COURT FILE NO.: CV-09-0527 DATE: 2014-06-03
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
June Mason also known as June Marcellais, Lorna Marcellais, a Minor by her Litigation Guardian June Mason, Jennifer Mason and Nadine Mason,
Plaintiffs
- and -
Superior Airways Limited and John Doe,
Defendants
Counsel: B. Hardick, for the Plaintiffs K. Bedeau, for the Defendant Superior Airways Limited
HEARD: May 1, 2014, at Thunder Bay, Ontario
BEFORE: Mr. Justice F. B. Fitzpatrick
Decision On Motion
[1] This is a motion by the Plaintiffs brought pursuant to rule 37.14 of the Rules of Civil Procedure to set aside the Registrar's Order dismissing this action for delay pursuant to rule 48.14(4). The Plaintiffs also seek to amend the Statement of Claim to substitute the Defendant pilot identified as "John Doe" with the name Jeremy Pardy, pursuant to rules 26 and 5.04 of the Rules of Civil Procedure.
Background
[2] This action arises as a result of an airplane accident, which occurred on November 21, 2007. The action was commenced by Statement of Claim on November 19, 2009. The Statement of Claim alleges that the unidentified Defendant pilot, joined as John Doe, attempted to land the aircraft with the landing gear in the retracted position, causing injuries to the Plaintiff, June Mason. The remaining Plaintiffs bring their claims pursuant to the Family Law Act, R.S.O. 1990 c. F.3. The Defendant airline, Superior Airways Limited ("Superior Airways"), was joined as owner and operator of the aircraft.
[3] On or about April 12, 2010, Superior Airways delivered a Notice of Intent to Defend. Almost a year later, on April 11, 2011, Superior Airways delivered its Statement of Defence.
[4] On April 30, 2012, because two years had passed since the Notice of Intent to Defend was filed, a Status Notice was issued by the Registrar and received by counsel for the Plaintiffs on May 3, 2012. Discoveries were then scheduled to occur in June 2012. A full day of discoveries was conducted on June 14, 2012, although there is a factual dispute as to whether or not discoveries were actually completed. Counsel on this motion could not be precise as to whether or not the plaintiff completed its examination of a representative of Superior on that date.
[5] In any event, on August 28, 2012, a Registrar's Order Dismissing Action for Delay was issued.
Actions post Registrar's dismissal
[6] Despite the fact that the Registrar's order had been issued, counsel for the parties continued to communicate with each other. The parties urge differing interpretations on the meaning of this continued dialogue. Coincidentally, the opposing lawyers on this file both have the last name "White". Accordingly, hereafter I will refer to them simply as "Plaintiffs' counsel" and "Defendant's counsel" respectively.
[7] It is not disputed that on August 29, 2012, Defendant's counsel sent a letter to Plaintiffs' counsel proposing a timetable for the completion of the litigation. Two days later, on August 31, 2012, Plaintiffs' counsel sent a letter back indicating that he intended to bring a motion to restore the action to the trial list. On September 7, 2012, Defendant's counsel replied indicating that he was in agreement with the timetable proposed provided undertakings could be answered by November 30, 2012 and indicating that he looked forward to receipt of the motion to restore the action to the trial list.
[8] On January 4, 2013, Plaintiffs' counsel sent Defendant's counsel a notice of motion, draft order and consent to restore the matter to the trial list.
[9] The material filed on this motion indicated a gap in communication occurred between the January 4, 2013 and the next communication which happened on August 5, 2013. However, following the motion, counsel for the Defendant sought to place before the Court a further affidavit which indicated that there were a couple of phone calls exchanged between counsel in late January 2013 and other letters exchanged later that spring. The moving party objected to this evidence being placed before the court but indicated they would not oppose its admission if the Court was inclined to admit it.
[10] In the normal course, it is only in exceptional circumstances that evidence of this nature should be admitted after argument has been completed. However, in this case, I am admitting the evidence, because it is not disputed for its truth and the evidence gives the Court a complete picture of what transpired between counsel for the parties. I note this is a rare exception.
[11] A supplementary affidavit of Defendant's counsel, sworn May 2, 2014, indicates counsel spoke on the telephone January 22, 2013. In that conversation, counsel for the Defendant proposed that the Plaintiffs move to amend their pleading to add Jeremy Pardy at the same time as they brought the motion to obtain an order setting aside the Registrar's order. Plaintiffs' counsel corresponded again on March 13, 2013, May 7, 2013 and July 3, 2013 asking for payment of disbursements for production of medical records. These letters did not say anything about the motion. On July 30, 2013, Plaintiffs' counsel wrote concerning production of further medical reports but did not mention anything about the motion. Apparently Plaintiffs' counsel sent another letter on August 1, 2013, but this letter was not placed before the Court by either party.
[12] Defendant's counsel's response to all the March through August correspondence was to send an email on August 5, 2013, which rather tersely stated:
"Dear Peter;
We confirm receipt of your most recent correspondence dated July 30 and August 1, 2013. This action was dismissed by the court on August 28, 2012.
Regards
Michael"
[13] The within motion was served in April 2014.
The Law
[14] There is a dispute between the parties as to the applicable test on a motion of the type before the Court to set aside an order of the registrar dismissing an action for delay pursuant to rule 48.14. The Defendant relies on the decisions of the Ontario Court of Appeal in Nissar v. Toronto Transit Commission, 2013 ONCA 361, 115 O.R. (3d) 713 [Nissar], and Faris v. Eftimovski, 2013 ONCA 360, 363 D.L.R. (4th) 111 [Faris]. The Plaintiffs rely on the so-called Reid test, arising from the case Reid v. Dow Corning Corp (2002), 48 C.P.C. (5th) 93 (Sup. Ct.) [Reid], and approved and explained in a number of subsequent authorities from the Ontario Court of Appeal such as Wellwood v. Ontario (Provincial Police), 2010 ONCA 386, 102 O.R. (3d) 555, Scaini v. Prochnicki, 2007 ONCA 63, 85 O.R. (3d) 179 [Scaini], Marché D'Alimentation Denis Thériault Ltée v. Giant Tiger Stores Ltd., 2007 ONCA 695, 87 O.R. (3d) 660, and Aguas v. Rivard Estate, 2011 ONCA 494, 107 O.R. (3d) 142.
[15] In my view, the line of authorities relying on the Reid test is most applicable to this case. Nissar involved the test to restore an action to the trial list pursuant to rule 48.11, and therefore can be distinguished from the present case. Faris dealt with an appeal from a decision of a justice to dismiss an action for delay at a status hearing. The reasoning of Faris is not inconsistent with the Reid test, as Tulloch J. stated at para. 33:
33 Since the purpose of Rule 48 is to enable the court to control the pace of litigation and ensure that disputes are resolved in a time-effective manner, imposing the onus on the plaintiff to show cause why the action should not be dismissed for delay is fair. This court has held that the responsibility to move the action along lies chiefly with the plaintiff. Accordingly, the plaintiff also bears the consequences of conducting its action in a dilatory manner: see Wellwood v. Ontario Provincial Police, 2010 ONCA 386, 102 O.R. (3d) 555, at para. 48.
[16] The Reid test requires a party seeking relief from an order of the Registrar dismissing an action for delay to:
- Explain the litigation delay;
- Lead satisfactory evidence to explain any inadvertence in missing a deadline;
- Bring the motion promptly; and
- Convince the Court there is no prejudice to the opposing party.
[17] The Court of Appeal made it clear in Scaini that it is an error to hold that a moving party must satisfy each of the four factors. The defence argues that relying on Faris, the moving party must satisfy the Court that there is an acceptable explanation for the delay and that if the action was allowed to proceed, the defendant would suffer no non-compensable prejudice.
Discussion
[18] The line of cases following and adopting Reid urge a contextual approach to these kinds of motions. The court has a responsibility to balance the plaintiff's right to have its dispute heard on the merits, with a defendant's legitimate right to have matters proceed in a timely fashion. When a matter has been administratively dismissed, the court must balance the need to ensure the rules are enforced and the need to ensure sufficient flexibility to allow disputes to be resolved on their merits.
[19] In my view, the Plaintiffs have adequately explained what litigation delay occurred in this matter. When compared to other "delay cases" such as Nissar where the delay was seven years, the time that had elapsed from the commencement of the action to the date the Registrar administratively dismissed this action was not significant.
[20] What occurred here was that Plaintiffs' counsel, for no apparent reason, did not schedule a status hearing when the status notice was received from the court in the spring of 2012. Rather, Plaintiffs' counsel focused his efforts on providing an affidavit of documents and then setting up and conducting one day of discoveries. In my view, these efforts were moving the litigation forward. I find this was being done in a manner about which the defendant cannot now legitimately complain.
[21] The litigation was proceeding as of June 2012, two months before the Registrar issued its order. A day of discoveries was completed. The discovery of the Plaintiff was substantially complete. Undertakings were given but have not been answered to date. The parties were also in ongoing discussions concerning the continued progress of the litigation, and in my view, had agreed to a litigation timetable in September 2012, after the order to dismiss was issued.
[22] Once it became apparent the order dismissing had been issued, Defendant's counsel acknowledged a motion to set aside would be forthcoming in a letter he sent on September 7, 2012. The draft materials were served in draft some four months later, January 4, 2013. The delay in serving the draft motion materials and the consent to set the order aside should not be considered a "best practice", but it was not so lengthy as to attract sanction from the court in the context of the litigation as it had proceeded to that point.
[23] In January 2013, counsel for the Defendant did not respond directly to receipt of the motion materials at all. Defendant's counsel made no response indicating the timetable he had agreed to would not be followed as he had changed his mind about facilitating the continuation of the matter until his email of August 5, 2013.
[24] As noted above, the correspondence and conversations that occurred between January 21, 2013 and August 5, 2013 were not placed before the court until after the motion had been argued. During the hearing of the motion, I was left with the impression that Defendant's counsel was silent from early January 2013 until August 5, 2013. On this understanding, at the hearing, counsel for the Defendant argued that the silence of Defendant's counsel was a signal to Plaintiffs' counsel to immediately formally bring his motion and his delay in doing so should count against the Plaintiff in this motion. Even with the benefit of the supplementary affidavit filed, I disagree with this submission by the defence.
[25] In my view, the comments of Tulloch J. in Faris at para. 33 noted above, that "this court has held that the responsibility to move an action along lies chiefly with the plaintiff" cannot be so widely interpreted as to permit a defendant to bear absolutely no responsibility for failing to respond to service of a plaintiff's draft motion materials when a matter has been administratively dismissed. The principle underlying all civil proceedings in Ontario is that matters are to be dealt with on their merits. Administrative dismissal should not be the standard to which our system of justice aspires. The Principles of Professionalism for Advocates published by The Advocates' Society (Toronto: 2009) urges litigation counsel to respond promptly to communications of opposing counsel (p. 11). Having agreed in large part to a litigation timetable, the response of August 5, 2013 by Defendant's counsel was incongruous with the position previously taken. If the defence was going to rely on the Registrar's dismissal order, it should have made that position clear immediately upon receipt of the order. If counsel was unhappy with how quickly things were moving along, they should have clearly and unequivocally set that out and given the other side a reasonable deadline to bring the motion to set the dismissal order aside.
[26] It is clear to me that up to January 2013, Plaintiffs' counsel could legitimately believe that Defendant's counsel would consent to his motion to set aside the order as the parties had agreed to a litigation timetable. This is because of correspondence received in September 2013 expressly agreeing to a timetable with minor changes in dates. It was not appropriate in my view for Defendant's counsel to remain silent on that very important issue, in the face of ongoing correspondence about the matter if his position had changed 180 degrees. In fact, his email of August 5, 2013 should have most clearly set out that change in position, explained it and provided dates which his office would be available to argue the motion.
[27] I accept the explanation of Plaintiffs' counsel that personal difficulties caused the delay in formally bringing the motion once Defendant's counsel sent his August 5. 2013 email. Plaintiffs' counsel's evidence on that issue was not challenged by the Defence. Difficulties such as those experienced by Plaintiffs' counsel can be accommodated by the litigation process balancing all factors including any prejudice to the opposing party.
[28] Accordingly, I find that:
- the Plaintiffs have satisfactorily explained the litigation delay and at all times intended to proceed with the action and were in fact proceeding with the action at the time the Registrar's order was issued;
- Plaintiffs' counsel's inadvertence in not scheduling a status hearing or putting his client in a position where its claim was administratively dismissed has been satisfactorily explained; and
- the delay in the bringing of this motion has been satisfactorily explained.
[29] There remains the issue of prejudice to the Defendant.
[30] There was one paragraph in the responding affidavit of the Defendant dealing with the issue of prejudice. It stated:
- Because the plaintiffs' never amended their statement of claim to name Mr. Jeremy Pardy as a defendant to the Action, it is unlikely that Mr. Pardy will be able to recall many of the details regarding the Incident assuming the claims against him are not dismissed due to the passage of a limitation period. In addition, due to the passage of time, the recollection of all parties concerning the Incident will inevitably be compromised. Furthermore, Ms. Mason's pertinent medical, employment and benefits records may be no longer available."
[31] In Chiarelli v. Weins (2000), 2000 3904 (ON CA), 46 O.R. (3d) 780, 43 C.P.C. (4th) 19, the Court of Appeal at paras. 14 and 15 made it clear that general allegations of prejudice without some detail would not be sufficient to permit a finding of prejudice on these types of motions. In my view, the prejudice evidence put forward by the defence is not sufficient to establish that the defendant will suffer any prejudice if this order is granted. The evidence is weak and speculative.
[32] In conclusion, the plaintiffs have satisfied all four aspects of the Reid test. The motion to set aside the Registrar's order is allowed and the action shall continue.
The Issue of Adding Jeremy Pardy as a Party Defendant
[33] During argument, counsel for the defence conceded that in the event the motion to set aside was allowed, it would not strenuously oppose the Plaintiff's motion to add Jeremy Pardy as a defendant. That was a fair concession by the Defence. In light of my order above, there will be an order permitting the Plaintiffs to amend their claim to add Jeremy Pardy as a defendant and substitute his name in the claim where presently are the words "John Doe". Also, the time for service of the claim will be extended to six months from the date of release of these reasons.
[34] In the event counsel cannot agree on costs, they may make a half hour appointment to address the issue. If the trial coordinator is not contacted within 30 days of the release of these reasons to schedule an appointment, costs will be deemed to have been settled. Counsel may attend by teleconference on the appointment to settle costs. Should counsel wish to make further written submissions in addition to their costs outline previously filed, they will be limited to two pages double spaced to be served at least five days before the appointment.
_______"original signed by"
The Hon. Mr. Justice F.B. Fitzpatrick
Released: June 3, 2014
COURT FILE NO.: CV-09-0527 DATE: 2014-06-03
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
June Mason also known as June Marcellais, Lorna Marcellais, a Minor by her Litigation Guardian June Mason, Jennifer Mason and Nadine Mason,
Plaintiffs
- and -
Superior Airways Limited and John Doe,
Defendants
DECISION ON MOTION
Fitzpatrick J.
Released: June 3, 2014
/mls