COURT FILE NO.: 03-11196
DATE: 2014-02-26
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Peter Simatovic, Plaintiff/Moving Party
AND:
State Farm Mutual Insurance Company, Defendant/Responding Party
BEFORE: The Honourable Mr. Justice G. E. Taylor
COUNSEL:
William G. Scott, Counsel, for the Plaintiff/Moving Party
Eleonora Persichilli, Counsel, for the Defendant/Responding Party
HEARD: February 18, 2014
ruling on motion to set aside registrar’s dismissal
Introduction
[1] This is a motion by the plaintiff to set aside the Order of the Registrar dated May 6, 2008 dismissing this action pursuant to Rule 48.14 of the Rules of Civil Procedure.
[2] This action arises out of a motor vehicle action that occurred on April 8, 2002. The plaintiff claims damages for personal injuries which he alleges he suffered in that accident.
Chronology
[3] The following is a chronology of the dates of significant events in this action:
April 8, 2002
Date of accident
December 11, 2003
Statement of Claim issued
February 10, 2004
State Farm Statement of Defence delivered
December 21, 2004
Motion by State Farm to have action dismissed for delay – plaintiff ordered to bring a motion for an order for substituted service of the Statement of Claim on the defendant Derek Seguin (incorrectly names as Derak Segew)
January 19, 2005
Order for substituted service of the Statement of claim on the defendant Seguin
February 2, 2005
Defendant Seguin served with the Statement of Claim
February 23, 2006
Status Notice served
May 18, 2006
Status Hearing held – hearing adjourned to November 30, 2006 with examinations for discovery to be held by September 30, 2006
September 1, 2006
Examination for Discovery of the plaintiff held
November 30, 2006
Status Hearing held – hearing adjourned to March 30, 2007
March 30, 2007
Status Hearing held – hearing adjourned to November 6, 2007 - the plaintiff was ordered to bring a motion consolidate the action with 3 other actions
November 6, 2007
The insurer of the defendant Segew was ordered to bring a motion to be added as a third party to the action within 6 months – the endorsement stated “action to continue” with no adjournment date specified
May 6, 2008
Registrar’s Order dismissing action
November 16, 2011
Notice of Motion to set aside registrar’s dismissal was served
Companion Action
[4] On the same day as the Statement of Claim in the present action was issued, a Statement of Claim was issued in which the plaintiff’s wife was the plaintiff. The Statement of Claim in the companion action was issued by the same law firm as is representing the plaintiff in this proceeding.
[5] By way of a Notice of Change of Lawyer dated July 7, 2008, the plaintiff in the companion action appointed Adam K. Wagman as her lawyer of record. On December 29, 2008 the companion action was dismissed by way of a Registrar’s Dismissal. On January 22, 2009, an order was made setting aside the Registrar’s Dismissal dated December 29, 2008. By way of Notice of Change of Lawyer dated February 11, 2010, the plaintiff in the companion action reappointed Lou Ferro as her solicitor of record.
Law
[6] The parties are in agreement the following four factors which are derived from Reid v. Dow Corning Corp.(2001), 11 C.P.C. (5th) 80 are to be considered when deciding whether to set aside an Order dismissing an action pursuant to Rule 48.14:
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.
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.
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.
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.
[7] In Scaini v. Prochnicki, 2007 ONCA 63, [2007] O.J. No. 299, the Ontario Court of Appeal explained that while the four Reid factors are likely to be of central importance in most cases, there may be other relevant factors which, in any particular case must also be considered. The Court held that in deciding whether to set aside a Registrar’s Dismissal Order, all relevant factors must be considered and weighed in order to determine what is just in the circumstances of the particular case.
[8] Neither party, in either oral or written submissions, suggested that, in the particular circumstances of the present case, there were any factors of significance other than the four Reid factors. I will therefore address those four factors in the order in which they are set out above.
Explanation for the Litigation Delay
[9] The Statement of Claim was issued on December 11, 2003. The defendants were named as Derek Seguw and State Farm Mutual Automobile Insurance Company. The individual defendant’s correct name is Derek Seguin. State Farm delivered its Statement of Defence on February 10, 2004. Seguin did not deliver a Statement of Defence. There is no evidence that the plaintiff took any steps to move the action forward up to the end of November 2004. On November 18, 2004 State Farm served a Motion Record seeking an order dismissing the action. The motion was argued on December 21, 2004 and resulted in an order requiring the plaintiff to seek an order for substitutional service of the Statement of Claim on Seguin no later than January 31, 2005.
[10] The plaintiff obtained an order without notice dated January 19, 2005 for substitutional service of the Statement of Claim on Seguin. The Statement of Claim was served on Seguin in accordance with the order by way of a letter dated February 2, 2005. By way of a letter dated April 27, 2005 Seguin was again served with the Statement of Claim in accordance with the Order for substituted service. No explanation was provided as to why Seguin was served twice with the Statement of Claim. Counsel for State Farm was not advised that Seguin had been served. On July 18, 2005, counsel for the plaintiff wrote to Seguin requesting that he appoint counsel and “enter an appearance at this time”.
[11] On November 7, 2005, counsel for State Farm wrote to counsel for the plaintiff requesting that Seguin be noted in the fall for failure to deliver a Statement of Defence. The plaintiff took no steps to note Seguin in default.
[12] On February 23, 2006, a Status Notice was issued and sent to counsel for the plaintiff and counsel for State Farm. A Status Hearing was scheduled for May 18, 2006. The Status Hearing was adjourned to November 30, 2006 with a term that examinations for discovery were to be held by September 30, 2006. The examination for discovery of the plaintiff was scheduled for September 1, 2006. August 28, 2006, counsel for State Farm wrote to counsel for the plaintiff confirming that only the plaintiff would be examined for discovery on September 1, 2006. On August 31, 2006 counsel for the plaintiff served a Notice of Examination for a representative of State Farm to take place on September 1, 2006. Examinations for discovery apparently did not proceed on September 1, 2006 but the plaintiff was examined on September 21, 2006. There is no evidence that any steps other than service of the Notice of Examination on August 31, 2006 were ever taken to conduct an examination for discovery of a representative of State Farm.
[13] On November 30, 2006, the Status Hearing was further adjourned to March 30, 2007. On March 30, 2007, the Status Hearing was further adjourned to November 6, 2007 and the plaintiff was ordered to bring a motion to have the present action, the companion action and two other actions arising out of the same motor vehicle accident involving the same plaintiffs and Seguin consolidated or tried together. On July 19, 2007 an order was granted that the four actions be tried together or in the alternative tried in succession as the trial judge may direct.
[14] On July 20, 2007 counsel for the plaintiff advised counsel for State Farm that an order had been obtained on July 19, 2007 consolidating the four actions. In a letter dated July 24, 2004 counsel for State Farm advised counsel for the plaintiff that the Statement of Claim erroneously alleged that the date of the subject motor vehicle accident was April 18, 2001 rather than April 8, 2001 and that the insurer for Seguin would not take any steps to defend the action until the error was corrected. There is no evidence that any motion was ever brought to amend the Statement of Claim to correct the date of the accident.
[15] On November 6, 2007 a representative from the office of the plaintiff’s lawyer attended the Status Hearing and obtained an order that a motion to have Seguin’s insurer added to the action as a statutory third-party be brought within six months and that the action was to continue. The Status Hearing was not adjourned to a specific date nor was an order made that the action be set down for trial before a certain date. On February 12, 2008, on the motion of ING Insurance Company of Canada, Seguin’s insurer, an order was made adding ING as a statutory third-party to the present action. On April 17, 2008, the plaintiff was examined for discovery by the solicitor for ING and further examined by counsel for State Farm.
[16] On May 6, 2008 the Registrar’s Order dismissing the action was made.
[17] I conclude that, other than issuing the Statement of Claim and serving it on State Farm, the plaintiff took no steps to move this litigation forward that were not brought about by some action on the part of counsel for State Farm or the court. There is no evidence that attempts were made to serve Seguin before November 2004. It required a motion by State Farm to obtain an order requiring counsel for the plaintiff to seek an order for substituted service of the Statement of Claim. Counsel for the plaintiff took no steps to note Segew in default for failure to deliver a Statement of Defence. Thereafter, the only steps initiated by the plaintiff were those which were ordered to be taken at the various Status Hearings including producing the plaintiff for an examination for discovery before the end of September 2006 and obtaining an order that the four related actions be tried together. There is no evidence that counsel for the plaintiff arranged an examination for discovery of a representative of State Farm or that a motion was brought to amend the Statement of Claim to correct the mistake regarding the date of the accident.
[18] This was not a complex case. Although four separate Statements of Claim were issued in relation to the same accident, they all involved claims by a husband and wife against a single driver. I therefore conclude that the plaintiff has failed to 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.
Inadvertence in Missing the Deadline
[19] There is virtually no evidence on the present motion from which it could be concluded that the action was not set down for trial, before it was dismissed, as a result of inadvertence. Plaintiff’s counsel attended at the Status Hearing on November 6, 2007 and presumably sought and obtained an order that did not require either a return to court on a specified future date or that the action be placed on a trial list on or before a specified date. No explanation is put forward for this endorsement being sought and obtained.
[20] In an affidavit sworn October 5, 2011, the plaintiff states that he never intended the action to be discontinued or abandoned and it is his wish that the action continue. There is no evidence of any inquiry by the plaintiff of his lawyer between the date of issuance of the Statement of Claim and the date of dismissal of the action as to the status of the lawsuit.
[21] In an affidavit of Eric Gruszewski, a Case Manager employed by the solicitor for the plaintiff, sworn November 1, 2011 is the statement: “If there was any undue delay in these proceedings it was not intentional and we ask of the Court to give the Plaintiff relief”. That statement, which, in my view, is contradicted by the evidence, is not sufficient to justify the conclusion that the deadline was missed as a result of inadvertence. The evidence leads me to the conclusion that the plaintiff and his lawyer were cavalier, at best, towards their obligation to move this action forward.
The Motion is Brought Promptly
[22] The motion to set aside the dismissal order was not served until November 16, 2011. Counsel for the plaintiff was aware by June 4, 2008 of the Registrar’s Order dismissing the action. It was conceded by Mr. Scott, counsel for the plaintiff for the purpose of the present motion, that the motion to set aside the Dismissal Order was not made promptly. Notwithstanding that concession, I think it appropriate to refer to some of the evidence about the events that took place between June 4, 2008 and November 16, 2011.
[23] The affidavit of Eric Gruszewski says that on June 4, 2008 an effort was made “to obtain a copy of the Order of Justice Fedak in order to complete the Motion Record to set aside the Registrar’s Dismissal Order”. One would reasonably conclude from that statement that the only document required to complete the Motion Record was the order of Justice Fedak. The affidavit of Eric Gruszewski goes on to say that on June 20, 2008 a former employee in the office of the solicitor for the plaintiff drafted a motion to set aside the Registrar’s Dismissal but was unable to complete it due to the unavailability of the order of Justice Fedak. Nowhere is it explained why the missing order was critical to completion of the motion record to set aside the dismissal order. I note that the Motion Record served in November 2011 did not contain a copy of an order of Justice Fedak.
[24] According to the affidavit of Eric Gruszewski, the next step occurred on October 24, 2008 when another former employee in the office of the solicitor for the plaintiff reviewed the file and attempted to complete the Motion Record to set aside the Dismissal Order. No explanation is given as to what was required to complete the Motion Record at that time.
[25] The affidavit of Eric Gruszewski goes on to say that on February 25, 2009 “copies of all materials required to complete the Motion Record were requisitioned from the Court”. Again no explanation is given as to what materials were at that time required to complete the Motion Record and what documents were requested from the court. I would have thought that all necessary documentation to be included in the Motion Record would be contained in the file in the office of the plaintiff’s lawyer.
[26] The affidavit of Eric Gruszewski then sets out that attempts were made in September 2009 to draft the Motion Record but it was never completed because of lack of proper materials and inadvertence. There is no detail provided as to what materials were lacking. Nothing further happened until April 6, 2010 when, according to Eric Gruszewski an employee of the plaintiff’s solicitor “initiated gathering a complete copy of records in this action and related actions from the Court”. Lou Ferro, the plaintiff’s solicitor, in an affidavit sworn July 25, 2012 makes reference to the same step being initiated on April 6, 2010.
[27] According to the affidavit of Eric Gruszewski, all necessary court documents had been obtained from the court file by May 6, 2011. The affidavit of Lou Ferro provides somewhat more detail about the events that transpired between April 6, 2010 and May 6, 2011. Apparently funds were requisitioned at the end of June 2010 for the cost of obtaining copies of the pleadings in the present action from the court. No explanation is given as to why it was necessary to obtain copies of pleadings from the court which one would reasonably expect would be in a solicitor’s file. In any event it was not until August 2010 that the cheque for the cost of obtaining copies of the pleadings was delivered to the court. No explanation is provided as to why it took over a month to requisitione funds and prepare a cheque for delivery to the court. The affidavit of Lou Ferro then goes on to refer to six occasions between August 30, 2010 and April 5, 2011 when efforts were made to obtain documents from the court file. However, the affidavit contains no detail to explain why it took so long to obtain the documents in question.
[28] From the affidavits of Eric Gruszewski and Lou Ferro it is clear that by May 6, 2011 at the latest, all necessary documentation was in the possession of the office of the plaintiff’s lawyer and yet it took a further five months to draft and complete the Motion Record to set aside the Registrar’s Dismissal Order. I note that the affidavit in support of the motion, sworn by Eric Gruszewski is five pages in length containing 36 paragraphs. There are four exhibits attached to the affidavit. The Motion Record also contains a one page, five paragraph affidavit sworn by the plaintiff. It is difficult to understand why it would take more than a few weeks, at most, to complete such a relatively simple and straightforward Motion Record.
[29] From the affidavit of Lou Ferro, some insight is gained into what was occurring during the period between May 2008 and November 2011. However, the steps that took place had nothing to do with moving to set aside the Dismissal Order, which one would have expected to have been a priority. During the period in question, ING was added, by its own motion, as a statutory third-party to this action. Sometime prior to January 6, 2010 the plaintiffs in this action and the companion action settled with ING for minimum policy limits of $200,000.
[30] Rick Aucoin, the solicitor for State Farm swore an affidavit dated January 17, 2012 in response to this motion. In that affidavit he states that on January 2, 2009 he sent a letter to the plaintiff’s lawyer advising that he would respond to any motion to set aside the Dismissal Order and that it was his intention to close his file if the action remained dismissed as of the end of January. According to Rick Aucoin, he did not receive a response to that letter but in August 2009 he was contacted by the plaintiff’s solicitor by telephone inquiring about the possibility of settling the case. Rick Aucoin responded in a letter dated August 13, 2009 in which he clearly stated that because of the Dismissal Order, there was no outstanding action to which State Farm was a party. There was no response to this letter.
[31] The affidavits of Lou Ferro and Rick Aucoin both set out that the next communication between the solicitors was a letter dated January 6, 2010 from the plaintiff’s lawyer advising of the settlement with ING and inquiring as to whether State Farm had any interest in discussing settlement as damages had been crystallized. Consistent with his previously stated position, Rick Aucoin responded to this letter stating that that there was no action outstanding to mediate or settle. Notwithstanding the position that had been clearly articulated by State Farm’s lawyer on three occasions, in a letter dated February 12, 2010 from a Case Manager in the office of the plaintiff’s lawyer to State Farm’s lawyer, the suggestion was made that a meeting be scheduled to discuss settlement of the case. The response to this letter was that the solicitor for State Farm only had authority to discuss the companion action. By implication, the letter made it clear that the previously stated position with respect to the plaintiff’s claim in the present action remained unchanged.
[32] Lastly, from the affidavit of Lou Ferro, it is learned that a letter dated May 10, 2011 from a person identified as Professional Services Liaison in the office of the plaintiff’s lawyer was sent to State Farm’s lawyer inquiring as to whether there was interest in attending a mediation and setting out the names of a number of proposed mediators. There was no response to this letter.
[33] I find that the position taken by State Farm’s lawyer was consistent throughout the period from January 2009 until May 2010, that being that as long as there was a Dismissal Order in the present action there would be no discussions about settlement of the plaintiff’s claim. In spite of this clearly stated position, the office of the plaintiff’s solicitor repeatedly made overtures about the possibility of settling the plaintiff’s claim. I find this conduct demonstrates a disturbing attitude on the part of the plaintiff’s lawyer that the Dismissal Order is an unimportant event and that State Farm would disregard the Dismissal Order and engage in settlement discussions. This is an unreasonable position for the plaintiff’s lawyer to take.
[34] Before leaving this factor I will make brief reference to what occurred in the companion action. The Statement of Claim in the companion action was issued by the same law firm as represents the plaintiff in this action. Pursuant to a Notice of Change of Lawyer dated July 7, 2008, the plaintiff in the companion action appointed Adam K Wagman as her lawyer of record. The companion action was also dismissed by a Registrar’s Order dated December 29, 2008. Counsel for the plaintiff in the companion action moved promptly and obtained an order setting aside the Registrar’s Dismissal Order on January 22, 2009.
[35] No explanation has been provided as to why the plaintiff in the companion action moved immediately to seek and obtain an order setting aside the Registrar’s Dismissal and yet the plaintiff in the present action saw fit to wait approximately 3 ½ years to bring the same motion.
Prejudice to the Defendant
[36] There is no evidence of actual prejudice to the defendant as a result of the delay on the part of the plaintiff to move this action forward or to move promptly to set aside the Dismissal Order. There is no evidence on the present motion that an important witness to the defendant is no longer available but would have been available had the plaintiff moved to the action forward expeditiously. There is no evidence that the defendant refrained from taking steps, such as conducting surveillance, during the period of time between the Dismissal Order and the service of the motion to set aside the dismissal.
[37] The plaintiff points out that the defendant has an open file with respect to the companion action and therefore will suffer no prejudice by having to defend the present action. The plaintiff also relies on the fact that he has been examined for discovery on two occasions. I agree that these factors point towards an absence of prejudice to the defendant.
[38] However in Marché D'Alimentation Denis Thériault Ltée v. Giant Tiger Stores Ltd., 2007 ONCA 695, [2007] O.J. No. 3872, the Ontario Court of Appeal said the following at paragraphs 37 and 38:
Finality, like the avoidance of unnecessary delay, is a central principle in the administration of justice. "The law rightly seeks a finality to litigation" and finality is "a compelling consideration" [citation omitted].
When an action has been disposed of in favour of a party, that party's entitlement to rely on the finality principle grows stronger as the years pass. Even when the order dismissing the action was made for delay or default and not on the merits, and even when the party relying on the order could still defend itself despite the delay, it seems to me that at some point the interest in finality must trump the opposite party's plea for an indulgence. This is especially true where, as in the present case, the opposite party appears to have another remedy available.
[39] In my view, the defendant is entitled to rely on the principle of the finality as a result of the Registrar’s Dismissal Order remaining in place and unchallenged from May 6, 2008 until November 16, 2011. This delay which I find to be inordinate is an appropriate consideration on the issue of prejudice.
Summary and Conclusion
[40] In my opinion, the plaintiff has failed to provide an explanation for the litigation delay. I am not satisfied that the failure to set the action down for trial prior to the date of the Dismissal Order was as a result of inadvertence as opposed to negligence or indeed gross negligence. As was properly conceded, the motion to set aside the Registrar’s Order was not brought promptly. The only factor which could be considered to favour the plaintiff’s position is that of prejudice in that there is no evidence of actual prejudice to the defendant. I find however that there is prejudice to the defendant arising out of the principle of finality.
[41] It follows therefore that having found against the plaintiff on all four Reid factors, the plaintiff’s motion to set aside the dismissal order of May 6, 2008 must fail. The motion is dismissed.
Costs
[42] If the parties are unable to agree on the appropriate disposition as to costs, written submissions are to be submitted. Submissions on behalf of the State Farm are to be delivered to my office in Kitchener within 14 days of the release of this Ruling. Submissions on behalf of the plaintiff are to be delivered to my office in Kitchener within 14 days of the receipt of the defendant’s submissions. Submissions are not to exceed three pages in length exclusive of a Costs Outline and Bill of Costs.
G. E. Taylor J.
Date: February 26, 2014