COURT FILE NO.: 07-CV-329461PD2

DATE: 20140820

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Carioca’s Import & Export Inc., Plaintiff

AND:

Canadian Pacific Railway Limited, Defendant

BEFORE: Aston J.

COUNSEL:
Kirryn Hashmi, for the Plaintiff

Christopher Rae, for the Defendant

HEARD: August 15, 2014

ENDORSEMENT

[1] The plaintiff brings this motion to restore the action to the trial list. The parties agree that the test is whether the plaintiff has provided a reasonable explanation for the delay in bringing the case to trial and whether the defendant would not suffer any prejudice that cannot be compensated in costs if the matter is restored to the trial list. The plaintiff bears the onus of establishing both parts of the test.

[2] The plaintiff commenced this action seven years ago in March, 2007. The plaintiff’s claim is for $125,000 for negligence respecting a fire that occurred on its property and on the defendant’s neighbouring property. Liability and damages are in issue. Third party claims initiated in April, 2007 included extensive pleadings and discovery before ultimately being dismissed in August, 2009.

[3] The plaintiff had set the matter down for trial in June, 2009 and served a Notice of Readiness for Trial in November, 2009. An unsuccessful mediation occurred at that time.

[4] On October 27, 2010 the case was struck from the trial list. Counsel for the defendant had refused to sign the Trial Certification form on the grounds that the plaintiff had not fulfilled all of its undertakings on discovery. Oral discovery had been complete in the summer of 2008. The plaintiff submits that the refusal to sign the Trial Certification form based upon outstanding productions was a pretext to allow the defendant to delay the case. There may be something to that submission. There had been no real effort to compel satisfaction of those undertakings in the two preceding years. However, the plaintiff admits that the undertakings were in fact outstanding.

[5] Though it is not clear what steps were taken in the following year to satisfy those undertakings, the plaintiff did bring a motion to restore the case to the trial list. The plaintiff’s motion in that regard was unopposed by the defendant and an order was granted January 6, 2012 by Low J. restoring the case to the trial list.

[6] However, in October, 2012, when plaintiff’s counsel sought the defendant’s input with respect to scheduling pre-trial and trial dates, the defendant’s new counsel raised again the question of outstanding undertakings. Between November, 2012 and December, 2013, plaintiff’s counsel delivered fairly extensive documentation to defendant’s counsel, at least some of which had to be garnered from third parties and some of which had already been produced for the defendant’s previous counsel but either lost or not delivered to new counsel. In any event, by December 9, 2013, the only outstanding undertaking was to provide a copy of the plaintiff’s corporate tax return (for 2008, two years after the fire) not yet received from Canada Revenue Agency. That corporate tax return was finally produced in April, 2014.

[7] In the meantime, the case had again been struck from the trial list in October, 2013. The endorsement of Low J. October 28, 2013 reads:

“Not ready. Expert reports yet to be served. Plaintiff’s damages disclosure to be completed. Struck from the list.”

[8] The plaintiff served a motion to restore the case to the trial list returnable April 17, 2014. Through inadvertence, the requisite hearing confirmation form was not filed in timely fashion so that motion was not listed for hearing. Under the Rules it is deemed to have been abandoned. The plaintiff did not intend to abandon the motion and in fact asked the defendant to agree to an adjournment of the motion. When the adjournment request was refused, the plaintiff brought a new, virtually identical, motion, the one now before the Court.

[9] It is important to note that in addition to the delay occasioned by plaintiff’s failure to satisfy its undertakings, the plaintiff is still not ready for trial because its expert report remains a work in progress. The plaintiff asserts that it had difficulty securing the funds to retain an expert accountant and hoped to settle the case without incurring that cost. The plaintiff’s expert report is expected to be complete by the end of October. It may in turn necessitate a report from an expert on behalf of the defendant.

[10] I accept the plaintiff’s submission that the plaintiff has no motive to delay the case. Moreover, it may well be that the unfulfilled undertakings are only marginally important. However the fact is that the delay is mainly, if not entirely, attributable to the plaintiff. I am not satisfied that the delay has been reasonably explained.

[11] Though there were only three or four undertakings outstanding in the fall of 2012, those undertakings were not completely satisfied until approximately twenty-seven months after Low J. restored the case to the trial list by her order of January 6, 2012.

[12] I do not place much emphasis on the dilatory manner by which the plaintiff advanced its case from 2007 to when it was first struck from the trial list in the fall of 2010. However, that event should have been a wake-up call for the plaintiff. Instead, the plaintiff took more than a year to take any steps to restore the case to the trial list and it is has been more than two and a half years since the order restoring it to the list. Even now, the expert report referred to in the endorsement of October 28, 2013 is still just a work-in-progress.

[13] Trial dates have been made available to the plaintiff on several occasions, going back to June, 2009. If the matter is restored to the trial list now it is unlikely that it could possibly be tried before next year, more than three years after the case was last restored to the trial list and more than eight years after the Statement of Claim was served.

[14] This case is probably, in large part, going to be decided upon oral evidence. The credibility and reliability of witnesses may be critical to the outcome on both liability and damages. The length of delay since the fire in 2006 is important.

[15] The defendant submits that there is actual prejudice to the defendant because a “key witness”, one Mohamed Jabar, is not available. Mr. Jabar was a City of Toronto Public Health Inspector and the author of some of the business records. I am skeptical of the characterization of Mr. Jabar as a “key witness”. The defendant has ascertained that Mr. Jabar retired from his employment several years ago and that the City is either unwilling or unable to give the defendant a forwarding address for him. On the other hand, the defendant has not adduced any evidence of any real attempt to find Mr. Jabar and is content merely to say that he no longer works for the City and the City will not tell them where he is. That said, even if Mr. Jabar is located, it is apparent that his recollection of events going back to a fire eight or nine years earlier, and the recollection of other witnesses will presumptively have faded somewhat eight or nine years after the fact.

[16] I am not satisfied that the plaintiff has met either aspect of the requisite test for restoring the case to the trial list. The motion is therefore dismissed.

[17] In addition to the costs of this motion, the defendant asks for costs of the motion in April this year. He submits it is deemed to have been abandoned under Rule 37.09 and seeks costs of $2,500 for that motion.

[18] In addition to the costs thrown away for the April motion, the defendant seeks partial indemnity costs of almost $15,000 for the present motion. This is in contrast to the $4,500 that the plaintiff would have sought for costs if successful on this motion.

[19] I agree with the submission of counsel for the plaintiff that the costs outline of the defendant is excessive. To claim 60 hours or more on this motion is out of line with what is reasonable.

[20] The defendant’s costs are fixed at $7,500 all inclusive for the motion itself and an additional $1,500 for the costs thrown away in respect of the April motion. Though that motion

did not proceed and the defendant was not required to attend in court the defendant had prepared responding material it was able to adapt for use on the present motion.

Aston J.

Date: August 20, 2014