SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Laderian v. Olaosebikan
2014 ONSC 7482
HEARD: December 29, 2014
BEFORE: MASTER R.A. MUIR
COUNSEL: Alfred J. Esterbauer, counsel to the lawyer for the plaintiff Richard Campbell for the defendant Loui Opashinov in his personal capacity
ENDORSEMENT
1The plaintiff brings this motion pursuant to Rule 37.14 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) for an order setting aside the order of the registrar dated June 21, 2010, dismissing this action for delay.
2The defendant Loui Opashinov (“Mr. Opashinov”) in his personal capacity opposes the relief sought. Mr. Opashinov’s lawyer of record in this action, appointed by his insurer, has not responded to this motion and did not appear today. The defendant Sola Olaosebikan has also not responded and did not appear today.
3This action arises out of a very serious motor vehicle accident that took place on July 2, 2004. The accident has given rise to several other proceedings. It appears that there are three actions currently outstanding, including this one. These three actions have been ordered to be tried together. A pre-trial is set for January 5, 2015 and the trial date has been fixed for March 2016 for 45 days.
4This action and the two related actions were the subject of common discovery. Discovery is complete and a mediation session has taken place. All that remains is for this action to be set down for trial.
5This action was dismissed by the registrar on June 21, 2010. It appears most likely that the order did not come to the attention of the plaintiff’s lawyer until March 2011 when the plaintiff’s lawyer attempted to file the trial record. This motion was not brought until the spring of 2014 because of what the plaintiff’s lawyer refers to as an understanding that this action would progress to trial in tandem with the related actions.
6The law relating to motions for an order setting aside an administrative dismissal order is summarized in my decision in Ranka Enterprises Inc. v. Magick Woods Ltd., 2013 ONSC 2620 (Master) at paragraphs 5-8. Four factors are of central importance. The court must consider the explanation for the delay, whether the deadline was missed due to inadvertence, any delay in bringing the motion to set aside the dismissal order and prejudice to the defendant. I have considered and applied those factors and the other principles set out in Ranka. In my view, it is just that the dismissal order be set aside.
7In my view, this motion was not brought promptly. Regardless of the “understanding” the plaintiff’s lawyer may have had with respect to the three actions proceeding in tandem, he should not have waited for three years to bring this motion. There was no express consent from the defendants to setting aside the dismissal. His client’s action had been dismissed. This is a serious matter and it should have been dealt with in short order. This element of the test has not been met.
8I am, however, satisfied that the set-down deadline was missed due to inadvertence. The affidavit and documentary evidence demonstrates that the plaintiff and her lawyer always intended to proceed with this claim. The unchallenged evidence from the plaintiff’s lawyer is that he simply failed to note the separate set-down deadline applicable to this action as he understood all three actions were operating on the same timetable. This understanding has not been contradicted by evidence from any of the other counsel involved with these actions. He has given evidence that he was monitoring the progress of the other actions which informed his handling of this action. In my view, this part of the test has been met by the plaintiff.
9In my view, there has not been any significant delay on the part of the plaintiff in this action. This action arises from a very serious accident. Significant damages and catastrophic injuries are alleged by the minor plaintiffs in one of the related actions. Those other actions have taken a considerable period of time to get ready for trial. Mr. Opashinov consented to an order that this action be tried with those actions. In fact, it was Mr. Opashinov who brought the motion for trial together. It is clear from the evidence concerning the state of the other actions that this matter could not have been scheduled for trial any earlier than the current March 2016 date regardless of any effort on the part of the plaintiff. In my view, this factor has also been met by the plaintiff.
10Even if the plaintiff could be held responsible for some of the delay to date, I am satisfied that the plaintiff has rebutted any applicable presumption of prejudice. Discoveries and production are complete. The accident was thoroughly investigated. Accident reconstruction reports have been prepared and served. Witnesses are available. Mr. Opashinov’s ability to defend this action at trial is made clear by the contents of his pre-trial memorandum which has been filed in connection with the January 5, 2015 pre-trial conference.
11It is true that Mr. Opashinov is seriously ill. His illness may affect his ability to testify at trial. However, he has been examined for discovery and that evidence is available in addition to the other available liability evidence. Moreover, the trial judge is possessed of powers to ensure that any unfairness to Mr. Opashinov resulting from his illness can be mitigated as much as possible. Rule 36.01 is also available for the purpose of having Mr. Opashinov’s evidence taken before trial.
12When deciding motions of this nature, the court is to adopt a contextual approach in which it weighs all relevant considerations to determine the result that is just in the circumstances. The court must, of course, balance the strong public and private interest in promoting the timely resolution of disputes with the entitlement of plaintiffs to have their claims decided on the merits. However, the general preference in our system of civil justice is for the determination of disputes on their merits.
13The plaintiff has satisfied three of the four Reid factors, including the key consideration of prejudice. The significant delay in bringing this motion is certainly a serious and troubling matter. However, when placed in context with the other applicable factors I do not view the motion delay, by itself, as significant enough to justify a dismissal of this motion.
14For these reasons, I have concluded that it is just in the circumstances of this action that the dismissal order of the registrar dated June 21, 2010 be set aside.
15The parties agree that there should be no order with respect to the costs of this motion. I agree that such an order is fair and reasonable in the circumstances.
16I therefore order as follows:
(a) the order of the registrar of June 21, 2010 is hereby set aside;
(b) this action shall be set down by February 27, 2015; and,
(c) there shall be no order with respect to the costs of this motion.
Master R.A. Muir
DATE: December 29, 2014