COURT FILE NO.: CV-11-5084

DATE: 20140908

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

FILIPPO MIRABELLI

Egidio Stagnitta, for the plaintiff

Plaintiff

• and -

G4S SECURE SOLUTIONS (CANADA) LTD.

Nicholas D.W. Daube, for the defendant

Defendant

HEARD: August 19, 2014

ENDORSEMENT

André J.

[1] In this contested status hearing, the defendant G4S Secure Solutions (Canada) Ltd. (“Secure Solutions”) requests that the court dismiss the action commenced by the plaintiff, Mr. Mirabelli, on account of delay. The defendant submits that Mr. Mirabelli’s failure to provide an acceptable explanation for delay, and the prejudice it has suffered on account of the delay, justify the dismissal of the action. Mr. Mirabelli, on the other hand, maintains that he has not delayed in advancing his action and that, in any event, the defendant has not suffered any discernible prejudice on account of any delay.

[2] This hearing therefore raises the following issue: should the action commenced by Mr. Mirabelli against the defendant be dismissed for delay?

FACTS

(1) Mr. Mirabelli went to a nightclub on January 9, 2010. A friend of his, Mr. Pietro Catinella, was involved in a fight with other patrons of the bar. At one point, a bouncer employed by Secure Solutions allegedly struck Mr. Mirabelli with a baton on the back of his head.

(2) Mr. Mirabelli filed a statement of claim against Secure Solutions on December 23, 2011.

(3) Secure Solutions filed its statement of defence on March 30, 2012.

(4) On April 5, 2012, the defendant commenced a third party claim against Mr. Catinella and the unidentified third party defendants.

(5) Affidavits of documents have not been exchanged and examinations for discovery have not taken place.

(6) On January 1, 2013, and on July 16, 2013, a law clerk employed by Mr. Mirabelli’s counsel contacted Mr. Daube, counsel for Secure Solutions, to canvass dates for examinations for discovery. On both occasions, the law clerk left voice messages with Mr. Daube’s assistant.

(7) On July 17, 2013, Mr. Daube sent an email to Mr. Stagnitta, counsel for Mr. Mirabelli, indicating the following:

I understand from Jacqueline of your office that you are looking to schedule discoveries.

I wonder if you have been able to obtain the last known address of the Third Party Defendant, as we had discussed below. My preference is to have all the discoveries proceed at once, rather than obtain your client’s evidence as to the third party defendant’s last known whereabouts and then circle back for another round of discoveries on the basis of that evidence.

We will of course provide discovery dates in the event your client is unable or unwilling to disclose any details concerning the third party defendant at this time, but I do think that the identification of the third party defendant at this time would result in a more efficient process.

Please let me know if you would like to discuss.

(8) Mr. Daube contacted Mr. Stagnitta on May 15, 2014, June 9, 2014 and June 25, 2014, for information concerning Mr. Catinella’s address.

(9) Mr. Stagnitta ultimately provided Mr. Daube with information about Mr. Catinella’s address on or about June 25 to June 30, 2014.

(10) On June 9, 2014, Mr. Stagnitta’s law clerk contacted Mr. Daube to canvass dates for examinations for discovery.

(11) On July 18, 2014, Mr. Stagnitta received a notice of status hearing, dated July 16, 2014. He then scheduled a status hearing for August 19, 2014.

LEGAL PRINCIPLES

[3] The adjudication of a status hearing is governed by Rule 48.14(13). The Rule provides that:

(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] Rule 48 enables the court to monitor the pace of litigation and ensure that disputes are resolved in an efficient fashion. The responsibility of ensuring that the matter moves along expeditiously lies with the plaintiff. Concomitantly, the plaintiff must bear the consequences of pursuing its action in a dilatory action: see Wellwood v. Ontario Provincial Police, 2010 ONCA 386, 102 O.R. (3d) 555, at para. 48; Faris v. Eftimovski, 2013 ONCA 360, at para. 33.

[5] A plaintiff bears the burden of demonstrating that there is an acceptable explanation for the delay in the litigation and, that if the action continued, the defendant would not suffer non-compensable prejudice: see Faris, at para. 42.

[6] Prejudice will be presumed after passage of a limitation period and it will be presumed that memories of witnesses fade over time. If the defendant has been unaware of a claim being asserted, either by notice of the claim or by service of the statement of claim, such that he has been unable to undertake a timely investigation, this factor may be weighed in determining whether there is a substantial risk that a fair trial is not possible: see Kassam v. Sitzer, [2004] O.T.C. 731 (S.C.), aff’d [2005] O.J. No. 1849 (Div. Ct.) at para. 53.

ANALYSIS

[7] Mr. Mirabelli clearly bears the burden of satisfying the court why the action should not be dismissed for delay. To satisfy this requirement, he must provide an acceptable explanation for the delay and show that even if the delay in advancing the action is not attributable to him, the defendant has suffered no prejudice that is non-compensable.

[8] I am not persuaded that Mr. Mirabelli is responsible for the delay in advancing this action. The statement of claim was filed before the expiration of the limitation period. The delay in the matter occurred largely as a result of the defendant’s efforts to obtain information from Mr. Mirabelli regarding Mr. Catinella’s address. Mr. Mirabelli was only able to provide this information in June, 2014. There is no evidence that Mr. Mirabelli deliberately withheld this evidence from Secure Solutions for the purpose of frustrating the latter’s intention to pursue its third party claim against Mr. Catinella.

[9] Mr. Mirabelli also relies on the affidavit of barrister Wonkyu Daniel Lee, who has deposed that on January 1, 2013, and again on July 16, 2013, his office contacted counsel for Secure Solutions in an effort to fix dates for examination for discovery but the latter failed to respond. To that extent, he should not be held to be responsible for failing to advance the action.

[10] The defendant submits that Mr. Lee’s affidavit regarding this information is hearsay and accordingly, should be given little weight. Given that Mr. Lee received this information from an unknown source the information is indeed, hearsay.

[11] However, Mr. Daube’s email message to Mr. Stagnitta on July 17, 2013, provides some corroboration that Mr. Mirabelli’s counsel contacted Mr. Daube in an effort to advance the action by scheduling examinations for discovery. Mr. Daube’s email indicates that he understood that Mr. Stagnitta was looking to schedule examinations for discovery.

[12] The email also shows that Mr. Daube wished to delay scheduling discoveries until he succeeded in locating Mr. Catinella. He clearly preferred setting discovery dates after he was able to serve Mr. Catinella and believed that identifying the Third Party Defendant “would result in a more efficient process”. While Secure Solutions had no obligation to move the action forward, it clearly indicated a preference to conduct examinations for discovery after it had contacted Mr. Catinella.

[13] Mr. Daube submits that the proffered reason for the delay, that Mr. Mirabelli’s law firm “has undergone a series of personnel changes, which have directly involved individuals working on this action”, is not an acceptable explanation for the delay for the purpose of an analysis under Rule 48.14(13).

[14] I agree. However, I cannot conclude that the delay in advancing this action was on account of personnel changes in Mr. Mirabelli’s law firm. The efforts by the plaintiff to schedule examinations for discoveries were blunted by the defendant’s desire to obtain an address for Mr. Catinella before the examinations would take place. Mr. Mirabelli only obtained information regarding Mr. Catinella’s whereabouts in May 2014, and relayed that information to Mr. Daube.

[15] Even if Mr. Mirabelli has satisfactorily explained the delay, the action could still be dismissed if there would be prejudice to Secure Solutions. Furthermore, even if Mr. Mirabelli was unable to provide a satisfactory explanation for the delay, it is still open to the court to dismiss the action, even if there is no proof of actual prejudice to the defendant.

[16] Mr. Daube submits that his client has suffered three types of prejudice; presumed prejudice, spoliation of relevant documents and inability to locate and serve Mr. Catinella within thirty days after the Third Party Claim was issued, as required by Rule 29.02(2) of the Rules of Civil Procedure.

[17] Regarding the first point, the defendant had an opportunity to conduct a cross-examination of Mr. Mirabelli sometime in 2013 but opted not to do so. There is no doubt that Mr. Catinella’s memory may have faded since the incident. However, this failure is attributable not so much to Mr. Mirabelli’s delay in advancing the action but to Mr. Daube’s desire to ascertain Mr. Catinella’s whereabouts for service.

[18] Second, there is no evidence before me to suggest that Secure Solutions has suffered prejudice on account of document spoliation. The affidavit evidence filed by Mr. Mirabelli in this hearing indicates that all the clinical notes, records and reports of the medical practitioners who treated or assessed Mr. Mirabelli have been kept in the file of Mr. Mirabelli’s counsel. Further, the clinical notes and records for medical establishments where Mr. Mirabelli was treated have been preserved, as has been Mr. Mirabelli’s prescription history. Finally, Mr. Lee deposed that the Ministry of Health and Long Term Care (OHIP) maintains their records for seven years and that Mr. Mirabelli’s OHIP records for three years prior to the accident are still available.

[19] Third, the defendant submits that it may suffer prejudice if it is required to make an opposed motion to extend the time for service on Mr. Catinella, and additional prejudice if such motion is unsuccessful.

[20] In my view, it would be improper and inconsistent with the requirements of Rule 48, to dismiss the action on the basis of possible prejudice. In any event, the possibility of any motion to extend the time for service on Mr. Catinella being rejected is rather remote, given the steps taken by the defendant to locate Mr. Catinella and the date when he received information about Mr. Catinella’s address.

DISPOSITION

[21] Based on the above, the defendant’s request to have Mr. Mirabelli’s action dismissed for delay is denied.

[22] In advancing the action, the parties will adhere to the following timetable:

(a) Examinations for discovery to be completed by all parties on or before April 25, 2015;

(b) Motions regarding undertakings to be completed by all parties on or before May 29, 2015;

(c) Motions arising out of examinations for discovery to be completed by all parties on or before June 30, 2015;

(d) Completion of mediation to be completed by all parties on or before July 31, 2015; and

(e) Date by which the action shall be set down: August 30, 2015.

COSTS

[23] Mr. Mirabelli seeks costs of $6,000 on a partial indemnity basis while the defendant seeks costs of $7,000 on a similar basis.

[24] In determining the quantum of costs which can be considered fair and reasonable in this matter, I consider the following factors:

(a) The plaintiff was substantially successful in this matter.

(b) The issues involved in this contested status hearing were not complex although they required a moderate degree of preparation.

(c) Mr. Stagnitta was called to the bar in 2003 and his hourly rate of $255 is not unreasonable.

(d) Litigation of this issue was very important to both parties.

[25] Based on the above factors, costs will be fixed in the amount of $4,000 inclusive, payable by Secure Solutions to Mr. Mirabelli.

André J.

Released: September 8, 2014