption, but she has done nothing in that regard. In fact, there is a very real and legitimate concern here regarding the availability of damage documents, which the defendants have been seeking for over two years. It was the plaintiff’s failure to turn them over to her counsel that appears to have caused the breach between them.

[93] The typical approach taken by a plaintiff to provide assurances that there will be no prejudice if the action is permitted to proceed is to show that 1) all material witnesses are alive, easily located and available and 2) all relevant documents have been preserved and produced or will be shortly.

[94] No assurances of this kind have been provided here and all indications point to a very different conclusion.

[95] It seems to me that there is a real risk that the defendants may be unable to get a fair trial as a result.

[96] I therefore find that there is a risk of irreparable prejudice if this action is permitted to proceed.

[97] In summary, there are far too many and too lengthy gaps in the history of this action that are simply not explained at all. There are other gaps that have been explained but those explanations are not reasonable or acceptable. The evidence is vague and sweeping in some areas and lacks particulars with respect to some critical points. I find that several comments that were made are not capable of being believed, particularly when it comes to the timing for bringing this motion.

[98] I am not convinced that inadvertence played a role here but rather, the lack of action at the tail end of the action appears to reflect a strategic approach to keep costs down on the eve of being removed from the record.

[99] I am also concerned about possible prejudice to the defendants as a result of this ongoing issue involving the plaintiff’s failure to make documentary disclosure even to her own counsel when ordered to do so by the court.

[100] On the basis of all of the foregoing, I am required to dismiss this motion.

[101] I can be spoken to regarding costs if the parties are unable to agree, within thirty days from the release of this endorsement

Master Joan M. Haberman

Released: November 29, 2013