Superior Court of Justice – Ontario

WODZYNSKI v. COSTA LAW FIRM

Court File No.: CV-11-434712 Citation: 2014 ONSC 3429 Heard: June 5, 2014

Counsel: Plaintiff appearing in person Susan Sack for the defendants

Endorsement

Master R.A. Muir –

[1] This endorsement is in relation to a contested status hearing at which the plaintiff was required to show cause why her action should not be dismissed for delay pursuant to Rule 48.14(13) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the "Rules").

[2] This is a professional negligence claim. The defendants are lawyers. They represented the plaintiff for a period of time in connection with certain matrimonial proceedings. The plaintiff is acting for herself. She claims, among other things, damages for breach of contract and negligence. The defendants deny the plaintiff's allegations. Of course, on this status hearing I am not prepared to make any findings with respect to the merits of the plaintiff's claims.

[3] Rule 48.14(13) provides as follows:

48.14(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] The applicable test to be applied on a contested status hearing is set out in the decision of the Court of Appeal in Khan v. Sun Life Assurance Co. Of Canada, 2011 ONCA 650 at paragraph 1:

[T]he appellant [plaintiff] bore the burden of demonstrating that there was an acceptable explanation for the involved litigation delay and that, if the action were allowed to proceed, the respondent [defendant] would suffer no non-compensable prejudice.

[5] The test is conjunctive. The presiding judge or case management master may still dismiss the plaintiff's action even in situations where the delay has been satisfactorily explained or the plaintiff has demonstrated that the defendant would not be prejudiced. In 1196158 Ontario Inc. v. 6274013 Canada Ltd., 2012 ONCA 544, the Court of Appeal described the Khan test as follows at paragraph 32:

The test is conjunctive, not disjunctive. Even if the plaintiff can provide a satisfactory explanation for the delay, the action will be dismissed if there would be prejudice to the defendant. And if the plaintiff is not able to provide a satisfactory explanation for the delay, it is still open to the judge to dismiss the action, even if there is no proof of actual prejudice to the defendant.

[6] Rule 48.14(13)(b) provides that the presiding judicial officer at a status hearing may dismiss the action for delay. The Court of Appeal has held that it is "open to the judge to dismiss the action" [emphasis added]. The court's decision is therefore a discretionary one. However, the Court of Appeal has recently confirmed the test to be applied, as set out in Khan and 1196158 Ontario Inc., above and specifically emphasized that a plaintiff is responsible for moving an action forward and it is the plaintiff who must bear the consequences of conducting his or her action in a dilatory manner. See Faris v. Eftimovski, 2013 ONCA 360 at paragraph 33.

[7] These are the factors and principles I have followed in determining the issues before me on this status hearing. Having done so, I have come to the conclusion that the plaintiff's action should be allowed to continue.

[8] I have considered the evidence and the submissions of counsel for the defendants and the plaintiff in person. On balance, I am satisfied that the plaintiff has provided an acceptable explanation for the litigation delay.

[9] The plaintiff has served her affidavit of documents. It may not be as complete as the defendants would like but no motion has been brought by the defendants seeking a further and better affidavit of documents. I note that the defendants' served a supplementary affidavit of documents as late as June 28, 2013. Presumably their production was not complete prior to that date.

[10] I accept the plaintiff's argument that the delay with this action to date can be partly explained by the ongoing appeals related to the matrimonial litigation. They were not finally resolved until March 2013. The ultimate outcome of the appeal would have had some impact on this litigation and would have been a preoccupation for the plaintiff. I also accept the plaintiff's evidence that she has been hampered by her financial circumstances and her inability to retain a lawyer. She is acting for herself and English is not her first language. Some allowance must be made for such factors. Finally, I accept the evidence from the plaintiff with respect to her medical issues. They would appear to support her assertion that her health has prevented her from dealing with this matter as quickly as she should have.

[11] This is not a situation where a plaintiff has done nothing to advance her claim. The plaintiff has been in regular contact with counsel for the defendants. She clearly intends to pursue this claim. In my view, the plaintiff has provided a satisfactory explanation for the delay.

[12] I am also of the view that the plaintiff has met her onus with respect to prejudice. Documents have been exchanged. Witnesses are available (the plaintiff and Ms. Bednarska). I do not accept the defendants' assertion that potential harm to the reputation of the defendant lawyers constitutes the kind of prejudice the court should be concerned with on a status hearing. The decisions of the Court of Appeal make it clear that the issue is prejudice in terms of the inability of a party to defend itself at trial. See Faris at paragraph 37. If I were to accept the defendants' argument, then every professional who is sued for negligence would automatically establish actual prejudice simply by the fact of being sued. I reject that submission. I have read the unreported decision of Justice Herold in Gravelle v. Grigoras, (13 September 2012), Thunder Bay CV-09-0550 (Ont. S.C.). I note that Justice Herold's finding of actual prejudice on this basis was not a necessary part of his decision as he had also found that the plaintiff had failed to adduce any evidence to rebut the presumption of prejudice. See page 15. I also note that the decision of the Court of Appeal in upholding Gravelle only makes reference to the court's finding of the plaintiff's failure to rebut the presumption of prejudice. See Gravelle v. Grigoras, 2013 ONCA 339 at paragraphs 3 and 4.

[13] I understand the defendants' frustration with the plaintiff's lack of familiarity with the litigation process. However, it is my view that the appropriate solution is not the sledgehammer of a dismissal order. A timetable order is an effective remedy in these circumstances. If further default occurs, the defendants will have the remedies available to them for a breach of a court order. The plaintiff has proposed a timetable and appears ready to accept that this action must now proceed at an accelerated pace.

[14] I am therefore not prepared to dismiss this action. An order will go approving the timetable filed with the court and initialed by me.

Master R.A. Muir

Date: June 5, 2014