Court File and Parties

COURT FILE NO.: C22439/00

DATE: 2014-04-28

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: SHAFIK KARA, IREME KARA, MADATALI KARA and BROTHER’S COLLISION & REFINISHING, Plaintiffs

AND:

ROLAND ARNOLD, HIGHWAY PHARMACY INC., RASHID KESHAVJEE and GULSHAN KESHAVJEE, Defendants

BEFORE: Gray J.

COUNSEL: Paul R. Sweeny, Counsel for the Plaintiffs (Responding Parties)

Kosta Kalogiros, Counsel for the Defendant Roland Arnold (Moving Party)

HEARD: April 22, 2014

ENDORSEMENT

[1] On April 22, 2014, I had before me a contested status hearing. The action was commenced on February 17, 2000, more than 14 years ago. It is a medical malpractice action, and is currently outstanding against only one defendant, Dr. Roland Arnold.

[2] I will first discuss the appropriate legal principles, and then I will discuss the application of those principles to the facts of this case.

[3] Rule 48.14 provides, in part, as follows:

48.14 (1) Unless the court orders otherwise, if an action in which a defence has been filed has not been placed on a trial list or terminated by any means within two years after the first defence is filed, the registrar shall serve on the parties a status notice in form 48C.1 that the action will be dismissed for delay unless, within 90 days after service of the notice, the action is set down for trial or terminated, or documents are filed in according with subrule (10).

(4) The registrar shall dismiss the action for delay, with costs, 90 days after service of the status notice, unless,

(a) the action has been set down for trial or restored to a trial list, as the case may be;

(b) the action has been terminated by any means;

(c) documents have been filed in accordance with subrule (10); or

(d) the judge or case management master presiding at a status hearing has ordered otherwise.

(8) Where a status notice has been served, any party may request that the registrar arrange a status hearing, in which case the registrar shall mail to the parties a notice of the status hearing, and the hearing shall be held before a judge or case management master.

(13) At the status hearing, the plaintiff shall show cause why the action should not be dismissed for delay, and,

(a) if the presiding judge or case management master is satisfied that the action should proceed, the judge or case management master may,

(i) set time periods for the completion of the remaining steps necessary to have the action placed on or restored to a trial list and order that it be placed on or restored to a trial list within a specified time,

(ii) adjourn the status hearing to a specified date on such terms as are just, or

(iii) if the action is an action to which Rule 77 may apply under rule 77.02, assign the action for case management under that Rule, subject to the direction of the regional senior judge;

(iv) make such other order as is just; or

(b) if the presiding judge or case management master is not satisfied that the action should proceed, the judge or case management master may dismiss the action for delay.

[4] Of the many cases furnished to me by counsel, I need refer to only two: 1196158 Ontario Inc. v. 6274013 Canada Ltd. (2012), 2012 ONCA 544, 112 O.R. (3d) 67 (C.A.); and Faris v. Eftimovski (2013), 2013 ONCA 360, 363 D.L.R. (4th) 111 (Ont. C.A.). Those decisions of the Court of Appeal represent a fundamental change in its approach to delay in the processing of civil cases, and particularly the approach to status hearings under rule 48.14.

[5] In 1196158 Ontario Inc., the Court of Appeal dealt with a case where the plaintiff had been given a “lifeline” at an earlier status hearing and then failed to comply with its terms. At a subsequent status hearing, the action was dismissed. In Faris, the Court of Appeal upheld the dismissal of an action that had been dismissed at a status hearing, where no earlier status hearing had been held.

[6] From these two cases, I take the following propositions:

(a) delay in the processing of civil cases is a serious problem;

(b) delay is a problem not only for the litigants but also for the court and for society as a whole, both of which have an interest in ensuring that litigation is resolved with reasonable dispatch;

(c) the onus is on the plaintiff to move litigation forward to its conclusion;

(d) two years, the period referred to in Rule 48.14(1), is a reasonable period for an action to be set down for trial;

(e) at a status hearing, the onus is on the plaintiff to provide a reasonable explanation for any delay, and show that there will be no non-compensable prejudice to the defendant in allowing the action to proceed; - the test is disjunctive and the plaintiff must satisfy both aspects;

(f) if there ever was a perception that a status hearing is simply a management tool to get cases on track, that perception is incorrect;

(g) if there ever was a perception that an action should not be dismissed at a first status hearing, that perception is incorrect.

[7] To that list of propositions, I would add this: the longer the delay, the more cogent the explanation must be. Excuses that might be accepted a short time after the two year period has expired are less likely to be accepted later.

[8] There will be cases that take longer to get to trial. Cases that are very complex are unlikely to be set down for trial within two years. For cases of that sort, counsel will likely explicitly or implicitly agree that the action cannot realistically be set down for trial within two years. In such a case, prudent counsel will undoubtedly confirm such an understanding in writing. However, as a general proposition it is clear that the leisurely pace of litigation, that was formerly almost universal, will no longer be tolerated.

[9] In this case, as noted, the action was commenced in February, 2000. In March, 2001, the action as against the defendants other than Dr. Arnold was dismissed on consent. It was not until April, 2002, more than two years after the action was commenced, that Dr. Arnold served his statement of defence. This was not a good start. Nevertheless, the delay that requires an explanation runs from the date the statement of defence was filed. Thus, the relevant period is about 11 years, from the date the statement of defence was filed until the date of the status notice in May, 2013.

[10] Thereafter, the action meandered.

[11] The defendant’s sworn affidavit of documents was delivered in June, 2003. A draft of the plaintiffs’ affidavit of documents was produced in April, 2004, and the sworn version was not delivered until August, 2006. The examination for discovery of the plaintiffs was first scheduled in January, 2004, and was adjourned a number of times for various reasons and was commenced in December, 2006. The continued examination was rescheduled a number of times, and was finally completed on December 8, 2010. The last written communication received by defendant’s counsel from plaintiffs’ counsel was on December 9, 2010.

[12] There has been no examination for discovery of Dr. Arnold, and it now appears that counsel for the plaintiff does not intend to examine Dr. Arnold.

[13] In the affidavit material filed on behalf of the plaintiff, various reasons are offered for the delay. In part, it is suggested that the delays were consented to, particularly those that related to the postponement of examinations for discovery. In part, it is suggested that some of the delay was the responsibility of the defendant; as an example, the plaintiff says Dr. Arnold had undertaken to transcribe his notes, and it took about two years to do so. In part, the delay is explained by health problems and other misfortunes on the part of the plaintiff and his family. In part, the plaintiff says it had difficulty in lining up experts and obtaining expert reports.

[14] I do not accept that these explanations, individually or cumulatively, constitute an acceptable explanation for the delay.

[15] This is not a case where the defendant has sat back and somehow lulled the plaintiffs into a false sense of security. There are many letters from counsel for the defendant that signal the defendant’s desire that the action be moved along. Without being exhaustive, I refer to letters dated July 8, 2003; July 18, 2003; August 22, 2003; May 3, 2004; February 2, 2005; May 8, 2008; March 17, 2009; and August 13, 2009.

[16] As noted earlier, the last correspondence from counsel for the plaintiff to counsel for the defendant was on December 9, 2010. From that date until service of the status notice in May, 2013, there was no contact from the plaintiff.

[17] Counsel for the plaintiff explains the last period of delay by suggesting that it was necessary to secure experts and expert reports. One expert refused, at the last minute, to examine the plaintiff or provide a report. Counsel says she did not serve the expert reports in a timely way because she made a strategic decision not to do so. Little explanation is offered as to why it took so long to get expert reports.

[18] As stated earlier, I do not regard the explanations given by the plaintiff as satisfactory. They are entirely inadequate to explain an 11-year delay after the delivery of the statement of defence.

[19] Counsel for the plaintiff says there is no non-compensable prejudice to the defendant. The death of one of the plaintiff’s treating physicians occurred in 2007, and thus he would not have been available for the trial even if the matter had been pursued more diligently. Furthermore, it is argued that the case is not one that depends on credibility. In essence, it will depend on expert opinion, which is not affected by delay.

[20] I am not willing to entirely accept the plaintiffs’ argument that there is no non-compensable prejudice. Even in a case where credibility is not as important, nevertheless, with the passage of time, memories fade and evidence becomes stale. However, for the purpose of my analysis I am willing to assume that the plaintiff has shown that there will be no significant actual prejudice if the matter is allowed to proceed. However, that does not change my decision.

[21] As Sharpe J.A. stated in 1196158 Ontario Inc., at para. 32:

Actual prejudice or the lack thereof is an important factor to consider in cases of dismissal for delay: Hamilton, at para. 33. However, it is certainly not the law that an action cannot be dismissed for delay at a rule 48.14 status hearing without proof of actual prejudice.

[22] At para. 33, Sharpe J. A. stated:

The absence of actual prejudice does not automatically or inevitably trump the values of timeliness and efficiency. At some point, a party who has failed to respect the rules designed to ensure timely and efficient justice loses the right to have its dispute decided on the merits. If that were not the case, the rules and the timelines they impose would cease to have any meaning and any hope of ensuring timely and efficient justice would be seriously jeopardized.

[23] And, at para. 34 he stated:

As judgments of this court and the Superior Court recognize, if an action could not be dismissed for delay unless there was proof of actual prejudice, time lines would become meaningless.

[24] As noted earlier, the obligation of the plaintiff is to furnish a satisfactory explanation for the delay, and demonstrate that there is no non-compensable prejudice to the defendant. The test is disjunctive. Thus, even if there is no prejudice, a satisfactory explanation for the delay must be offered. As I stated earlier, it is my view that the longer the delay the more cogent the explanation must be. In this case, the explanation lacks cogency, and is insufficient to explain a delay of 11 years. As stated by Sharpe J.A. in 1196158 Ontario Inc., at para. 35:

It is surely not too much to expect a party to either set a matter down for trial within two years of the close of pleadings or be able to offer a reasonable explanation for why that is not possible to do so.

[25] In this case, the explanation is not reasonable. The action is dismissed.

[26] I will entertain brief written submissions with respect to costs, not to exceed three pages, together with a costs outline. Counsel for the defendant shall have five days to file submissions and counsel for the plaintiffs shall have five days to respond. Counsel for the defendant shall have three days to reply.

Gray J.

Date: April 28, 2014