ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 07-31055
DATE: 2014-12-15
B E T W E E N:
MICHAEL ALEXANDER HERNANDEZ
William G. Scott, for the Plaintiff
Plaintiff
- and -
JAMIE LARIVIERE, DENIS LARIVIERE and WESTERN ASSURANCE COMPANY
Nina L. Di Pietro, for the Defendant, Western Assurance Company
Defendants
HEARD: November 27, 2014
JUDGMENT
THE MOTION
[1] The Plaintiff moves for an Order setting aside the Order Dismissing Action for Delay dated December 21, 2011 against only the defendants, Jamie Lariviere and Western Assurance Company.
STATEMENT OF FACTS
[2] The Plaintiff’s claim is for personal injuries sustained in a motor vehicle accident on June 12, 2005 in which his vehicle was struck by a vehicle making a left turn.
[3] The Plaintiff’s lawyer was retained by the Plaintiff on or about September 6, 2006.
[4] The Statement of Claim was issued May 3, 2007. The Defendant, Jamie Lariviere, is the driver of the at fault vehicle. The Defendant, Denis Lariviere, is the owner of the at fault vehicle. Western Assurance is named as a defendant pursuant to the underinsured and/or uninsured provisions of the Plaintiff’s motor vehicle policy of insurance. This is the second Statement of Claim issued by the Plaintiff, having previously issued a Statement of Claim on June 15, 2006 bearing Court File No. 06-25062, while represented by his former counsel.
[5] The Statement of Claim was served on Western Assurance on May 18, 2007.
[6] At the time the Plaintiff’s lawyer was retained, he did not know that the Plaintiff’s former lawyer had previously issued a Statement of Claim with respect to this matter bearing Court File No.: 06-25062. Sullivan Festeryga also represents the Defendant, Denis Lariviere in Court File No.: 06-25062 in which the plaintiffs were Michael Hernandez, Julio Hernandez and Daysi Hernandez and the defendants were Denis Lariviere and Western Assurance Company (“Western Assurance”).
[7] On May 30, 2007 Western served a Notice of Intent to Defend and requested that the first Statement of Claim be wholly discontinued.
[8] On August 23, 2007, November 7, 2007, July 8, 2008 and December 3, 2008 Western made further written requests to the Plaintiff to clarify his pleadings and advise defence counsel which action would proceed.
[9] On February 26, 2008 and September 5, 2008, the Defendant, Denis Lariviere also sent written requests to the Plaintiff to clarify his pleadings and advise which action would proceed.
[10] July 10, 2008, was the first date scheduled for the Plaintiff’s examination for discovery, which was cancelled by the Plaintiff on July 4, 2008.
[11] On January 5, 2009, was the second date scheduled for the Plaintiff’s examination for discovery. The Plaintiff failed to attend on this date, or to provide any documentary disclosure in support of his claim for personal injury damages as of this date.
[12] On January 13, 2009, Western requested the Plaintiff’s Affidavit of Documents and Schedule “A” productions.
[13] On April 27, 2009, after several attempts by Western to re-schedule the Plaintiff’s examination for discovery without response, Western sent correspondence to the Plaintiff on this date requesting a response within one week with regard to re-scheduling his discovery, failing which defence counsel would select one of the proposed dates. There was no response from the plaintiff.
[14] On May 8, 2009, Western served a Notice of Examination on the plaintiff returnable September 23, 2009.
[15] On May 25, 2009, Western further requested the Plaintiff’s Affidavit of Documents and Schedule A productions.
[16] On September 23, 2009, the third date scheduled for the Plaintiff’s examination for discovery, the plaintiff failed to attend. As of this date, the Plaintiff had not served an Affidavit of Documents, or any productions in support of his claim, despite that the Statement of Claim had been issued more than two years earlier.
[17] On October 29, 2009, a related accident benefits action by the Plaintiff against Western arising from the subject Accident, bearing Court File No. 07-32083, is dismissed by Registrar’s Order.
[18] On November 2, 2009, Western served a Notice of Examination on the Plaintiff returnable on December 7, 2009.
[19] On December 2, 2009, the plaintiff forwarded some productions to defence counsel.
[20] December 7, 2009, was the fourth date scheduled for the Plaintiff’s examination for discovery, which is cancelled at the Plaintiff’s request.
[21] January 4, 2010, was the fifth date scheduled for the Plaintiff’s examination for discovery. The Plaintiff’s discovery was completed at this time, close to three years after the action was commenced.
[22] On January 5, 2010 and January 21, 2010 – the Defendants, respectively, sent correspondence to the Plaintiff requesting fulfilment of Undertakings and Refusals.
[23] On April 13, 2010, Western gave notice to the Plaintiff that an independent medical examination of the Plaintiff by Dr. Devlin had been scheduled for June 22, 2010.
[24] On June 3, 2010, Western sent further correspondence to the Plaintiff seeking responses to Undertakings in advance of the independent medical examination by Dr. Devlin.
[25] On June 17, 2010, Western was forced to cancel the independent medical examination by Dr. Devlin scheduled for June 22, 2010 as a result of the Plaintiff’s failure to answer the Undertakings for medical disclosure given at his examination for discovery.
[26] On June 17, 2010, Western sent further correspondence to the Plaintiff requesting answers to Undertakings and Refusals so that the appointment with Dr. Devlin could be rescheduled.
[27] On August 4, 2010, Western sent further correspondence to the Plaintiff requesting answers to Undertakings and Refusals so that the appointment with Dr. Devlin could be rescheduled.
[28] On September 17, 2010, Western gave notice that an independent medical examination by Dr. Devlin’s had been scheduled for March 3, 2011.
[29] On February 3, 2011, Western brought a motion for an Order to compel the Plaintiff to fulfill the outstanding Undertakings and Refusals given at his examination for discovery. The motion proceeded on consent and the Plaintiff was ordered to pay costs of the motion in the amount of $250.00, payable within 30 days of the date of the Order. The Plaintiff did not comply with the terms of the Order dated February 3, 2011.
[30] On September 12, 2011, the Superior Court issued a Status Notice: Action not on Trial List, that the action shall be dismissed for delay unless the matter was inter alia set down for trial, terminated by any means or a judge ordered otherwise, within 90 days of service of the said Notice.
[31] On September 13, 2011, the Status Notice was received by the Plaintiff’s lawyer’s office.
[32] On December 21, 2011, the Registrar issued an Order dismissing the action for delay.
[33] On January 10, 2012, the court informed the Plaintiff’s lawyer that the action had been dismissed.
[34] On June 5, 2012, the Defendant, Denis Lariviere, sent correspondence to the Plaintiff inquiring whether the Plaintiff intended to bring a motion to set aside the Registrar’s dismissal order.
[35] On July 30, 2012, Western sent correspondence to the Plaintiff inquiring whether the Plaintiff intended to bring a motion to set aside the Registrar’s dismissal Order.
[36] On August 22, 2012, the Defendant, Denis Lariviere, again sent correspondence to the Plaintiff requesting confirmation of the Plaintiff’s intentions within ten (10) days.
[37] On September 25, 2012, the Plaintiff served a Notice of Motion (returnable on a date to be fixed) to set aside the Order Dismissing Action for Delay.
[38] On November 20, 2012, the Plaintiff served a Motion Record to set aside the Order Dismissing Action for Delay, initially returnable December 13, 2012, almost one year after the action was dismissed by the Local Registrar.
THE ISSUE
[39] Should the Order Dismissing Action for Delay dated December 21, 2011 be set aside?
THE LAW
THE APPLICABLE RULES
[40] Rule 48.14 of the Rules of Civil Procedure makes it mandatory that the Registrar dismiss an action if more than two years have passed since the filing of the first statement of defence or notice of intent to defend, the action has not been set down for trial or termination by any means, a judge presiding at a status hearing has not ordered otherwise and the Registrar has given 90 day notice that the action will be dismissed for delay
Rule 48.14 of the Rules of Civil Procedure
[41] Rule 37.14 of the Rules of Civil Procedure provides a mechanism for setting aside a Registrar’s order. It dictates that the moving party must serve their motion forthwith after the order comes to their attention and name the first available hearing date that is at least three (3) days after service of the notice of motion.
Rule 37.14 of the Rules of Civil Procedure
SETTING ASIDE DISMISSAL ORDER
[42] In deciding whether to set aside a Registrar’s dismissal order, the Court applies a contextual analysis and considers all relevant factors to determine the order that is just in all the circumstances of the particular case. The four (4) Reid factors are likely to be of central importance, but are not exhaustive:
Explanation of the Litigation Delay: The plaintiff must adequately explain the delay in the progress of the litigation from the institution of the action until the deadline for setting the action down for trial as set out in the Status Notice. The Plaintiff must satisfy the Court that steps were being taken to advance the litigation toward trial, or if such steps were not taken, to explain why. …It is absolutely essential that the plaintiff lead satisfactory evidence that he personally always intended the action to proceed to trial without delay, that he did not assent to the delay, and that he always reasonably assumed it was so proceeding or made appropriate inquiries of his solicitors. If either the solicitor or the client made a deliberate decision not to advance the litigation toward trial then the motion to set aside the dismissal will fail.
Inadvertence in Missing the Deadline: The Plaintiff or his solicitor must lead satisfactory evidence to explain that they always intended to set the action down within the time limit set out in the status notice, or request a status hearing, but failed to do so through inadvertence. In other words the penultimate dismissal order was made as a result of inadvertence.
The Motion is brought Promptly: The plaintiff must demonstrate that he moved forthwith to set aside the dismissal order as soon as the order came to his attention.
No Prejudice to the Defendant: The plaintiff must convince the Court that the defendant has not demonstrated any significant prejudice in presenting their case at trial as a result of the plaintiff’s delay or as a result of steps taken following the dismissal of the action.
A plaintiff does not necessarily need to establish all four of the Reid factors in each case to satisfy the burden in setting aside the Order. However, it may be in a particular case one factor upon which the plaintiff comes up short is of such importance that taken together with the other factors, the plaintiff must fail.
Reid v. Dow Corning Corp. [2001] O.J. No. 2365 at para. 41 & 42, rev’d on other grounds [2002] O.J. No. 3414
Scaini v. Prochnicki 2007 ONCA 63, [2007] O.J. No. 299 at para. 21 & 25
Marche D’Alimentation Denis Theriault Ltee. V. Giant Tiger Stores Ltd. 2007 ONCA 695, [2007] O.J. No. 3872 at para. 22
ANALYSIS
EXPLANATION OF THE LITIGATION DELAY
[43] I find that the Plaintiff has failed to establish an adequate or reasonable explanation for the litigation delay. This action arises out of an incident that occurred on July 12, 2005 and the Statement of Claim within action was issued on May 3, 2007. This is the second Statement of Claim issued by the Plaintiff. There was nothing preventing the claim from being brought forward and dealt with expeditiously. However, the examination for discovery of the Plaintiff was not completed until January 4, 2010 after four previous failed attempts to complete his discovery. Despite several written requests, the Plaintiff did not provide an affidavit of documents or any productions in support of his claim until December 2, 2009, shortly before the fifth scheduled discovery date. The Plaintiff failed to comply with undertakings given at his examination for discovery, necessitating a motion and cancellation of an independent medical assessment scheduled by counsel for the Defendant Western. The Plaintiff then failed to comply with the terms of the order of Justice Milanetti dated February 3, 2011.
[44] It is the Plaintiff who bears the primary responsibility under the Rules of Civil Procedure for the progress of the action. In the within case Western was the party who acted promptly making repeated efforts (without response) to obtain damages documentation, schedule and complete the Plaintiff’s examination for discovery and move to compel responses to the Plaintiff’s own undertakings. The Plaintiff essentially did not initiate any procedural steps in the action subsequent to their writing to solicitors for Denis Lariviere on July 7, 2008 in order to reschedule the examination for discovery of Denis Lariviere to January 5, 2009 and attendance at that discovery.
[45] There is no direct evidence from the Plaintiff Michael Hernandez on this motion to explain the litigation delay or setting out that he had an intention to pursue this action. Mr. Hernandez did not cooperate in the prosecution of his action by failing to attend for discovery on multiple occasions. Counsel for Western submits that it can be inferred from this that Mr. Hernandez sanctioned the delay in the litigation. I find that the inference is a reasonable one but in any event there is no evidence before me that Mr. Hernandez took any steps to see that his counsel was proceeding with his claim.
[46] It is alleged that a Trial Record was drafted by Plaintiff’s counsel on October 27, 2011 in response to the Status Notice, however it was not served or filed. There is no explanation as to why. In the three decisions of Soldatova v. Bruno, Western v. Hernandez and Thomas v. McLelland, all of which concerned actions of Ferro & Company, Plaintiff’s counsel in the case at bar, the Court noted the chronic delays of counsel, inadequate file management practices and reliance on staff who are inadequately supervised. While the Court allowed the plaintiff’s motion in Soldatova, it noted that counsel should not expect to receive similar consideration and indulgences in the future. In Hernandez (involving this Plaintiff’s accident benefits action against Western), the Court upheld the dismissal order, as did the Court in Thomas, concluding that despite the Court’s comments in Hernandez, nothing had changed in counsel’s office.
Soldatova v. Bruno [2011] O.J. No. 1421 at para. 26
Thomas v. McLelland [2012] O.J. No. 5882 at para. 18-22
Hernandez v. Western Assurance Co. [2011] O.J. No. 4575, at para. 9
[47] Even if, as is alleged, this file fell out of the Plaintiffs’ lawyer’s firm’s diary system, and no steps were taken to advance the litigation between March 24, 2010 and January 24, 2011, this does not explain why there was no response to numerous correspondence from defence counsel during this period.
INADVERTENCE IN MISSING THE DEADLINE
[48] I find that the Plaintiff has failed to establish that his failure to set the action down for trial or request a status hearing within the time limits set out in the Status Notice was the result of inadvertence.
[49] Notwithstanding the service of a Status Notice, the Plaintiff should be aware that under the Rules of Civil Procedure, failure to set the action down for trial within the prescribed time would lead to the action being dismissed.
Marche D’Alimentation, supra, at para. 26
Aguas v. Rivard Estate 2011 ONCA 494, [2011] O.J. No. 3108 at para. 53
[50] In the case at bar, the Status Notice was received by the Plaintiff’s lawyer’s office on September 13, 2011. Accordingly, the Plaintiff was aware as of that date that action needed to be taken to ensure that a dismissal order would not be issued. The evidence of the Plaintiff’s lawyer, Lou Ferro, is that a Trial Record was drafted and, accordingly, the Plaintiff was fully aware of the approaching dismissal date. Had the Plaintiff simply requested a Status Hearing within the time limit, a Registrar’s Order of dismissal could not have been made, notwithstanding the apparent lack of service of the Statement of Claim on the non-responding defendant, Jamie Lariviere (something which was known to the Plaintiff’s counsel since October 2007).
[51] Lou Ferro, who has sworn an Affidavit in support of this motion, does not have personal knowledge of inadvertence on the part of the handling lawyer(s) at the firm. It was Mr. Ferro’s evidence, in part, on cross-examination that, “…I don’t know why this file fell apart like it did” [p. 41-42; q. 174], yet he attributed much of the problem to the firm’s move toward a paperless system of file management. The direct evidence of the handling lawyer(s) is absent from this motion.
[52] It is useful to refer to the words of Cavarzan J. in Soldatova v. Bruno at para. 26:
Mr. Ferro ought not to be permitted to claim no knowledge of key events because of a breakdown of communications between him and his agents who were assigned to act in his stead. The administrative chaos reflected in the handling of this file borders on negligence. It is a major irritant and a source of frustration to opposing counsel, not to mention justice delayed to their clients. Mr. Ferro, in effect, sets a leisurely pace to suit his own convenience…. Mr. Ferro should not expect to receive similar consideration and indulgences in the future.
[53] Justice Cavarzan found that a pattern of chaos emerged, beyond mere “sloppiness”.
[54] Mr. Ferro’s chronic delays were also noted in Hernandez v. Western Assurance Company [2011] O.N.S.C. 6042. In that case which involved this Plaintiff’s accident benefits action against Western, Ramsay J. upheld a dismissal order, finding “the deadline was missed because Ferro & Company have inadequate file management practices and they rely on staff who are inadequately supervised (at para. 9).” I conclude from the facts of this case that that state of affairs still continues in Mr. Ferro’s office.
[55] In Thomas v. McLelland, Campbell J. found as follows in refusing to set aside the Registrar’s Dismissal Order:
Mr. Ferro’s chronic casual and cavalier approach to his duties and the apparent continued lack of supervision of his office has clearly passed the point of “inadvertence”.
[56] Within the context of this case and after various admonitions from my colleagues on prior cases, Mr. Ferro’s inaction can fairly be interpreted as both intentional and deliberate. It is far past time for Mr. Ferro to take responsibility for his actions and for the court to respond to a clear pattern of inattentiveness and neglect. In his reasons in Marche D’Alimentation Denis Theriault Ltee v. Giant Tiger Stores Ltd. [2007] O.N.C.A. 695 at para. 30, Sharpe J.A. found that in circumstances of inordinate delay, inadvertence can be distinguished from negligence. He found that distinction would lead to a consideration that the Plaintiff will not be left without a remedy upon failure to reinstate the action. He stated as follows:
One important consideration is that the plaintiff will not be left without a remedy. I recognize here the need to ensure that adequate remedies are afforded where a right has been infringed. The law will not ordinarily allow an innocent client to suffer the irrevocable loss of the right to proceed by reason of the inadvertence of his or her solicitor: see e.g. Chiarelli v. Weins (2000) 2000 3904 (ON CA), 46 O.R. 3d 780, at para. 9.
However this calculus implicitly assumes that the court is left with a stark choice between defeating the client’s right and forcing the opposite party to defend the case on its merits. That assumption is faulty where, as in this case, the solicitor’s conduct is not mere inadvertence, but amounts to conduct likely to expose the solicitor to liability to the client. When the solicitor is exposed in this way, the choice is different: refusing the client an indulgence for delay will not necessarily deny the client a legal remedy…..
A second consideration is that the nature of the delay and the solicitors’ conduct in this case amount to more than that kind of lapse or inadvertent mistake that the legal system can countenance. We should opt for a resolution that discourages this type of conduct which undermines the important value of having disputes resolved in a timely fashion. The decision of the Master sends the right message and provides appropriate incentives to those involved in the civil judicial system…..
Moreover, excusing a delay of this kind magnitude and gravity risks undermining public confidence in the administration of justice. Lawyers who fail to serve their clients threaten public confidence in the administration of justice[…] There is a risk that the public would perceive disregarding the solicitor’s conduct in the circumstances of this case as the legal system protecting its own. Excusing a delay of this kind would through[sic] into question the willingness of the courts to live up to the stated goal of timely justice.
[57] I find these words applicable to the case before me.
MOTION IS BROUGHT PROMPTLY
[58] I find that the Plaintiff did not comply with the requirements of Rule 37.14 and the third Reid factor to move forthwith to set aside the dismissal order as soon as it came to his attention.
[59] Lou Ferro’s evidence on cross-examination was that his office became aware of the Registrar’s dismissal order on January 10, 2012 when an attempt was made to requisition a Status Hearing. It cannot be said that thereafter the Plaintiff moved forthwith, or that there were prompt efforts to bring the motion herein as required by Rule 37.14. It took almost four months after becoming aware of the dismissal order, for the Plaintiff to obtain a copy of the said Order from the Court on April 30, 2012. There has been no explanation for this delay and Mr. Ferro’s evidence on cross-examination was that he did not know why it took this long [p. 133; qq. 545-546]. Moreover, it took a further five months to serve a Notice of Motion, albeit with no fixed return date, on September 25, 2012; and a further two months to prepare and serve a motion record, originally returnable on December 13, 2012, to choose a fixed return date on a long motions list.
[60] While it is alleged that the Plaintiff intended to bring motion to set aside the Registrar’s dismissal order and that a motion record was drafted on or about May 2, 2012, the Plaintiff did not provide any notice to the Defendants during the aforesaid delay period that he intended to bring this motion or that he intended to continue with this action. This is notwithstanding direct correspondence from defence counsel in June and July, 2012.
[61] A total of eleven (11) months passed between the date this action was dismissed by the Registrar and the date a motion record was filed and served. This cannot constitute the motion being brought promptly.
[62] In Gagne v. Toronto Police Services Board, it was held that a delay over nine months between the time the dismissal came to the Plaintiff’s attention and the date the motion was booked cannot be considered moving promptly.
Gagne v. Toronto Police Services Board [2008] O.J. No. 1474, at para. 39
[63] In Cozzi v. Cordeiro, the court held that waiting approximately ten (10) months to serve and file a motion could not be considered moving promptly as required by the Rules and the third Reid factor.
[64] Close scrutiny of Plaintiff’s counsel’s actions and inactions in carrying on this litigation go beyond the realm of “inadvertence”.
PREJUDICE TO THE DEFENDANT
[65] Counsel for Western argues that given that the event giving rise to the action occurred close to 6.5 years before the action was dismissed on December 21, 2011 and the time that has passed since then, prejudgment interest rates provided by the statute have run unnecessarily and Western has been forced to keep a million dollar potential liability on its books for an unnecessary period of time. I do not see these as elements of prejudice to the defendant which cannot be cured by the order setting aside the Registrar’s dismissal.
[66] However, given the passage of time, the results of the medical examination of the Plaintiff by the Defendant’s doctor are no longer current and would probably have to be reinstituted should the Registrar’s order be set aside. Given the history of these proceedings this could only lead to more delay and possibly more “inadvertence”. Even if it were found that Western has not incurred any actual prejudice, this one criteria is not sufficient to allow the Plaintiff to succeed on this motion. In Marche D’Alimentation the court held that it is not enough for the Plaintiff to show that the Defendant could advance his case despite the delay if the matter were allowed to proceed to trial. There are four branches to the Reid test and according to Scaini those four factors are not exhaustive. Moreover, the jurisprudence identifies as relevant to the fourth Reid factor, the security of legal position gained by a litigant through a court order granted because of delay or default: see Halton Community Credit Union Ltd. v. ICL Computers Canada Ltd. (1985), 1 C.P.C. (2d) 24 (Ont. C.A.).
[67] If the action were allowed to proceed simply because there is no actual, proven prejudice to the defendant, it would in essence change the test developed in Scaini and Marche D’Alimentation. The time limits under the rules would cease to have any real meaning. One factor cannot be made to determine the outcome of emotion of this nature.
Gagne, supra at para. 47
Kozzi, supra at para. 83
[68] In Thomas v. McLelland, the Court held that notwithstanding the fact that no prejudice arose to the defendant in that case, given the other three Reid factors and in the context of the facts, to allow the Plaintiff’s motion and set aside the dismissal order would bring the administration of justice into disrepute. The Court observed that with regard to its gatekeeper mandate, “What we permit, we promote”.
Thomas v. McLelland, supra, at para. 32-36
[69] The Ontario Court of Appeal has recognized as relevant to the fourth Reid factor the security of legal position gained by a litigant through a court order granted because of delay or default. Finality is a central principle in the administration of justice and is a compelling consideration. 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, at some point the interest in finality must trump the opposite party’s plea for an indulgence. This is especially true where the opposite party has another remedy available. Refusing the Plaintiff an indulgence for delay will not deny him a legal remedy.
March D’Alimentation, supra, at para. 37-38
[70] In the circumstances of this case the finality principle must trump the Plaintiff’s request for an indulgence and restricting the Plaintiff’s claim to an action against his lawyer is a just result on a contextual basis that balances the interest of the parties and takes into account the public’s interest in the timely resolution of disputes.
[71] In Dunn v. Best Built Doors Inc., the court held that the nature and sufficiency of the evidence filed by the plaintiff in support of his motion is an appropriate factor for the court to consider as part of its decision making process. Orders of the Registrar are orders of the court and they deserve to be respected. The nature and evidence required on these motions will vary from case to case. However, the evidence should include an affidavit directly from the plaintiff.
Dunn v. Best Built Doors Inc. [2011] O.J. No. 2809 at para. 31-32
[72] If the motion record of the moving party is deficient with respect to an explanation of litigation delay, the court is bound to make a decision based on the evidence before it.
Li v. Powermar [2006] O.J. No. 4264 at para. 57
[73] The Plaintiff’s counsel’s contention that Mr. Hernandez did not intend to abandon or delay the proceeding of this action is belied by the fact that the Plaintiff’s own evidence is absent from this motion. While Mr. Hernandez provided sworn evidence with regard to his intentions in support of his motion to set aside the Registrar’s dismissal order in his accident benefits action arising from the subject motor vehicle accident (which motion was dismissed on October 18, 2011, two months before the dismissal order in this action was issued), his evidence is absent from this motion to set aside the Registrar’s dismissal order in this tort action. The Plaintiff’s failure to meet the Reid factors in this case is exacerbated by his lack of evidence to what steps he took to ensure that a dismissal order would not be issued in the tort action.
CONCLUSION
[74] Applying the Reid and all relevant factors to the case at bar:
a) The Plaintiff has not adequately explained the delay in the progress of this action from the institution of the action until receipt of the Status Notice on September 13, 2011.
b) The Plaintiff has not led sufficient evidence to establish that his missing of the deadline in the Status Notice was solely due to inadvertence.
c) The Plaintiff did not move promptly to bring the within motion. The Plaintiff was aware of the approaching dismissal date in December of 2011 and was advised on January 10, 2012 of the dismissal Order. The plaintiff failed to move forthwith to have the order set aside as evidenced by the eleven (11) month delay before a motion record was served.
d) Failure to establish substantial prejudice if the requested relief is granted is not sufficient to allow the plaintiff to succeed on this motion.
[75] Based upon the foregoing, the Plaintiff’s motion is dismissed with costs. If the parties cannot agree on costs, the Defendant Western’s counsel may within 20 days provide me with written submissions with respect to costs, not to exceed five pages exclusive of any dockets. Plaintiff’s counsel will have 10 days to respond and Defendant’s Western counsel five further days to provide a reply to the Plaintiff’s submissions.
Lofchik J.
Released: December 15, 2014
COURT FILE NO.: 07-31055
DATE: 2014-12-15
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
MICHAEL ALEXANDER HERNANDEZ
Plaintiff
- and –
JAMIE LARIVIERE, DENIS LARIVIERE and WESTERN ASSURANCE COMPANY
Defendants
REASONS FOR JUDGMENT
TRL:mw
Released: December 15, 2014