Andersson et al. v. Charlton
[Indexed as: Andersson v. Charlton]
Ontario Reports
Ontario Superior Court of Justice,
Shaw J.
April 28, 2014
120 O.R. (3d) 712 | 2014 ONSC 2614
Case Summary
Civil procedure — Abandonment — Plaintiffs' solicitor commencing personal injury action within limitation period and providing defendant's insurer with copy of notice of action and statement of claim — [page713] Solicitor failing to serve defendant as he wrongly assumed that insurer would accept service — Solicitor taking no action after becoming aware that registrar had dismissed action as abandoned as he was going through personal and professional turmoil — Defendant not prejudiced by delay of more than two years in bringing motion to set aside dismissal order — Dismissal order set aside and time for service of notice of action and statement of claim extended.
The plaintiffs' then-solicitor commenced an action for damages arising from the death of a pedestrian in a motor vehicle accident. The action was commenced within the limitation period. The solicitor provided the defendant's insurer with a copy of the notice of action and statement of claim, but did not serve the defendant as he wrongly assumed that the insurer would accept service. The solicitor took no action after becoming aware that the registrar had dismissed the action as abandoned, as he was going through personal and professional turmoil at the time and did not want to give the deceased's mother any more bad news. Ultimately, the plaintiffs retained new counsel and brought a motion to set aside the dismissal order.
Held, the motion should be granted.
The plaintiffs at all times intended to proceed with the action. While the delay of more than two years in moving to set aside the order could not be characterized as moving promptly, the explanation provided by the solicitor was genuine and the defendant was not prejudiced by the delay. It would be just and fair to set aside the dismissal order. The plaintiffs were also granted an extension of time for service of the notice of motion and statement of claim.
Cases referred to
Finlay v. Van Paassen (2010), 101 O.R. (3d) 390, [2010] O.J. No. 1097, 2010 ONCA 204, 266 O.A.C. 239, 318 D.L.R. (4th) 686, 188 A.C.W.S. (3d) 675; Heaps Estate v. Jesson, 2007 12892 (ON SC), [2007] O.J. No. 1478, 47 C.C.L.I. (4th) 271, 42 C.P.C. (6th) 334, 156 A.C.W.S. (3d) 1003, 2007 CarswellOnt 2322 (S.C.J.); Scaini v. Prochnicki (2007), 85 O.R. (3d) 179, [2007] O.J. No. 299, 2007 ONCA 63, 219 O.A.C. 317, 39 C.P.C. (6th) 1, 154 A.C.W.S. (3d) 1075
Statutes referred to
Family Law Act, R.S.O. 1990, c. F.3 [as am.]
Rules and regulations referred to
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 16.04(1), 37.14, 48.15(1)
MOTION to set aside an order dismissing an action as abandoned.
Laird Scrimshaw, agent for David W. Dubinsky, counsel for plaintiffs.
Defendant not appearing on this motion.
Paul Ratcliffe, for Royal & SunAlliance Insurance Co. of Canada, a non-party. [page714]
[1] SHAW J.: — This is a motion by the plaintiffs for an order setting aside the order of the registrar, dated February 3, 2011, dismissing the action as abandoned.
[2] This action relates to the death of 14-year-old Spencer John-Erick Andersson-Bjorkland, who was a pedestrian killed in a motor vehicle accident on June 13, 2008. He was hit by a car driven by the defendant, Thomas Charlton. The plaintiffs bring their claims under the Family Law Act, R.S.O. 1990, c. F.3.
[3] In October 2008, the solicitor for the plaintiffs sent written notice of the plaintiffs' claims to both the defendant and the defendant's insurer, Royal & SunAlliance.
[4] The insurer responded by letter dated October 31, 2008, advising that there was coverage of $1 million under the policy and that it would respond to the claim on behalf of its insured, Mr. Charlton.
[5] On June 11, 2010, the solicitor commenced an action on behalf of the plaintiffs by way of a notice of action. This was followed by a statement of claim dated July 9, 2010. The action was commenced within two years of the accident.
[6] The notice of action and statement of claim were not served on the defendant.
[7] On October 5, 2010, approximately four months after the notice of action was issued, the solicitor wrote to the insurer enclosing a copy of the notice of action and the statement of claim. He requested the insurer to confirm that it did not require him to serve the documents personally upon the defendant. He advised that a statement of defence was not required at that time and that he would advise if and when one was necessary.
[8] The next letter in the motion record is from a claims examiner at Royal & SunAlliance dated January 25, 2011. The writer states that she had written to the solicitor on October 31, 2008 and had received no response. She also stated that she had left numerous messages with his office, with no response. She said she understood that the plaintiffs would pursue the matter. She asked the solicitor to provide her with a copy of the affidavit of service relating to his clients' claims.
[9] The solicitor deposes that he did not receive a response to his letter of October 5, 2010 to the insurer before receiving the insurer's letter of January 25, 2011 on January 31, 2011. He wrote back to Royal & SunAlliance by letter dated February 1, 2011. He referred to his letter of October 5, 2010 and indicated that he had not received a reply. He said that because there was no response, he had not served the defendant and that it was now too late to do so. He asked the insurer to advise if it would acknowledge that service had been effected and to confirm that [page715] it would be retaining counsel to respond to the claim. The solicitor deposes that he did not receive a response to his letter of February 1, 2011.
[10] On February 3, 2011, the action was dismissed by registrar's order.
[11] The solicitor deposes that because he assumed that under the circumstances service on the defendant would not be necessary, he did not give sufficient attention to the passage of time and the deadline for service. As a result, he deposes, he inadvertently let the date for service slip by.
[12] The solicitor also deposes to a number of personal difficulties that he was experiencing in his practice and in his personal life, which need not be detailed but which I accept were genuine and which adversely affected the attention that he gave to this matter.
[13] He deposes that when he received the notice of dismissal he did not know what to do and, with the other stresses in his life, he froze on the issue. He said that he could not bear to give his client, the mother of the deceased, more bad news in light of the burden she was already carrying. He says that as a result, the matter simply sat. At some point, new counsel was retained by the plaintiffs to deal with the matter, but nothing was done. The solicitor then retained counsel, Mr. Scrimshaw, to act as his agent and to bring the within motion.
[14] On December 12, 2013, McCartney J. granted an order allowing substituted service on the insurer of the within motion to set aside the registrar's order.
[15] Counsel for the insurer attended on the hearing of the motion before me. He advised that the insurer was taking no position on the matter. The insurer has filed no responding materials.
[16] In support of the motion, in addition to the solicitor's affidavit, there is an affidavit from the deceased's mother, deposing that she has always intended to proceed with the action. There are also affidavits from three eyewitnesses to the accident, together with their written statements given to the solicitor in 2008. They indicate that they are available to testify in the action. There is also an affidavit from a private investigator who has located another witness to the accident who resides in Thunder Bay.
[17] The defendant was charged criminally as a result of the accident. A transcript of the criminal trial proceedings has been prepared. Exhibits were entered at the criminal trial, including a book of photographs and a diagram of the accident scene. These exhibits are available. Four police officers testified. [page716]
Discussion
[18] Rule 48.15(1) [of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194], under which the registrar dismissed the action, provides:
48.15(1) The registrar shall make an order dismissing an action as abandoned if the following conditions are satisfied, unless the court orders otherwise:
More than 180 days have passed since the date the originating process was issued.
None of the following has been filed:
i. A statement of defence.
ii. A notice of intent to defend.
iii. A notice of motion in response to an action, other than a motion challenging the court's jurisdiction.
The action has not been disposed of by final order or judgment.
The action has not been set down for trial.
The registrar has given 45 days notice in Form 48E that the action will be dismissed as abandoned.
[19] Rule 37.14 provides that a party who has been affected by an order of a registrar may move to set aside the order.
[20] In Finlay v. Van Paassen (2010), 101 O.R. (3d) 390, [2010] O.J. No. 1097, 2010 ONCA 204, Laskin J.A., writing for the court stated, at para. 25:
In Marché d'Alimentation Denis Thériault Ltée v. Giant Tiger Stores Ltd. (2007), 2007 ONCA 695, 87 O.R. (3d) 660, [2007] O.J. No. 3872 (C.A.), at para. 12, this court approved four factors to be considered on a motion to set aside an order dismissing an action for delay:
The Master applied the four-pronged test described in Reid v. Dow Corning Corp. (2001) 11 C.P.C. (5th) 80 at para. 41 (Ont. S.C.J.), rev'd on other grounds 48 C.P.C. (5th) 93 (Ont. Div. Ct.):
(1) Explanation of the Litigation Delay: The plaintiff must adequately explain the delay in the progress of the litigation from the institution of the action until the deadline for setting the action down for trial as set out in the status notice. She must satisfy the court that steps were being taken to advance the litigation toward trial, or if such steps were not taken to explain why . . . . If either the solicitor or the client made a deliberate decision not to advance the litigation toward trial then the motion to set aside the dismissal will fail.
(2) Inadvertence in Missing the Deadline: The plaintiff or her solicitor must lead satisfactory evidence to explain that they always intended to set the action down within the time limit set out in the status notice, or request a status hearing, but failed to do so through inadvertence. In other words the penultimate dismissal order was made as a result of inadvertence.
(3) The Motion is Brought Promptly: The plaintiff must demonstrate that she moved forthwith to set aside the dismissal order as soon as the order came to her attention.
(4) No Prejudice to the Defendant: The plaintiff must convince the court that the defendants have not demonstrated any significant prejudice in presenting their case at trial as a result of the plaintiff's delay or as a result of steps taken following the dismissal of the action.
[21] The Court of Appeal, however, makes it clear that it is an error to hold that the moving party must satisfy each of the four factors. At para. 27, Laskin J.A. refers to Scaini v. Prochnicki (2007), 2007 ONCA 63, 85 O.R. (3d) 179, [2007] O.J. No. 299 (C.A.):
. . . There, Goudge J.A. rejected as too "rigid" the notion that to set aside a registrar's dismissal order, a moving party must satisfy each factor. Instead, he favoured a "contextual" approach in which the court weighs all relevant considerations to determine the result that is just:
More importantly, I do not agree that the case law reviewed in Reid, supra, yields the proposition that an appellant must satisfy each relevant criterion in order to have the registrar's order set aside. None of the cases referred to say so expressly and several proceed on a more contextual basis. For example, in Steele v. Ottawa-Carleton (Regional Municipality), [1998] O.J. No. 3154 (Gen. Div.) Master Beaudoin, at para. 17, described the guiding principle in deciding whether to set aside a rule 48.14 dismissal by the registrar as follows:
Ultimately, the Court will exercise its discretion upon a consideration of the relevant factors and will attempt to balance the interests of the parties.
I agree with Master Beaudoin.
In my view, a contextual approach to this question is to be preferred to a rigid test requiring an appellant to satisfy each one of a fixed set of criteria. The latter approach is not mandated by the jurisprudence. On the other hand, the applicable rules clearly point to the former. In particular, the motion to set aside the registrar's order dismissing the action for delay engages rule 37.14(1)(c) and (2). The latter invites the court to make the order that is just in the circumstances. A fixed formula like that applied by the motion judge is simply too inflexible to allow the court in each case to reach the just result contemplated by the rules.
[22] Laskin J.A., at para. 28, directs that a motion judge must engage in the "weighing exercise" set out by Goudge J.A. He describes the issue of prejudice as "invariably . . . a key consideration on a motion to set aside a dismissal order".
[23] Also, at para. 33, Laskin J.A. states:
In my view, on a motion to set aside a dismissal order, the court should be concerned primarily with the rights of the litigants, not with the conduct of their counsel. As Sharpe J.A. noted in Marché at para. 28, "The law will not ordinarily allow an innocent client to suffer the irrevocable loss of the right to proceed by reason of the inadvertence of his or her solicitor." Sharpe J.A. went on to recognize that the situation may be different where the lawyer's conduct is not inadvertent but deliberate. In the case before us, however, the conduct of Finlay's law firm was not deliberate, which affords a further basis to call into question whether the motion judge's decision was just: see Chiarelli v. Wiens [(2000), 2000 3904 (ON CA), 46 O.R. (3d) 780, [2000] O.J. No. 296, 2000 CarswellOnt 280 (Ont. C.A.)].
[24] In my view, after weighing all of the relevant factors, the just result in this case is to set aside the registrar's dismissal order.
No Prejudice to the Defendant
[25] It is most significant that on the evidence before me there is no discernible prejudice to the defendant in granting the order. The defendant and his insurer were put on written notice of the plaintiffs' claims approximately four months after the accident. Shortly thereafter, the insurer acknowledged that there was coverage under the defendant's policy and that it would respond to the claim on behalf of its insured. The action was commenced within the limitation period. The insurer was provided with a copy of the notice of action and statement of claim prior to the expiry of the six months for service on the defendant. In January 2011, the claims examiner for the insurer wrote that she understood that the plaintiffs would pursue the action.
[26] Details of the accident were canvassed at the defendant's criminal trial in January 2011, and the transcript of that trial is available. Three eyewitnesses to the accident have filed affidavits in support of the motion to advise of their availability. A fourth witness is residing in Thunder Bay. I expect that the police officers who investigated the accident will likely be available. Photographs and police diagrams of the accident site are available. This is a fatality. Matters such as defence medical examinations and surveillance are not relevant considerations. The insurer, who has been served with this motion and who is represented by counsel on the motion, as a non-party, takes no position on the motion. It does not allege that it or its insured has suffered any prejudice.
Explanation of the Litigation Delay
[27] I am satisfied that the plaintiffs at all times intended to proceed with this action. The action was started within two years of the accident. The mother of the deceased deposes that she was under the impression that the solicitor was in timely contact with the defendant's insurer and that the matter was proceeding as it normally would. When she saw that there was no progress, she consulted another lawyer. It was only then that she became aware to her surprise and disappointment that the action had been dismissed by the registrar.
[28] I am also satisfied, from the correspondence from the solicitor and from the insured, that the solicitor never made a deliberate decision not to advance the litigation. The registrar's order would have come about because more than 180 days had passed since the notice of action was issued and no defence had been filed. The solicitor can be criticized for not following up on this and for not responding to the notice of impending dismissal which would have been sent by the registrar. However, the solicitor had not abandoned the action. He had assumed, wrongly as it turned out, that the insurer would accept service and, in October 2010, he had expressly waived any requirement that the insurer file a statement of defence, presumably with a view to future discussions of possible settlement. The failure to move the litigation along was an error, but not deliberate.
The Motion is Brought Promptly
[29] This is the most difficult factor facing the plaintiffs. The solicitor became aware of the registrar's dismissal in early 2011. This motion was filed in November 2013, more than two years later. However, although one cannot characterize this as moving promptly, I weigh this factor in the context of the other considerations, especially the fact that there is no prejudice to the defendant, and in the context of the explanation given by the solicitor as to the personal turmoil into which his life had fallen, professionally and personally. I accept as genuine his explanation that these difficulties, and the embarrassment and anxiety he faced after the dismissal came to his attention, froze his ability to move more quickly. There was also delay when a new solicitor temporarily took on the case and then decided not to pursue it. Once the counsel who is acting as agent for the solicitor took on this matter, the motion was brought on a timely basis.
[30] As noted by Dunn J. in Heaps Estate v. Jesson, 2007 12892 (ON SC), [2007] O.J. No. 1478, 2007 CarswellOnt 2322 (S.C.J.), at para. 11, dealing with a motion to extend time for service of a statement of claim, the just resolution of a claim in which a fatal injury has occurred is important and should not be lightly discarded.
[31] In my view, it would be just and fair to set aside the order of the registrar dismissing this action and an order shall issue accordingly. [page720]
[32] The plaintiffs also request an order extending the time for service of the notice of action and statement of claim and an order that service be effected by substituted service upon the insurer. These requests are not contained in the notice of motion before me. I am prepared to extend the time for service. Otherwise, the order to set aside the registrar's order will be of no practical effect. The evidence in support of the motion setting aside the dismissal order is the same evidence that would be material on a motion for an order extending the time for service. However, the evidence on the within motion does not, in my view, address the test for an order for substituted service under rule 16.04(1). The plaintiffs must show that all reasonable efforts have been made to locate and serve Mr. Charlton before substituted service on his insurer may be ordered. I appreciate that McCartney J. ordered substituted service of the within motion by service on the insurer. However, the evidence that was before McCartney J. is not before me on this motion. An order shall go extending the time for service for a period of six months from the date of the release of these reasons. This is without prejudice to the right of the plaintiffs to bring a motion for substituted service on appropriate materials.
[33] There shall be no order for costs.
Motion granted.
End of Document