Douglas v. Lewis, 2015 ONSC 1033
COURT FILE NO.: CV-10-410111
MOTION HEARD: 20140715
REASONS RELEASED: 20150220
SUPERIOR COURT OF JUSTICE – ONTARIO
BETWEEN:
JEFFREY DOUGLAS
Plaintiff
- and-
Dr. MICHAEL LEWIS, Dr. NICOLE KOZIEL, The TORONTO WESTERN HOSPITAL, Dr. MURRAY, SCHAILA RAEES, The TORONTO POLICE SERVICE, POLICE CONSTABLE DARCY WOOD (badge 9142), DETECTIVE CONSTABLE MARK WEBER (badge 89703) and the FUNCTIONALRESTORATION PROGRAM
Defendants
BEFORE: MASTER D. E. SHORT
COUNSEL: Jeffrey Douglas Fax: 416 363.3100
plaintiff in person
H. Michael Rosenberg Fax: (416) 868-0673
for the Defendants, Dr. Lewis
and Dr. Koziel
Amanda C. Smallwood Fax: 416-596-0952
for the Defendant Dr. Murray
Sean Murtha Fax: (416) 361-2535
for the Defendants, The Toronto
Western Hospital, Schaila Raees, The
Toronto Police Service and Constables
Reasons for Decision
I. Motion to Set Aside Registrar’s Dismissal
[1] The plaintiff brings this motion pursuant to Rule 37.14 of the Rules of Civil Procedure, (the "Rules") for an order setting aside the order of the registrar dated July 5, 2013, dismissing this action for delay. This action was dismissed by the registrar due to the failure on the part of the plaintiff to comply with the requirements of Rule 48.14 which provided at the time that an action could be dismissed by the registrar under Rule 48.14 if an action has not been set down for trial within two years of the first defence being filed.
[2] The defendants oppose the granting of the relief requested on this motion.
II. Contextual Introduction
[3] This case arises from the issuance of a Form 1 under Ontario’s Mental Health Act with respect to the plaintiff Jeffrey Douglas. A Form 1 is an Application for Psychiatric Assessment (“APA”).
[4] The Mental Health Act gives every physician in Ontario the right to sign an Application for Psychiatric Assessment. To hold a patient for psychiatric assessment, the physician must complete a Form 1. This authorizes the detention and assessment of an individual who meets the criteria in the Act in a psychiatric facility/hospital for up to 72 hours.
[5] The application is sufficient authority to take the person who is named in the application into custody and to detain, restrain, observe and examine him/her in a psychiatric facility.
[6] General information on this process is found on the website of Ontario’s Psychiatric Patient Advocate Office (“PPAO”). The site states:
“The PPAO is an arm’s length program of the Ministry of Health and Long-Term Care. It operates under a Memorandum of Understanding (MOU) which sets out its mandate and its accountability relationship to the Ministry. Under the terms of the MOU, the PPAO submits to the Minister of Health and Long-Term Care an annual report detailing its rights protection activities on behalf of vulnerable persons with mental illness and releases the report internally to the Ministry and externally to its stakeholders.”
[7] On the use of “restraint” the PPAO notes:
“Together, these provisions govern the definition of "restraint" under the Act, which means to "place under control when necessary to prevent serious bodily harm to the patient or to another person by the minimal use of such force, mechanical means or chemicals as is reasonable having regard to the physical and mental condition of the patient." Finally, section 53 requires that any use of restraint "shall be clearly documented in the patient’s record of personal health information by the entry of a statement that the patient was restrained, a description of the means of restraint and a description of the behaviour of the patient that required that the patient be restrained or continue to be restrained.”
III. Overview of Action
[8] The original counsel for Mr. Douglas filed a Notice of Action on September 8, 2010. The action was based upon issues which the plaintiff takes with respect to the completion of Form 1 documents with respect to him.
[9] The plaintiff claims substantial general damages and punitive damages, in part, on the basis asserted in the following two paragraphs from the Notice of Action:
“2. On September 11, 2008 the Plaintiff attended at Toronto Western Hospital for a functional restoration meeting….
Dr. Michael Lewis filled in a form one from the Ministry of Health. The form is based on an allegation of the plaintiff, threatening to cause harm to himself and that seriously bodily that serious bodily harm will be caused by the plaintiff to himself and to another person. There was no merit to this form, and it was based on hearsay from an unnamed source which was inaccurate.”
“4. The plaintiff was detained against his will at Toronto Western Hospital and was treated in a manner that would justify the damages being sought above. Dr. Kozeil filled in a second form one, which again was done without merit and was based on hearsay from an unnamed source that was inaccurate. This second form led to a further unwarranted detention. A medical intern who will be named later of Dr. Kozeil, further aggravated the plaintiff unnecessarily.”
[10] The Notice of Action asserted as well:
“5. The plaintiff was not dealt with in a proper manner by the hospital, its physicians and staff. He suffered mental anguish, physical pain and humiliation, etc. due to the actions and inactions of the Defendants. The defendants even refused to provide him with his necessary medications.
- Had it not been for the action, inactions, willful misdiagnoses, etc. by the Defendants, the unwarranted detention would not have taken place. Furthermore, the plaintiff would not have needlessly suffered physically and mentally throughout the entire ordeal….”
[11] Subsequently a Statement of Claim was issued and then an Amended Statement of Claim was issued on December 10, 2010.
[12] Statements of Defence were served by various of the defendants between late March of 2011 and February of 2012. After some delay a Discovery Plan was agreed upon and all the defendants had been examined for discovery by July of 2013. The plaintiff has also been examined for discovery on two occasions
[13] The version of Rule 48 in force at the time (with my emphasis added)read in part:
Status Notice
(1) Unless the court orders otherwise, if an action in which a defence has been filed has not been placed on a trial list or terminated by any means within two years after the first defence is filed, the registrar shall serve on the parties a status notice in Form 48C.1 that the action will be dismissed for delay unless, within 90 days after service of the notice, the action is set down for trial or terminated, or documents are filed in
Dismissal by Registrar
(4) The registrar shall dismiss the action for delay, with costs, 90 days after service of the status notice, unless,
(a) the action has been set down for trial or restored to a trial list, as the case may be;
… or
(d) the judge or case management master presiding at a status hearing has ordered otherwise.
[14] The Court’s Case History indicates that a “Status Notice: Action Not on Trial List” was generated in late March of 2013 (i.e. 2 years after the first defence was filed,, but just over one year from when the last defence was filed).
[15] The plaintiff indicates that he never received the notice and the affidavit from his father who controlled the mailbox to which it would have been expected to be sent, confirms that he does not recall ever seeing the notice. The affidavit of the Plaintiff’s father reads in part:
“5. The Plaintiff was provided with a letter by me suddenly [sic] of his action being dismissed on or about the end of July 2013. The Plaintiff informs me that he had no knowledge of any notice of dismissal. The Plaintiff resides with me and resided with me in 2013 as well. The Plaintiff was away for the last two weeks of July, 2013. I am the only person who had the mail box key and I check the mail every working day. The status notice was never received by us.
- By my review of the Status Notice from the Court file I am informed and verily believed that it was supposedly sent out by the Registrar on March 28, 2013, and we never received this. I provide any and all pieces of mail which are addressed to my son, Jeffrey Douglas. If this came to us in the mail, I would have given it to him.
[16] There was no cross examination of the affiant by counsel for any of the defendants.
[17] The Notice of Dismissal which was issued automatically by the court, when no status hearing was scheduled, was dated July 5 2013. The plaintiff’s material admits that the dismissal document was received by him in late July, 2013. The plaintiff took steps to schedule this motion in March of 2014.
[18] All the defendants oppose the setting aside of that registrar’s dismissal.
IV. Advancing the Plaintiff’s Claim
[19] The Statement of Claim was served and defences were filed on behalf of various groups of defendants over a period of 11 months. None of the defendants were noted in default for the delay in serving their pleadings.
[20] Ultimately I am not satisfied that there is sufficient prejudice in the legal sense, as defined by the cases dealing with restoring cases such as this, has been demonstrated.
[21] My reading of those cases suggests that it is still a contextual approach which needs to be taken and that a delay of the nature encountered here is not fatal to an application such as this.
[22] In reaching that conclusion I begin by observing that the evidence before me was to the effect that the plaintiff is an individual who is in receipt of Ontario Disability Support Benefits, who was financially unable to retain counsel to handle all matters in this litigation
[23] He advised the court on the hearing of this motion that he had been recently involved as a self-represented litigant in litigation regarding his firearms permit which lasted the number of days and resulted in his obtaining a judgment in his favour.
[24] One of the doctor defendants in this action was a witness at that trial which occurred earlier this year. Clearly elements of the overall disputes the matter has been active and before the courts during the two years since the first defence was filed.
[25] The cost of litigation of a case of this kind can be daunting for an individual in the plaintiff’s situation. He has adopted what is becoming a more common approach of bringing in a professional “pinch hitter” to assist at some crucial points in the case. I speculate that that situation may possibly explain the missed mail in this case.
[26] In my view a self-represented litigant who is endeavouring to use the court process to obtain relief should be treated no differently by those opposite, than a professionally represented litigant.
[27] At the operative time, the Law Society’s Rules of Conduct provided in Rule 6.03, under the heading Relationship to the Society and Other Lawyers, as follows:
“(2) A lawyer shall agree to reasonable requests concerning trial dates, adjournments, the waiver of procedural formalities, and similar matters that do not prejudice the rights of the client.
(3) A lawyer shall avoid sharp practice and shall not take advantage of or act without fair warning upon slips, irregularities, or mistakes on the part of other legal practitioners not going to the merits or involving the sacrifice of a client's rights. [my emphasis]
[28] In this regard, my review of the documents filed by the defendants in their extensive briefs, caused me some concern.
[29] The Case History indicates that a Notice of Intention to Act in Person was filed on June 15, 2012, by the plaintiff.
[30] No other filings took place over the next 9 months took place until a notation was made reading:
15-MAR-2013 Document
Status Notice: Action Not on a Trial List -Form 48C .1
Filed By:
*The Court
[31] The affidavit filed on behalf of the first two doctors named in the style of cause, by their counsel, McCarthy Tetrault indicates that a Status Notice, which was marked as exhibit “H” to the affidavit in opposition filed on behalf of those doctors “was delivered by regular mail to counsel” on March 27, 2013.Thus there was clearly receipt of the status notice by counsel in March.
[32] The affidavit filed in opposition by that firm, containing 66 paragraphs was sworn by a summer student with the firm annexing, exhibits, tabbed from “A” to “UU”.
[33] I note that the action was administratively dismissed on July 3, 2013 relying upon the status notices sent. In the regard the summer student deposes as well:
“59. On July 4, 2014, I attended the Registrar's office …in order to examine the documents contained in [the]court file … which pertains to the within action. The file contained a total of eight status notices. Two of these status notices were court copies. The other six status notices were all mailed to Toronto Western Hospital and marked "return to sender". The recipients of these six status notices were Toronto Western Hospital, Jane Doe (x2), Dr. Koziel, Dr. Lewis, and Ms. Raees. …
[The] Court file …did not contain any status notices addressed to the Plaintiff, Jeffrey Douglas, that had been marked "return to sender". I verified that the file contains the known address of Jeffrey Douglas...
On July 4, 2014 I spoke to a manager at the Registrar's office …. After conducting a search of the Registrar's computer system, the manager informed me that status notices in this matter had been automatically sent to all parties. Further, the manager informed me that there was no reason to believe a status notice had not been sent to the Plaintiff, Jeffrey Douglas.
Following the dismissal of the within action for delay, the Plaintiff continued to litigate another matter. In 2009, the police seized several firearms and a large quantity of ammunition from the Plaintiff. Sometime thereafter, the Crown brought an application under s. 117.05 of the Criminal Code for an order forfeiting the seized goods to the Crown and prohibiting the Plaintiff from possessing weapons for a period of five years. The Plaintiff opposed this application, seeking a return of his firearms and ammunition.
The Crown subpoenaed Dr. Lewis to testify at the hearing of its application. Dr. Lewis was initially scheduled to testify on December 20, 2013. [sic 2012?]. The Plaintiff sought and obtained an adjournment of that hearing. Dr. Lewis ultimately testified on May 31, 2013 and August 19, 2013. The hearing continued on August 20, 2013 and September 17, 2013. Mr. Douglas was self-represented throughout the hearing.” [my emphasis]
[34] As noted earlier Rule 48 required that the registrar shall serve on the parties a status notice in Form 48C.1 that the action will be dismissed for delay unless, within 90 days after service of the notice. Clearly a number of the parties were not served as the letters were returned. The rule requires “service” but nowhere is the permissible manner of service by the court established nor is any record kept of the actual mailing of any specific notice to any specific address.
[35] I am concerned that service seems to be argued as proven by relying upon a negative, in that service by the court is established where there is “no reason to believe a status notice had not been sent”.
[36] Here there is uncontradicted evidence that the notice was not received. This alone would seem to justify setting aside the dismissal. However, if I am in error that regard I am still satisfied that the facts in this case justify setting aside the dismissal.
[37] During 2012 there appeared of been a number of aborted attempts to get the discoveries held which were adjourned (often at the plaintiff’s request) due to a variety of circumstances.
[38] Moving forward to January of 2013 the lead defendants produced an email from Mr. Douglas to their counsel Mr. Rosenberg. That email, in its entirety (with my underlining added) reads :
“Subject: Status hearing.
Date Tuesday, 8 Jan 2013 19:49:48-0500
My legal representative for the November 10 2013 deposition has let me know that he has another court that day. I am asking you for a status hearing form to be filled out, and request a status hearing for the case.
I wish to do a revised schedule for,
- Examinations for discovery.
-Undertakings to be answered.
-All discovery – related motions to be booked by
-Mediation
-Listing for trial.
Sorry for the short notice but I should have legal concil [sic], there is still an issue of costs for my deposition.
Thank you, JEFF DOUGLAS”
[39] At 8:03 pm that evening, less than 15 minutes after it was originally sent by the plaintiff, counsel at McCarthy’s forwards the status hearing email, without comment, to his counterpart at Bell Temple. That document appears at page 134 of their record.
[40] I find it of interest that neither firm chose to include in their responding materials any specific responses to this request in their materials. If there were any such responses.
[41] Apparently the plaintiff was at least aware of the need to prepare for a status hearing (if necessary) but says he never got the notice contemplated by the Rule.
[42] On Saturday, February 9 at 6:40 PM Mr. Rosenberg wrote to Mr. Douglas, providing copies of a letter relating to potential discovery dates in March and April 2013.
[43] Ultimately the April date was missed and rescheduled. The related email reads in part:
Dear Mr. Douglas:
In our telephone conversation of April 26, 2013, you advised that you had forgotten about the examination on discovery scheduled for that day. You further advised that you were suffering from a bad head cold, and that you would provide us with a doctor's note. Because you failed to give any notice, counsel for all of the defendants attended at Victory Verbatim on April 26, 2013, prepared to continue your examination on discovery. As discussed, we obtained a certificate of non-attendance for your failure to attend at your scheduled examination on discovery. A copy of this certificate is attached.
We have arranged with counsel to continue your examination on discovery at 10:00 am on May 17, 2013. To that end, we attach a notice of examination, which is served on you in accordance with the Rules of Civil Procedure. ….
[44] That examination proceeded as scheduled. Significantly the March Status Notice is not raised in any of the correspondence with Mr Douglas in this time period.
[45] Later, on June 20, 2013 counsel writes following the examination of Mr Douglas in response to an apparent request for assistance in moving the matter forward [my emphasis added]:
“Mr. Douglas,
Further to your request, we have now provided you with a hardcopy of the exhibits to your examination on discovery. You have also requested a statement of the questions that you took under advisement. We take the view that it was your responsibility to make note of these questions. It was not our responsibility to do so. At present, no transcript of you examination has been produced, and we are not in possession of any comprehensive record of the questions you took under advisement.
Nevertheless, we have conferred with counsel for the other defendants to obtain a list of questions taken under advisement and refused, which we have set out below. We do not warrant the accuracy or completeness of this list, as it was prepared from notes taken in the course of your examination rather than stenographic transcripts. Despite anything set out below, we reserve our right to act on the transcript with respect to any question taken under advisement or refused.
We look forward to receiving your response to the questions taken under advisement and your confirmation of your refusals.
Sincerely, Michael.”
[46] The action was administratively dismissed two weeks later. Still, no hint of an intent to hold the plaintiff to that time limit was given by any of the counsel opposite.
[47] During the month of May 2013 the “weapons” hearing was going on which might reasonably be thought to be the focus of the plaintiff’s attention at that time. Counsel for a defendant was with the plaintiff in court on May 31st and no “heads –up” was given. The ongoing trial to my mind explains his inadvertence in this case.
[48] Moreover we continue to have no evidence of any response to the plaintiff’s request for an updated timetable. Counsel may well have been focusing on other matters but there is an appearance, given their response to the Plaintiff’s motion to reinstate of a posture of allowing the plaintiff to make a substantial slip “without fair warning”.
[49] Certainly the defendants could not be said to have been lulled into complacency by a lack of activity on the part of the plaintiff.
[50] In somewhat different circumstances in Brand Name Marketing Inc. v. Rogers Communications Inc., 2010 ONSC 2892, I considered the relevance of the extent of knowledge of the potential claim prior to the end of the two year period. There I made these observations:
“83. Litigation ought not to be practiced on a "gotcha" basis. …. I do not believe that it will enhance the public's appreciation of our judicial system in circumstances such as this case if the court bars a plaintiff from proceeding…
- I believe that equity dictates that if a defendant knows that the "finger of litigation" is pointing in its direction, and an action is commenced on a timely basis based on specific actions, this court ought to take appropriate steps to ensure that the true lis between the parties is addressed, rather than permitting one party to perhaps escape its possible liability by relying upon a technical Limitations Act defence.”
[51] In my view the recent rule amendments, enacted while this matter was under reserve, add support to my view that only in the clearest of cases should a plaintiff be deprived of an opportunity to have his case determined on the merits. My view is based on a number of decisions in what has been somewhat of a shifting area of civil procedure in recent years. I turn to a review of those decisions.
V. Case Law
[52] My colleague Master Muir presents a very helpful and though history of this area in Bagus v. Telesford, [2014] O.J. No. 2733; 2014 ONSC 3512; 241 A.C.W.S. (3d) 452; 37 C.C.L.I. (5th) 38; 2014 CarswellOnt 7704. I adopt his analysis in the following extracts which refers to a number of cases cited by counsel before me on this matter.
[53] His analysis in that case, first refers to his earlier decision with respect to the law relating to motions seeking an order setting aside an administrative dismissal order in 744142 Ontario Ltd. v. Ticknor Estate, 2012 ONSC 1640. In his reasons he takes into account these seven decisions of the Court of Appeal for Ontario released over the previous 5 years:
Scaini v. Prochnicki, 2007 ONCA 63, [2007] O.J. No. 299 (C.A.); Marché D'Alimentation Denis Thériault Lteé v. Giant Tiger Stores Ltd., 2007 ONCA 695, [2007] O.J. No. 3872 (C.A.); Finlay v. Van Paassen, 2010 ONCA 204, [2010] O.J. No. 1097 (C.A.); Wellwood v. Ontario (Provincial Police), 2010 ONCA 386, [2010] O.J. No. 2225 (C.A.); Hamilton (City) v. Svedas Koyanagi Architects Inc., 2010 ONCA 887, [2010] O.J. No. 5572 (C.A.); Machacek v. Ontario Cycling Assn., 2011 ONCA 410, [2011] O.J. No. 2379 (C.A.); Aguas v. Rivard Estate, 2011 ONCA 494, [2011] O.J. No. 3108 (C.A.).
[54] At paragraph 32 of his reasons in Ticknor Estate he summarizes the principles that emerge from those decisions as follows:
the court must consider and weigh all relevant factors, including the four Reid, [2001] O.J. No. 2365 factors which are likely to be of central importance in most cases;
the Reid factors, as cited by the Court of Appeal in Giant Tiger, are as follows:
(1) 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. She 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.... 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.
(2) Inadvertence in Missing the Deadline: The plaintiff or her 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.
(3) The Motion is Brought Promptly: The plaintiff must demonstrate that she moved forthwith to set aside the dismissal order as soon as the order came to her attention.
(4) No Prejudice to the Defendant: The plaintiff must convince the court that the defendants have 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 need not satisfy all four of the Reid factors but rather a contextual approach is required;
the key point is that the court is to consider and weigh all relevant factors to determine the order that is just in the circumstances of each particular case;
all factors are important but prejudice is the key consideration;
prejudice to a defendant may be presumed, particularly if a lengthy period of time has passed since the order was made or a limitation period has expired, in which case the plaintiff must lead evidence to rebut the presumption;
once a plaintiff has rebutted the presumption of prejudice, the onus shifts to the defendant to establish actual prejudice;
prejudice to a defendant is not prejudice inherent in facing an action in the first place but prejudice in reviving the action after it has been dismissed as a result of the plaintiff's delay or as a result of steps taken following the dismissal of the action;
the party who commences the litigation bears the primary responsibility under the Rules for the progress of the action;
[55] Master Muir’s analysis in Bagus (supra) points out that he is also mindful of the observations of the Court of Appeal in its decision in Hamilton (City) (supra). There at paragraphs 20-22 of that decision Justice Laskin notes as follows:
20 Two principles of our civil justice system and our Rules of Civil Procedure come into play. The first, reflected in rule 1.04(1), is that civil actions should be decided on their merits. As the motion judge said at para. 31 of his reasons: "the court's bias is in favour of deciding matters on their merits rather than terminating rights on procedural grounds."
21 The second principle, reflected in the various time limits mandated by our rules, and indeed, as noted by the motion judge, in the provision for a status notice and hearing, is that civil actions should be resolved within a reasonable timeframe. In Marché, at para. 25, my colleague Sharpe J.A. wrote about the strong public interest in promoting the timely resolution of disputes. Both the litigants and the public have an interest in timely justice. Their confidence in the administration of our civil justice system depends on it.
22 On motions to set aside an order dismissing an action for delay, invariably there is tension between these two principles.
[56] The reasons in Bagus continue:
25 I also note that the Court of Appeal has recently emphasized the principle that these motions involve an exercise of the court's discretion. The court must weigh all relevant considerations to determine the result that is just in the circumstances. See Habib v. Mucaj, 2012 ONCA 880 at paragraph 6.
26 Finally, it should be emphasized that the general preference in our system of civil justice is for disputes to be decided on their merits. See MDM Plastics Ltd. v. Vincor International Inc., 2013 ONSC 710 (S.C.J.) at paragraphs 24 and 28.
27 State Farm argued that recent decisions of this court and the Court of Appeal suggest that there is a trend toward a stricter approach on motions to set aside dismissal orders. I agree that the tests set out by the Court of Appeal in connection with status hearings and motions to restore actions to the trial list appear to be more rigid than the applicable test on this motion. The test on a contested status hearing, for example, is conjunctive. It requires a plaintiff to explain her delay and demonstrate that the defendant will not be prejudiced. See Faris v. Eftimovski, 2013 ONCA 360 at paragraph 42. However, none of the half dozen or more Court of Appeal decisions dealing with administrative dismissal orders take that approach. They all require a contextual analysis where it is not necessary for a plaintiff to satisfy all factors. The court is to weigh all of the factors and make the order that is just in the circumstances. In my view, this remains the applicable test. [my emphasis]
VI. Applying the Tests
[57] These are the factors and principles I have considered and applied in determining the issues on the plaintiff's motion to set aside the dismissal order. My analysis leads me to the conclusion that it is in the interest of justice that the dismissal order of the registrar be set aside.
Motion Brought Promptly
[58] Rule 37.14(1) requires that motions of this nature be brought by way of a notice of motion served forthwith after the order in question comes to the attention of the person affected. The applicable authorities also require these motions to be brought promptly. In my view, the plaintiff has not done so. The explanation provided however is sufficient given the other ongoing other litigation and the earler requests for a timetable. Nine months in the circumstances while longer than desirable, is in my view not a violation of this factor.
[59] In my view, the plaintiff has satisfied this element of the Reid test.
Litigation Delay
[60] This action was commenced in 2010. The lead defendants delivered their pleading in February 2012. There are a number of defendants yet discoveries were virtually complete and the plaintiff was being in active contact regarding matters related to his May 2013 examination within two weeks of the action being dismissed.
[61] This is not the action where nothing happened for two years after the first defence. Significant progress has been made. Discoveries of all parties in a multi-party case were all held within 2 years of the first defence.
[62] For these reasons, I am satisfied that the plaintiff has met this element of the Reid test.
Inadvertence
[63] I am satisfied that the plaintiff has met this aspect of the Reid test. The plaintiff says he did not receive the notice. There is no proof he did. His father’s evidence is explicit, he did not. Without it being “served” there was no requirement he do anything that he failed to do, due to inadvertence. In any event to a degree his status notice email of January 2013 “put the ball in the defendants’ court”.
Prejudice
[64] I am also satisfied that the plaintiff has met the onus placed upon her to rebut the presumption of prejudice. Where a limitation period has passed, as it has here, a presumption of prejudice arises and the onus rests with the plaintiff to rebut that presumption. The strength of this presumptive prejudice increases with the passage of time. See Wellwood at paragraph 60.
[65] A plaintiff can overcome the presumption of prejudice by leading evidence that all relevant documents have been preserved, that key witnesses are available or that certain aspects of the claim are not in issue. See Wellwood at paragraph 62.
[66] The plaintiff failed to specifically lead evidence in this regard but his oral submissions were in part directed to asserting there was no actual circumstances of this case which would justify my refusing this motion.. Moreover in this case the motion record materials filed by the defendants with respect to the motion were 2 inches thick. My review of those materials allowed me to reach the conclusion that there was no real prejudice established by them.
[67] However I do observe that the facta filed on behalf of the physician defendants did assert specific alleged areas of prejudice. The factum of the lead defendants asserts in part:
- The Plaintiff has led no evidence to refute the presumption of prejudice that arises on the facts of this matter. The Plaintiff's evidence of the relevant events differs significantly from that of the defendants. Many of the critical differences concern matters that were not fully recorded in the relevant clinical records, such as the Plaintiff's whereabouts within the hospital at various times during the morning of September 11, 2008. Other differences require a recollection of details that may have seemed too picayune to be charted, such as the Plaintiff's encounters with various staff members as he unexpectedly left the hospital. The Plaintiff has led no evidence to suggest that this record has been adequately preserved. In turn, there is a substantial likelihood that the Plaintiff's delay will deprive [these defendants] of a fair trial.
[68] I would find these concerns more persuasive if there was evidence before me that sure information had not adequately been preserved. The plaintiff is clearly not in a position to testify as to what records are lost and at best could swear that “there was no reason to believe” that the appropriate records had not been preserved. Moreover as described below at least some of these parties feel the existing record is adequate to permit a summary judgment motion to dismiss the plaintiff’s action.
[69] A more unique concern is raised with respect to the position of one of the defendant physicians. It is alleged that that defendant “has suffered actual prejudice from the Plaintiff's inattention to this matter. The Plaintiff's notice of action alleges “willful misdiagnosis”[sic] on that physician’s part, and the amended statement of claim alleges “blatantly incorrect” medical care." At the time of the relevant events, the individual was a medical resident. Because of the existence of this action she was required to explain the circumstances of the Plaintiff's action on several occasions. For example, the College of Physicians and Surgeons of Ontario requested additional information about this action when during the application process for a restricted license. It is asserted that this process delayed the issuance of the restricted license and deprived the defendant of work opportunities during the period of delay.
[70] The Plaintiff brought the present motion shortly before the time for the application for a practice license and hospital privileges. As it was necessary to complete additional paperwork and meet with counsel for a prospective employer to discuss the Plaintiff s action.
[71] I find these consequences both regrettable and unfortunate. However, I am not satisfied that these instances are the type of prejudice contemplated by the previous cases.
[72] Every defendant has to deal with accusations which they regard to be, and may ultimately be held to be, “baseless” and vexatious. That is a consequence of our adversarial system. Allowing the action to proceed while prolonging the unfortunate sequelae is in my mind in this case a necessary potential evil that does not justify refusing the relief to the plaintiff if otherwise justified.
VII. A Pointless Exercise?
[73] The factum filed by counsel for Dr. Murray asserts it would not be fair to reinstate this action as it has no real chance of success.
[74] The factum filed on his behalf asserts:
“52. The ultimate consideration on a motion of this kind is whether it would be fair to let the dismissal order stand. Here, it would be fair because the plaintiff himself has occasioned exceptional delay in moving his action forward, he has provided no reasonable explanation as to why he took so long to bring this motion to set the dismissal aside, and, in any event, even if the matter is permitted to continue it is doomed to fail.
- Should this Action be revived, the defendants will move for Summary Judgment on the basis that the plaintiff has failed to put forward any expert evidence supportive of his claims in professional negligence. To date, no expert evidence has ever been received from the plaintiff, nor has the plaintiff provided any indication that he has made efforts to secure same. A failure to secure such evidence is fatal in claims of medical and professional negligence where the applicable standard of care is not within the ordinary knowledge of the trier of fact, such as with respect to psychological and psychiatric medical assessments.
See e.g. Kurdina v. Dief, 2010 ONCA 288, aff'g 2009 60403 (ONSC), leave to appeal to the Supreme Court of Canada dismissed, 2010 52721 (SCC); and Suserski v. Nurse, 2008 ONCA 416, aff'g 2006 40677, leave to appeal to the SCC denied 2008 55976.”
[75] I have some sympathy for their argument that in view of the above and the direction of the Court of Appeal that this Court should employ a "contextual approach" to these matters an order denying the plaintiff’s motion would be “the just outcome in the circumstances.” However I do not interpret the requirement for a contextual approach to require what in essence would amount to the hearing of the motion for summary judgment at this stage. Regardless of the strength of the legal argument raised, since it was not advanced while the action was “alive” I am not prepared to accept it as a basis for refusing the order to which I have determined the plaintiff is otherwise entitled.
VIII. Context
[76] When deciding a motion to set aside an administrative dismissal order, 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 a plaintiff to have her claim decided on the merits. However, the preference in our system of civil justice is for the determination of disputes on their merits.
[77] It is true that the plaintiff may have failed to satisfy one or more of the four Reid factors. However, he has been actively pursuing his claim and was engaged in a lengthy trial as a self-represented litigant in a related matter. It is clear from the evidence that he always intended to pursue his claim. I do not view any delay in proceeding with the present claim as a deliberate choice to abandon his claim for compensation. Most importantly, however, he has satisfied the key consideration of prejudice.
[78] For these reasons, I have concluded that it is just in the circumstances of this action that the dismissal order of the registrar dated July 3, 2013, should be set aside.
IX. Recent Jurisprudence
[79] While this matter was under an inordinately long reserve, for which I express my regret to all parties, Associate Chief Justice Morocco sitting on the Divisional Court delivered reasons that provide me with what I regard as support for the conclusions I reached on the basis of the arguments I heard from the parties. In Dang v. Nguyen2014 ONSC 7150, [2014] O.J. No. 5880; 2014 ONSC 7150 F.N. Marrocco A.C.J.S.C.J observed on an appeal dealing with the appropriate approach to cases such as this, in part:
4 Unbeknownst to the plaintiff, her claim was dismissed by the Registrar on July 10, 2012. The Registrar's order dismissed the plaintiff's claim as abandoned pursuant to Rule 48.15(1). Although not necessary for my decision, it is part of the context in which this matter arises that Rule 48.15 (1) has been repealed effective January 1, 2015.
[80] While he was addressing the abandonment Rule 48.15, I similarly note that the now amended Rule 48.14 now allows a five year period which expires, had the action not been already dismissed on the later of the fifth anniversary of the commencement of the action, which in this case would calculated and January 1, 2017.
[81] In particular the court addresses issues regarding the necessary degree of proof: •13
- The Master indicated that an affidavit of the plaintiff was required to explain the delay. The plaintiff did not file an affidavit. Counsel for the plaintiff filed an affidavit and indicated that the Dismissal Order occurred "unbeknownst to the plaintiff." The Master ruled that this statement had "no evidentiary value."
14 Rule 39.01(4) provides that an affidavit for use on a motion may contain statements of the deponent's information and belief. While it is true that Mr. Grillone failed to state the source of his belief, it is obvious that the information had to come from his client. Accordingly, Mr. Grillone's statement that the Dismissal Order was "unbeknownst to the plaintiff" was capable of proving that fact. It was open to the Master to attach little or no weight to Mr. Grillone's assertion. It was also open to the Master to accept Mr. Grillone's assertion as proof of the fact that his client did not know about the Dismissal Order. It was a palpable and overriding error to conclude without reasons that Mr. Grillone's uncontradicted and unchallenged affidavit evidence had "no evidentiary value."
15 In deciding whether to set aside the order of the Registrar, the Master was required to consider whether the Registrar could properly conclude that the conditions in Subrule 48.15(1) had been satisfied. One of the conditions in the Subrule is that the Registrar give the applicant 45 days notice in the appropriate form (Form 48E) of the Registrar's intention to dismiss the action as abandoned. There was no evidence before the Master which was capable of proving that the Registrar could properly be satisfied that this condition had been met. In addition, if there ever was a Form 48E, it is not part of this record. It was a palpable and overriding error to find that the Registrar properly concluded this condition was satisfied in the absence of such evidence.
16 In Habib v. Mucaj, 2012 ONCA 880, at para. 5, the Court of Appeal remarked that the prejudice that would be suffered by the defendant on a motion to set aside a dismissal for delay under r. 48.15(1) must be significant and arise out of the delay. The Master found that the prejudice in this case arises from the fact that the limitation period has expired. The limitation period expired on November 22, 2011 which was eight days after the plaintiff issued her claim. The plaintiff's delay began on December 15, 2011 immediately after the defendant was served with the statement of claim and continued until the Grillone firm was retained on October 7, 2013. It cannot be said that the expiration of the limitation period arose during this delay.
19 However, the Master also stated that the plaintiff had not advised whether she sought medical treatment, whether she searched for and obtained medical evidence, what witnesses concerning liability and damages were still available and whether their memories were intact. It is true that the plaintiff did not give this evidence. However, Mr. Grillone did provide an affidavit in support of the motion before the Master. In his affidavit Mr. Grillone stated that both the witnesses to the accident and up-to-date medical records were available. Mr. Grillone was capable of knowing those facts. Mr. Grillone was not cross-examined.
21 The weight to be attached to Mr. Grillone's evidence was for the Master. …”
X. Disposition
[82] I therefore order as follows:
(a) the dismissal order of the registrar dated July 3 1013 is hereby set aside;
(b) if a Summary Judgment motion is to be brought the parties shall within 60 days establish a date for such motion;
(c) the Plaintiff shall set this matter down for trial no later than the later of sixty days after the resolution of and summary judgment motion is final and if no such motion is brought and September 30, 2015.
[83] The Plaintiff is self-represented and in any event is receiving an indulgence in having his action restored. Having considered all the circumstances of this case there will be no order as to costs.
Released: February 20, 2015
Master D. E. Short
DS/ R.73