NEWMARKET COURT FILE AND PARTIES
COURT FILE NO.: CV-08-089735
DATE: 20140926
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Harpreet Dua and Nanak P. Singh, Plaintiffs/Moving Parties
AND:
Ontario College of Teachers, W. Douglas Wilson and Michael Salvatori, Defendants/Responding Parties
BEFORE: THE HON. MR. JUSTICE P.H. HOWDEN
COUNSEL:
Harpreet Dua and Nanak P. Singh, Self-represented
S. D’Souza, Counsel and T. Wilson (Student-at-Law), for the Defendants/Responding Parties
HEARD: September 8, 2014
ENDORSEMENT
[1] This action against the Ontario College of Teachers and two other defendants was brought by Harpreet Dua and her husband Nanak P. Singh for compensation for improperly and unfairly depriving Ms. Dua of her right as a qualified teacher to pursue a career she was trained and qualified for. The problem is that it was brought in 2008, pleadings and examination for discovery of the plaintiffs were completed by January, 2009, and no further step was taken to bring the action to trial for five years. The Registrar of the Superior Court purportedly gave notice to the parties on July 9, 2010 that the action would be dismissed for delay unless within 90 days the parties appeared for a status hearing. On October 18, 2010, the Registrar issued a dismissal order. The plaintiffs move to set aside the Registrar’s dismissal order and permit this action to proceed to trial.
[2] Mr. Singh provided an affidavit in support of the motion stating that he and his family wanted to move the case forward but did not have the resources to hire a lawyer. From 2008-13, their time was fully taken up in the following ways. In 2008 and 2009, they became busy building their own house at 102 James Scott Rd. and moved into the unfinished house close to the end of 2009. For the next three years they became absorbed with repairing the deficiencies in the new house, worked day and night in a new publishing business which closed, and lost most of their resources trying to make a go of it. In November 2012 they got the occupancy permit from the City of Toronto for their new house. They lost much in trying to make these businesses work, finally packed it in and tried to recover money for their clients, attending Small Claims Court on many matters including trials and appeals.
[3] Mr Singh provided the following overall sense of the family’s problems from 2008 to 2014 and what it meant in time, energy, and all-consuming pressure:
That my spouse Hapreet Dua and myself were busy in our self-build house construction for most of 2008 and 2009. We moved from our old house at 36 Taplane Drive to our still incomplete house under construction at 102 James Scott Road sometime at end of 2009.
We were absorbed fully with finishing the deficiencies of the project for the next 3 years till November 2012 when we got the actual occupancy permit from the city.
In 2013, we tried to recover our losses that had piled up immensely by buying a property for our daughter and building on it. We have been knee-deep in the project with city of Toronto since 2013, and construction is midway.
That it took a toll on our lives for last two years while we were busy applying for construction loan and mortgage for purchase of property in Toronto for our daughter. We had to go through at least fifteen mortgage/loan applications. At the same time we were taking up matters with establishments, which had hit our credit rating for no fault of ours. It has been a nightmare dealing with banks and credit companies.
...Years seem to pass in days and it is hard to believe that we can’t attend to even the most urgent things in life which need our attention.
[4] It was in late March, 2014, after Mr. Singh had served the defendants with the trial record and was about to file it, that he says he was told at the court office in Newmarket that the case had been dismissed by the Registrar. He was told a motion was required to reinstate the action. He was told the file would have to be recovered from storage so that he could know why this had happened. He checked on several occasions without success until June 26, 2014 when the file was apparently retrieved and he found out the reason and date of the dismissal.
[5] Mr. Singh said they prepared this motion by July 20 but it took until August 1, 2014 that he was informed by one of the trial coordinators at Newmarket, Ms. Redgrift, of the availability of a return date for the motion. They filed the motion “immediately without wasting further time.” (N. Singh aff., para. 20.)
[6] The motion record bears the court stamp dated August 6, 2014. The return date was September 8, 2014, the day that the plaintiffs and counsel for the defendants argued it before me.
[7] The defendant filed a motion record and supplementary record. The affidavit of Daniela de Bartolo, law clerk in the office of the defendants’ counsel, contains a history of the proceeding and correspondence with the plaintiffs from June 9, 2008 to January 28, 2009 when the discovery of the plaintiffs was rescheduled to accommodate them. The correspondence contains, in addition to delivery of the statement of defence on July 8, 2008, an email from the plaintiffs on the same date stating:
Please note that as of today, you are late by four days in service of Statement of Defence under the Ontario Rules of Civil Procedure R.18.02(2) extended time of 30 days, and we are noting you in default vide Rule 19.01(1).
With warm regards, Dua and Singh.
[8] The Statement of Defence was delivered forthwith, a reply was filed, pleadings closed, the defendants delivered their affidavit of documents, and oral examination of the plaintiffs occurred on January 30, 2009. The plaintiffs made no attempt to examine the defendants and have failed to provide answers to their undertakings or deliver an affidavit of documents. (De Bartolo aff., para 15). Despite a request for the plaintiffs’ new address on August 1, 2008, College counsel having learned of an impending move, they were not informed by the plaintiffs of their new address at 102 James Scott Rd., Markham, Ontario, a property acquired by them on March 30, 2009. (De Bartolo aff., paras. 10-12, 15,and 19-20). The affidavit went on to recite the issuance of the Status Notice of July 9 and the Registrar’s Dismissal Notice of October 18, 2010. No further communication from the plaintiffs came to the defence counsel’s attention in 2009, 2010, 2011, 2012, or 2013. Finally, in or about early July of this year, the plaintiffs contacted them asking if the defendants would consent to setting aside the Dismissal Notice. The request was refused.
[9] The copies of the Status Notice and the Dismissal Notice marked as exhibits contain only one address after the word “To:”, that of the defendants’ counsel. The plaintiffs say they never received either document. There is nothing to indicate that they ever advised the court office of their change of address or attended at the court office to inspect the file or to move this action along from their filing of the Reply to Defence in July 2008 and their appearance for examinations for discovery arranged by the defendants’ counsel in late January 2009 to July 2014.
[10] The status notice and the dismissal order may bear only the address of the counsel for the defendants because it is the defendants’ copy which is before me as an exhibit. If so, that is poor practice. It is one of the basic rules of natural justice that a tribunal and persons exercising administrative authority must act fairly where the rights, privileges or interests of an individual are affected. The principle that a person must know the case being made against him or her and be given an opportunity to answer it is an imperative (in Latin, audi alteram partem.) This action involves a claim based on the alleged deprivation of a woman’s right to follow her profession in Canada; where that right is at stake, “(a) high standard of justice is required.” Principles of Administrative Law (4th ed.): Thomson Carswell, 2004, pp. 248-9 and 250. There is no evidence to indicate that any notice was sent to the plaintiffs, nor did the defendants send a copy to them or bring a motion for delay when the action was not set down and they had completed examinations for discovery of the plaintiff or to compel an affidavit of documents on pain of dismissal. Therefore until 2014, these plaintiffs had no notice that their action was vulnerable on grounds of delay.
[11] The supplementary motion record of the defendants contains one affidavit, that of a student at law in defendants’ counsels’ office attaching two decisions of the court in two actions, indicating that the plaintiffs have taken part in at least two proceedings without legal representation before this. The two court decisions are cited as Singh v. Canada (Attorney General), [2009] O.J. No. 9 (SCJ) and Singh v. United States (Attorney General), [2010] O.J. No. 1591 (SCJ).
[12] The first involved a motion to strike various defendant ministers and diplomats named as defendants but sued in their representative capacity and certain portions of the statement of claim; the latter were struck with leave to amend. The action sought redress for a humiliating incident at the border stemming from allegations that the federal government had fed information to U.S. and other governmental authorities falsely linking Mr. Singh to criminal activities, an action described by the presiding judge as “ a serious claim against the federal government” with which Mr. Singh should obtain legal assistance. The second was a motion to set aside a registrar’s order of dismissal and to amend the claim; it was dismissed. This motion was dealt with in April 2010.
[13] It appears that the plaintiffs would be well aware since then of the court Registrar’s power to dismiss where an action is allowed to languish for some time and of the rules of court requiring timely proceedings which he quoted to the defendant’s counsel in this case in 2008, as recited above. Now the claimants want relief from an order of dismissal for delay made on October 18, 2010 following a delay in moving this action forward since February 2009, a period of five years, seven months.
[14] The test for a motion to set aside a registrar’s order of dismissal for delay was approved by the Court of Appeal in Marche D’Alimentation Denis Theriault Ltee v. Giant Tiger Stores Limited, [2007] ONCA 695 at para. 20 with a serious qualification. The four-pronged test derived from an earlier case, Reid v. Dow Corning Corp. (2001), 11 CPC (5th) 80 (SCJ), at para. 41 was set out as follows:
(a) explanation of the delay;
(b) inadvertence in missing the deadline for setting down the action for trial pursuant to rule 48.14, being two years from filing of the first defence which occurred in 2008;
(c) promptness of the motion to set aside;
(d) no prejudice to the defendants.
[15] Marche approved the Divisional Court decision in Scaini v. Prochnicki (2007), 2007 ONCA 63, 85 O.R. (3d) 179 which marked a different approach from the strictness required by Reid. Goudge J.A. wrote for the court that a contextual approach is preferred to a rigid requirement to satisfy each of these four elements strictly:
The four Reid criteria are “likely to be of central importance” in most cases, but they are not exhaustive and “(t)he key point is that all relevant factors must be weighed by the court to determine an order that is just in the circumstances of the particular case”.
Scaini v. Prochnicki, at paras. 23-4
[16] This approach calls on the court, as Mr. Singh emphasized, to apply important underlying principles and values of the judgment system that are inherent in the Reid factors. Those principles and values were referred to by the Court in Scaini in its review of the Master’s decision before it: discourage delay and adopt an enhanced proactive judicial role to ensure timely justice; in normal circumstances a plaintiff should not be left without a remedy and an innocent client will not be allowed to suffer the irrevocable loss of the right to proceed by reason of his or her solicitor’s inadvertence; inadvertence however is not to be equated with negligence; an important value underlying the court system is that disputes should be resolved on their merits; and finality is a central principle in the administration of justice and that principle becomes stronger as the years pass.
[17] As R. J. Sharpe J.A. wrote for the court in Scaini at para. 38:
Even when the order dismissing the action was made for delay or default and not on the merits, and even when the party relying on the order could still defend itself despite the delay, it seems to me that at some point the interest in finality must trump the opposite party’s plea for an indulgence.
Explanation of the litigation delay
[18] The delay in this case began following the examination for discovery of the plaintiffs in January 2009. This was the time when they were building the family house and by 2010, they began to work on deficiencies in construction and began a publishing business. I appreciate that they were busy but to the point where no time was available in 2009, 2010, 2011 and 2012 to 2014 to move this action forward? This is a matter of priorities. Obviously the plaintiffs decided that there were other matters that were more pressing to the point that they did not even check on the court file until 2014 to find the action was dismissed. Nothing of a medical nature disabled them from dealing with it if they had chosen to. Even a post mortem depression after death of a party’s spouse was held in Tracey v. Leon’s Furniture Ltd., [2012] NSC No. 6116 (SCJ) not to justify “a failure to take any steps to move an action forward for over two years” (at para. 27). Like the plaintiff in Tracey, there is evidence that business with other matters made it difficult to deal with this action. But there is no evidence that it made it impossible to proceed.
[19] Mr. Singh swore in paras. 6 and 7 of his affidavit that “we wanted to move the case forward but did not have the money…to hire a lawyer” and “we did try to do a lot of research on the case in March 2010 after given up on lawyers who wanted tons of money to represent us.”
[20] I appreciate the plaintiff’s extreme difficulties in 2009 to 2012, a period of two to three years, but the fact that they chose to give other matters priority and devoted no time at all to moving this action forward in five years is simply not explained. I understand Mr. Singh’s assertion that they did some research but it failed to translate into any action on this file at all. It is significant that Mr. Singh found time to be active in one of the court matters cited above in April 2010.
[21] On the other hand, the lack of notice of the status notice and the order of dismissal is a troubling breach of natural justice.
Inadvertence
[22] There is no evidence that inadvertence played a part in the inaction in this case. The evidence is that the plaintiffs were always conscious of this action and its demands but lacked time and resources to carry it on, absent knowledge that it was vulnerable to dismissal for delay from knowledge of the status notice. Mr. Singh swears that they wanted to move the case forward but lacked money and resources and time to do it. No solicitor was involved who missed working on this file
Promptness of Motion to Set Aside
[23] The evidence is that until June 26, 2014, the plaintiffs knew nothing of the order of dismissal of October 2010. Mr. Singh states that despite their problems with the house and their businesses from 2009 to 2013, he tried to take time to work on the case. Whatever work was done did nothing to move the action along.
[24] A trip to India due to the serious brain illness of a close relative took him away on March 31 2014. By that day, he says he had prepared a trial record, served it, and went to the court house in Newmarket on March 26, 2014. Strangely, he described the court house as “quite far from Markham”. No doubt this was to indicate one of the reasons why he found it difficult to deal with this case. Markham is a large municipality but from its lower end it is connected to Newmarket by a major freeway, Highway 404 and is not far on its easterly side from another freeway, Highway 400.
[25] It was on March 26, 2014 that a clerk at the Newmarket court office told him of the dismissal.
[26] Because there had been no activity on this file since 2008 and the Registrar’s order dismissing the action was on file and not moved against, the file had been sent to storage off the premises. Mr. Singh states that from May 2014 when he returned from the emergency in India, he kept checking with the court office but each time he was told the file had not been returned and it was re-ordered. Finally, he says the file and the dismissal order had arrived for him to see. Until then, he says he did not know the reason and date of the dismissal because he had never received it.
[27] The motion was prepared by July 20 but it took until August 1 to receive a return date from the trial coordinator. It was served and filed by August 6, 2014, returnable on September 8.
[28] The defendants’ counsel elected not to cross-examine Mr. Singh on his affidavit. I accept his evidence that once he knew of the dismissal order, he moved relatively promptly. Given his urgent trip to, and time spent in, India, I do not fault his promptness in moving after his return in May 2014. Knowing that often the movement of files from storage to the court house can occur with glacial slowness, I do not doubt that it took him a month to be able to see the order and obtain the details of what it and the notice contained. Unlike the defendants’ counsel, I can understand why Mr. Singh felt, as a lay person, that he had to see the dismissal order for its date and other details he might need for his material. While Ms. Dua remained here in Canada in April and May 2014 as the defendants’ counsel pointed out, it is Mr. Singh who is the experienced person to whom she would defer to do the necessary legal work. Having said that, and having heard his argument and knowing of his (at least) two prior appearances to argue before this court, he is taken to know something of court practice and the obligation to prosecute one’s action or it would be dismissed.
[29] The period from October 2010 until March to May 2014 when no action was taken to remedy the dismissal is problematic for the plaintiffs following the dismissal order. For well over four years (from July 2008 when they told defence counsel the statement of defence was overdue until March 2014) the plaintiffs obviously remained totally disconnected from the court file and any attempt to continue to trial. I am aware that they were discovered in January 2009 but have filed nothing since the statement of claim in June 2008. Mr. Singh had to know from his own case before Pitt J. in April 2010 that the Registrar could and would dismiss an action for failing to prosecute it. Mr. Singh says that he and his family were extremely busy on family business and earning an income but he chose to bring this action against these defendants and, knowing what he must have known of the likelihood of dismissal if nothing was done, he apparently did not even look at his own case file, nor did Ms. Dua, from 2008 until March 2014, as far as I can tell. Apart from the Marche and Askaryar cases, none of the cases presented to me approach the absence of interest in a case shown by these plaintiffs.
[30] Mr. Singh says that he did not receive a copy of the status notice or of the dismissal order because the status notice may have been sent to his old address during that time. Yet he swore that “we had forwarded all mail to our new address.” (Singh aff., paras. 21-2).There is no evidence that Mr. Singh did anything to record his change of address in the court file.
[31] But there is also no evidence that any notice was even sent to them concerning the status of the action and the dismissal. The defendants’ counsel asked the plaintiffs to provide their new address on August 1, 2008 and serve their affidavit of documents as the defendants had done by then, and received a reply from Ms. Dua saying they were in the process of changing their residence then (Defs’ MR, De Bartolo aff., Ex. K). Despite letters to the plaintiffs requesting their affidavit of documents on August 1 and 11, and October 3, 2008, January 7 and 28, 2009, no reply was received until the defendants’ counsel were served with this motion in August 2014.
[32] I am not impressed with this demonstration of complete inattention and neglect of this action. While I understand that the plaintiffs did not receive the dismissal notice and the status notice, they showed no interest whatsoever in this action to the point that they are delinquent now for over six years in delivering their affidavit of documents, failed to set down the action after they had been examined for discovery in early 2009 and having decided in 2009 as Mr. Singh said to me at the hearing that they would not examine the defendants before trial, failed to advise the court office of this change of address in 2008, and brought no motion to set aside the Registrar’s dismissal order of October 2010 until July 2014.
[33] The plaintiffs were given no notice that this action was to be dismissed unless they set it down by October 2010, either from the court or by the defendants’ counsel by way of a dismissal motion of their own. I do accept that once they finally took an interest sufficient enough to attempt to file the trial record in March 2014, and were told of the dismissal, they moved relatively promptly, accepting as I feel I have to, Mr. Singh’s word that his absence for two months after that was on an emergency trip due to extreme illness of a close relative.
Prejudice
[34] The defendants’ counsel rely on generic grounds in arguing prejudice. The fading of memories with time applies to both sides and as the plaintiffs will have the onus of proof at trial, their self-inflicted prejudice for this reason could be more serious.
[35] I agree that the time for which this action has lain dormant provides in each passing year a stronger entitlement of the defendants to finality of the dismissal. Marche, at para. 38. Four years since the dismissal is not as long a period as in Marche where the Court held that five years from dismissal gives a defendant ground to rest on the assurance that the claim had been dealt with once and for all. However, the principle of finality is trumped here by the values and judicial goals of preference for the disposing of actions after the parties have had their day in court and evidence of any attempt to give notice of case status and its dismissal. In this situation, the interests of justice and of consistency and equality demand that the registrar’s order be set aside. “That is the just order in the circumstances.” Askaryar v. Toronto (City) Police Services Board, 2014 ONSC 2900, [2014] O.J. No. 2307(59) at para. 59; Bains v. Morrow, [2010] O.J. No. 5654 (SCJ).
[36] The motion is granted. However it is not granted without terms. The terms of the order are as follows:
that the plaintiffs have 20 days to deliver their affidavit of documents;
that within 45 days from this order the action shall be set down for trial and the trial record filed by the plaintiffs ;
that the plaintiffs shall see that it is placed on the list for trial at the sittings commencing in May 2015.
[37] Because the plaintiffs have been granted an indulgence, the defendants have quite reasonably defended the dismissal order in circumstances where the delay is substantial and I am not convinced by their explanation for the delay apart from the registrar’s failure to provide notice of the status and the dismissal to the plaintiffs. In these circumstances, the defendants are entitled to have their costs paid by the plaintiffs as parties who opposed for understandable reasons the indulgence being granted. Bains v. Morrow, supra, at para. 38; Fox v. Bourget (1987), 17 CPC (2d) 94. The counsel for the defendants may send to me their costs outline and submissions in writing at the Barrie Court House within 10 days, and the respondents shall have 10 days to send to me any responding submissions on costs.
HOWDEN J.
Date: September 26, 2014