SUPERIOR COURT OF JUSTICE - ONTARIO

RE: H.B. Fuller Company and H.B. Fuller Construction Products Inc., Plaintiffs

AND

David Rogers carrying on business as Rogers Law Office and Computer Packages Inc., Defendants

BEFORE: F.L. MYERS J.

COUNSEL:
D. Templer, for the Plaintiffs

Shannon Puddister, for the Defendant, David Rogers carrying on business as Rogers Law Office

Paula Bremner, for the Defendant, Computer Packages Inc.

HEARD: September 9, 2014

endorsement

[1] Mr. Rogers passed away in 2013. There is no Order to Continue. There is no estate representative. The action is stayed. It may be that a stayed action cannot be dismissed under R. 48.14, but until the stay is lifted I will not consider that issue. Motion adjourned to Scheduling Court or Practice Court, as appropriate, on or before October 15, 2014.

[2] The action has not proceeded with any pace against CPI. Its defence was not required in a timely way. Its documents have not been required because the plaintiff is trying to settle with Rogers/LawPro.

[3] The fact that the Notice of Status hearing went astray is a factor that weighs strongly in favour of re-instating the case. The plaintiff argued in its motion that the Registrar had no jurisdiction to dismiss the case in the circumstances. Counsel did not know of Finlay v. Van Paasen, 2010 ONCA 208 or of 806480 Ontario Limited v. RNG et al, 2014 ONCA 488. 806480 does not purport to overrule Finlay which is on all fours with this case.

[4] The plaintiff did not know its action was dismissed until counsel or CPI told it. Even then, the plaintiff’s approach was to favour its settlement approach with Rogers/LawPro ahead of moving to reinstate with alacrity.

[5] Under Reid v. Dow Corning (2001), 11 CPC (5th) 80, as tempered by Scaini v. Prochnicki, 2007 ONCA 63, using a contextual balancing of the four factors, favouring a hearing on the merits, the issue is a close call. Delay is attributable to the plaintiff’s indulgences and settlement desire. It moved fairly quickly, if grudgingly. The fact that the Status Notice went astray, at best, leads to the outcome that the plaintiff should have faced a Status Hearing at which it would have faced the burden of the Faris Test (see Faris v. Eftimovski, 2013 ONCA 360. See CNR v. Kitchener et al, 2014 ONSC 4292). Why the choice of test depends on the mailing error of the Registrar is hard to understand.

[6] Under either test, the plaintiff has to account for prejudice. The defendant Rogers died in July 2013. The plaintiff has not shown that this case is a documents case or that the solicitor’s evidence is not needed in this solicitor’s negligence case. In either Reid or Faris, the burden is on the plaintiff. (I note that under R.24, the burden of proving specific prejudice is on the defendants if the presumption of prejudice is overcome. See Ali v. Fruci et al, 2014 ONCA 596).

[7] The trial never could have been held in the time between the commencement of the action in October 2011 until Mr. Roger’s death in July 2013. But discoveries could have been held or Mr. Rogers’ evidence otherwise preserved. The plaintiff bears the outcome of its indulgences and settlement efforts. The action did not have to go into abeyance to discuss settlement. See Faris at paragraph 50.

[8] The plaintiff brought this motion in the wrong court, with no factum or book of authorities. It treats this action as a sideshow focusing instead on settlement with Rogers. Even there, it has yet to obtain an Order to Continue over a year after Mr. Roger’s death. The plaintiff cannot meet its burden to explain its delay and prove no prejudice either strictly or contextually. Action against CPI dismissed with costs of $2,500 for this motion and costs of the action in an amount to be agreed upon or assessed payable by the plaintiff to CPI. Costs in respect of the adjourned motion vis Rogers reserved to the judge who hears the motion.

F.L. Myers J.

Date: September 9, 2014