COURT FILE NO.: CV-10-402872

DATE: 2014/02/27

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: JOUNGKWANG LEE, Plaintiff, Moving Party

AND:

FUTURE BAKERY LIMITED et al. , Defendants, Responding Parties

BEFORE: MASTER RONNA M. BROTT

COUNSEL: Joungkwant Lee, Self-represented Plaintiff

Monty Verlint, Counsel for the Defendants

HEARD: January 22, 2014

ENDORSEMENT

[1] This is a motion by the plaintiff to set aside the Registrar’s Order of Dismissal dated September 17, 2012.

[2] The Statement of Claim was issued on May 11, 2010. When the claim was issued, the plaintiff, Joungkwang Lee (“Lee”) was represented by counsel. Mr. Lee filed a Notice of Intention to Act in Person on December 2, 2010 and has been self-represented since then. In January 2012 Mr. Lee enrolled in a paralegal course and has some basic understanding of the legal process.

[3] Mr. Lee was a delivery driver for Future Bakery Limited (“Future Bakery”) until his cessation of employment in March 2010. He claims damages for wrongful dismissal, mental distress and intentional infliction of mental suffering. He has also claimed against Borys Wrzesnewskyj, an alleged director of Future Bakery for inducing breach of contract and intentional infliction of mental suffering.

[4] A Statement of Defence and Counterclaim was delivered on July 14, 2010. Future Bakery alleges that the plaintiff voluntarily resigned from his employment when he provided notice of resignation and refused to accept an alternative delivery route that had been offered to him. Alternatively, the defendant pleaded that there was just cause for termination by the plaintiff’s receipt of unauthorized commissions, and in this regard, the defendant commenced a counterclaim.

[5] A Reply and Defence to Counterclaim was delivered on December 20, 2010.

[6] On April 4, 2010 the plaintiff applied for employment insurance benefits. By decision dated June 11, 2010 the plaintiff was denied employment insurance benefits on the basis that the Plaintiff did not have just cause to voluntarily leave his employment.

[7] The Plaintiff appealed his denial of employment insurance benefits to the Board of Referees. By decision dated September 8, 2010 the Board of Referees dismissed the plaintiff’s appeal and found that the Plaintiff either voluntarily left his employment at Future Bakery or alternatively he engaged in wilful misconduct with respect to his conduct relating to commissions.

[8] On January 24, 2011 the Plaintiff further appealed the Board of Referee’s decision of denial of employment insurance benefits to the Umpire. The appeal was heard on November 18, 2011 and by decision dated December 2, 2011 Mr. Lee’s appeal was dismissed.

[9] On February 21, 2012 the Plaintiff served a Notice of Discontinuance wholly discontinuing the within action against all Defendants.

[10] On February 22, 2012 the Plaintiff filed an application for judicial review of the Umpire’s decision in the Federal Court of Appeal.

[11] The Superior Court mailed a Status Notice dated June 7, 2012 wherein all parties were advised that the action would be dismissed for delay with costs within 90 days unless the parties took certain steps to ensure the continuation of the proceedings. No Status Hearing was requested by the Plaintiff. No timetable was agreed to by the parties. On September 17, 2012 the within action was dismissed for delay by the Registrar.

[12] On September 19, 2012 the Federal Court of Appeal dismissed Mr. Lee’s application finding that there was “no reviewable error” with respect to the Umpire’s findings. Mr. Lee filed the within motion on September 27, 2012.

LAW

[13] Reid v Dow Corning Corp [2001]O.J. No. 2365 (S.C.J. – Master), reversed on other grounds [2002] O.J. No. 3414 (Div. Ct.) (“Reid”), sets out the relevant factors to be considered in determining whether a Registrar’s Dismissal Order should be set aside.

(1) Explanation of 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 lawyer or the Plaintiff made a deliberate decision not to advance the litigation toward trial then the motion to set aside the dismissal will fail.

(2) Inadvertence in Missing the Deadline: The Plaintiff or her lawyer 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.

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

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

[14] Courts have held that the evaluation of the factors should be made on a contextual basis to determine the Order that is most just in the circumstances of each case. It is not necessary that a Plaintiff satisfy all four of the Reid factors to succeed on a motion to set aside a Dismissal Order.

Scaini v. Prochnicki, 2007 ONCA 63, [2007] 85 O.R. (3d) 179 (ONCA)

Marché D’Alimentation Denis Theriault Ltee et al.v. Giant Tiger Stores Ltd., (2007), 2007 ONCA 695, 87 O.R. (3d) 660 (ONCA)

Finlay v. Van Paassen, 2010, ONCA 204

Wellwood v. Ontario Provincial Police, 2010, ONCA 204

Aguas v. Rivard Estate, 2011, ONCA 494

Vaccaro v. Unifund, 2011 ONSC 5318

Explanation of Litigation Delay

[15] The parties exchanged Affidavits of Documents by July 2011 and a mediation was held in October 2011. Since then, the Plaintiff has taken no steps to move this action forward.

[16] In February 2012 Mr. Lee took the deliberate step of serving (but not filing) a Notice of Discontinuance of this action. It would appear that his efforts were focused on pursuing the process (and appeals) to obtain employment insurance benefits. Further, it was only when he reached a dead end after the dismissal by the Federal Court of Appeal of his application for judicial review in September 2012, that he turned his mind to this action and brought this motion to set aside the Order of Dismissal of the action.

[17] I find that the Plaintiff did make a deliberate decision to not advance this proceeding towards trial. He took the positive step of serving a Notice of Discontinuance.

[18] Further, the Plaintiff has failed, in his Affidavit sworn June 19, 2013 to explain the delay in the progress of the litigation from the institution of the action to the date by which the action was to be set down for trial.

Inadvertence in Missing the Deadline

[19] The plaintiff alludes to not having received the Status Notice but confirms receipt of the Order of Dismissal of the action, both of which were sent to the same address.

[20] There is no evidence on this motion to establish that Mr. Lee missed the deadline to set the action down for trial through accident or inadvertence. Accordingly the plaintiff has failed to meet the onus of demonstrating that he always intended to set the action down but failed to do so through inadvertence.

Was the Motion Brought Promptly

[21] The defendant does not dispute that the Plaintiff brought this motion within a reasonable time of receiving the Dismissal order.

Prejudice to the Defendant

[22] The limitation period expired in March 2012, two years following Mr. Lee’s cessation of employment at Future Bakery. Accordingly, there is a presumption of prejudice against the defendant.

[23] The Court of Appeal in Wellwood v Ontario (Provincial Police), supra, held that the Plaintiff must lead evidence to rebut the presumption of prejudice. The Plaintiff at paragraph 38 of his Affidavit sworn June 19, 2013 states that “there is no prejudice to the defendant in setting the Order aside” but he provides no evidence of why the defendant might not suffer prejudice. For example, the plaintiff has put forth no evidence that the defendant has kept its records, that all critical witnesses are available or any other evidence whatsoever. I find that the plaintiff has failed to rebut the presumption of prejudice.

[24] Further, there is evidence that the defendants relied on the Notice of Discontinuance, thinking that the action was at an end. This sense of finality is recognized in the caselaw as an important consideration.

CONCLUSION

[25] For a Registrar’s Order of Dismissal to be set aside, it is not necessary that the plaintiff meet all four Reid factors but the Court must make the Order that is most just in the circumstances. On the evidence before the court on this motion the plaintiff has failed to satisfy three of the four Reid factors. The defendants conceded the fourth factor.

[26] Most significantly, the plaintiff in February 2012 actually put his mind to these proceedings after doing nothing for approximately six months and took the step to wholly discontinue the proceedings. From then until he brought this motion he did nothing to advance the litigation, yet at the same time, pursued his appeal of employment insurance benefits. It would accordingly be unjust to the defendants to have them be lulled into a false sense of security that this action is at a close, only to then, almost two years later, have the action be revived.

ORDER

[26] The Plaintiff’s motion to set aside the Registrar’s Order dismissing this action dated September 17, 2012 is hereby dismissed.

Costs

[27] In the event that the defendant seeks its costs on this motion, counsel shall within 30 days deliver brief (1-2 pages) written costs submissions together with a Costs Outline to the plaintiff (and to the court) and the plaintiff shall respond within 30 days thereafter. Reply costs submissions require leave.

MASTER RONNA M. BROTT

Date: February 27, 2014.