ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: Milton 711/09
DATE: 2014-06-18
B E T W E E N:
Associated Paving and Materials Ltd.
M. O’Connor, for the Plaintiff
Plaintiff
- and -
Pylon Paving (1996) Inc.
A. Conte, for the Defendant
Defendant
HEARD: March 12, 2014
RULING ON MOTION TO SET ASIDE DISMISSAL
WEIN, J.
THE PROCEEDINGS
[1] The Regional Municipality of Halton required paving at its Burloak water purification plant, in September 2007. The paving materials were supplied by the Plaintiff, Associated Paving, and the work was done by the defendant, Pylon Paving (“Pylon”). The work was found to be unacceptable and the general contractor refused to pay. Consequently, Pylon refused to pay Associated Paving, claiming that the asphalt supplied was deficient. Associated Paving brought a construction lien action for payment of its materials as supplied.
[2] Probably because of the ineptness of the plaintiff’s in-house counsel, nothing occurred on the file for about 20 months. Eventually, Pylon obtained an ex-parte Order under s. 46 of the Construction Lien Act, dismissing the action. It was another year and a half before the problems with in-house counsel were discovered by Associated Paving, and the motion to set aside the dismissal was brought. An additional year has passed, through no one’s fault, before the matter was brought on for hearing.
[3] Associated Paving asserts that the dismissal of the action occurred because in-house counsel had not set the matter down for trial within two years of commencement of the action, as required by s. 37 of the Construction Lien Act. Even after the dismissal, the in-house lawyer advised Associated Paving’s representative that the trial had been scheduled, and it was not until some months later that the dismissal of the action was discovered by Associated Paving. The in-house lawyer did not have liability insurance and so a successful claim against him would probably be worthless.
[4] In asking that the dismissal be set aside, Associated Paving argues that there is no prejudice to Pylon.
[5] In response, Pylon asserts that the matter should not be permitted to proceed, because;
a key witness has since died, which would cause prejudice to the defendant; and
there is no merit to Associated Paving’s position, that the deficiencies were a result of Pylon’s work.
THE LAW
[6] It is not disputed that there is a discretion to set aside a dismissal and permit the claim to continue, on conditions. See: Teepee Excavations and Grading v. Nairan Construction, 2000 3447 (ON CA), [2000] O.J. No. 2554 (C.A.).
[7] Similarly, in Faris v. Eftimovski, 2013 ONCA 360, dealing with dismissal of a civil action following a status hearing, the court reviewed the discretion of a motion judge to dismiss cases under rule 24.01. The Court held (at para 28) that dismissals would be appropriate:
(a) where the delay is caused by the intentional conduct of the plaintiff or his counsel that demonstrates a distain or disrespect for the court process, including at least one, and usually several, violations of court orders; or
(b) where there has been involvement in excusable delay that gives rise to a substantial risk that a fair trial of the issues in the litigation will not be possible because of the delay.
[8] It is the latter category in which this case falls. There has been no violation of court orders but rather a lengthy internal delay on the part of the plaintiffs’ counsel, seemingly inexcusable because the counsel was in-house. This is a high threshold, particularly where the plaintiff is responsible for the lengthy delay. The question is whether a fair trial is now possible.
[9] Associated Paving also relied on the decision in Sirro Brother Cement Finishing and Spray Limited v. Wedgewood Brockville Inc., 2012 ONSC 5389, another case where it was said that “the proceedings have had a long and difficult history, marked by a lack of diligence on the part of the plaintiff”. However, the court did not dismiss the action, because it could not conclude that the plaintiff deliberately attempted to delay the process or had demonstrated the type of indifference that would create a substantial risk that a fair trial could not be achieved. The delay did not render any specific issue impossible to decide:
fading memories and change in perspectives are factors common to all litigation . . . the loss, destruction or contamination of evidence usually associated with irreparable prejudice are not demonstrated.
at para 22-23
ASSESSMENT OF THE DELAY AND PREJUDICE IN THE ACTION
[10] The defendant claims prejudice because the president of Pylon, Mr. Colosimo, unfortunately passed away from cancer in May of 2011. They claim serious prejudice by his absence. However, I am not persuaded on review of the evidence and argument that any real prejudice will result from this unfortunate death. The essential issue in the case, concerning who caused the problems that required remediation, will be dealt with by way of expert evidence. It has not been suggested that any of the correspondence from Mr. Colosimo in his dealings with the issue on behalf of the company are inadequate to supplement the position of the defendant where necessary. The position of Pylon Paving and timing of its position are quite clear, and the business records will adequately supplement the position of the defence, in lieu of direct viva voce evidence.
[11] With respect to the issue of the merits of the application, Pylon’s clear position supported by its experts is that the asphalt itself was rejectable because of the low AC (“Asphalt Cement”) content, below the specification. Even the plaintiff’s consultant appears to acknowledge issues related to the low AC content. In some of the expert reports, the subsequent problem of thickness of the asphalt and segregation are noted, and the plaintiff relies on these as suggesting that Pylon Paving misapplied the asphalt, causing all or part of the problems requiring remediation. Other reports prepared closer to the time the paving was done dispute this.
[12] It appears, overall, that Associated Paving may have a weak case, but that is a matter that cannot be assessed on the limited material here, nor would it be appropriate to do so: there is conflicting evidence.
[13] Finally with respect to the suggestion that Associated Paving ought to have known of the problems of its in-house counsel earlier, because there were known problems with several other files, I am satisfied, based on the sworn affidavit material before me, that there was no recognition that problems extended to this file, until the time indicated in Mr. Capobianco’s affidavit.
[14] Accordingly, my assessment of all of these factors leads me to conclude that the plaintiff has a viable case, that there is no irrevocable prejudice to the defendant if the action is restored, and that the plaintiff’s delays are not so deliberate or egregious as to justify denying a trial on the merits.
[15] The motion to set aside the dismissal is granted. In the circumstances, the plaintiff is directed to move expedioustly in preparing and placing the matter on the trial list.
COSTS
[16] The defendant asks for costs in any event, since the necessity to respond to the action was the result of the plaintiff’s delay. The defendant has filed a bill of costs on a party and party basis in excess of $10,000. The plaintiff notes that the bill is significant, some of the claimed costs will be applicable to the trial, and so costs of the motion proceeding should be reserved to the trial judge. In the alternative, it is argued that only costs thrown away should be permitted as an offset.
[17] It is obvious to me that at least costs thrown away should be granted and that not all of the additional cost will be directly applicable to the trial, since further preparation will be required. In the result, costs in the amount of $7,000 all-inclusive will be paid by the plaintiff to the defendant, within 30 days of receipt of the decision.
Wein, J.
Released: June 18, 2014
COURT FILE NO.: Milton 711/09
DATE: 2014-06-18
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Associated Paving and Materials Ltd.
Plaintiff
- and –
Pylon Paving (1996) Inc.
Defendant
RULING ON MOTION
TO SET ASIDE DISMISSAL
WEIN, J.
Released: June 18, 2014