Leblanc v. Glass, 2015 ONSC 1477
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MARIE LEBLANC and JONATHON A. GLASS
Plaintiff s
(Responding Parties)
– and –
CLAUDE N. R. MacMILLAN and JOHN GLASS
Defendants
(Moving Party)
Tudor Carsten, for the Plaintiff, Marie Leblanc.
Rose Muscolino, for the Defendant, Claude N. R. MacMillan.
David Yam as Estate Trustee for the late John Glass, not appearing.
HEARD: February 6, 2015
R. D. GORDON, R.S.J.
Overview
1The Defendant Claude N. R. MacMillan brings this motion to have the Plaintiff’s action dismissed for delay, pursuant to Rule 24.01 of the Rules of Civil Procedure and the Court’s inherent jurisdiction.
Background
2Ms. Leblanc and Mr. Glass met in 1976 and began a relationship shortly thereafter. Eventually they began living together and on March 1, 1982, had a child Jonathon. They were legally married on March 11, 1990 but separated only a few months later. Ms. Leblanc began a Divorce action against Mr. Glass on February 9, 2001.
3On or about August 21, 2001, Ms. Leblanc, along with her son Jonathon, issued the Notice of Action initiating the proceeding before me. The Statement of Claim was issued on September 19, 2001. Today, some thirteen and a half years later, the matter has yet to be tried.
4The Plaintiff’s action seeks damages against Mr. MacMillan and her former husband, the late John Glass, alleging, among other things, the following:
Mr. MacMillan was negligent in advising her to pay Mr. Glass $500,000 pursuant to the terms of a separation agreement;
Mr. MacMillan and Mr. Glass misappropriated her business when she became ill in 1992;
Mr. Glass, with the assistance of Mr. MacMillan, wrongfully encumbered property (“the Beatty Street Property”) that was to have been held by Mr. Glass in trust for his son Jonathon;
Mr. MacMillan failed to account for funds deposited with him in trust;
Funds were deposited with Mr. MacMillan in trust for Jonathon and Mr. MacMillan and Mr. Glass conspired with each other to use those funds as their own.
5On May 25, 2006, the Plaintiffs passed a trial record. Although the action had taken almost five years to get to that point, it had not been languishing. Pleadings had been amended, affidavits of documents delivered and examinations conducted.
6On September 24, 2007 a pre-trial conference was conducted before Justice R. Riopelle. He concluded that the matter was not ready for trial as the Plaintiff had not complied with undertakings and Mr. Glass was considering amending his Defence. In the end, Justice Riopelle placed the action on the December 2007 assignment court list, recommending that a further and combined settlement/pre-trial conference be held in early 2008. The matter was not subsequently settled and a trial date of November 28, 2008 was set.
7On October 31, 2008 the Plaintiff brought a motion to further amend her Statement of Claim and to adjourn the trial. Mr. Glass replied with a motion for compliance with undertakings. On November 14, 2008 Justice P.C. Hennessy adjourned the Plaintiff’s motion to amend to February 20, 2009 and directed her to include in her claim for relief a request for a timetable to have the matter proceed to trial. She ordered that examinations be completed within one month’s time and that undertakings be fulfilled by the end of January 2009.
8Prior to February 20, 2009, counsel for the parties agreed that the Trial Coordinator would be contacted to fix a date for the motion rather than have it proceed as scheduled. Thereafter, and until this motion was brought, no attempts were made by the Plaintiff or her counsel to schedule the motion.
9In October of 2009, Mr. Glass passed away. Until recently, no steps were taken by the Plaintiff to obtain an order to continue.
10On April 28, 2010, Mr. MacMillan’s counsel wrote to counsel for the Plaintiff asking whether she intended to proceed with the action. There was no response. A follow up letter was sent on June 24, 2010 and again there was no response. A further follow up letter was sent on August 3, 2010. Yet again, there was no response.
11Aside from the Plaintiff’s unsuccessful attempt to set the matter down for trial in April of 2013, there was no further activity in the action until February 19, 2014 when the Plaintiff served a notice indicating that she would be representing herself. About two months later she appointed her current counsel, who wrote to advise that he was being retained and would be in touch to discuss how best to move the action forward.
12When counsel for Mr. MacMillan had heard nothing more by August 20, 2014, she determined that this motion would be brought. Since that time, counsel for Ms. Leblanc has done what he can to advance the matter. He has obtained an order to continue. He has initiated the required motion to amend the Statement of Claim and request additional relief as directed by Justice Hennessy in 2008. He has indicated an intention to request the consolidation of this action with other proceedings he says are related. There seems to be a good faith intention to proceed with this action and get it to trial as soon as possible.
Applicable Law
13Rule 24.01 of the Rules of Civil Procedure provides that a Defendant who is not in default may move to have an action dismissed for delay where the Plaintiff has failed to set the action down for trial within six months after the close of pleadings. As determined by the Ontario Court of Appeal in Langenecker v. Sauve, 2011 ONCA 803, a defendant moving under this rule must establish one of two things: (1) that the delay has been intentional and contumelious, or (2) that the Plaintiff or her counsel have been responsible for an inordinate and inexcusable delay that has given rise to the substantial risk that a fair trial of the issues will not be possible at the earliest date at which the action would come to trial if allowed to continue.
14In addition to Rule 24.01 the Court may dismiss an action as an exercise of its inherent jurisdiction to control its own process if there is a lengthy and unexplained delay that undermines public confidence in the administration of our civil justice system [see Wallace v. Crate’s Marine Sales Ltd., 2014 ONCA 671].
Analysis
Has there been Intentional and Contumelious Delay?
15A delay which is intentional and contumelious is one which is marked by deliberate conduct of the Plaintiff or her counsel that demonstrates a disdain or disrespect for the Court’s process. To dismiss an action on this basis requires the court to find that its continuation in the face of the impugned conduct would constitute an abuse of the Court’s process [see Langenecker v. Sauve, supra].
16Counsel for the Defendant did not strenuously argue this point, and for good reason. Although the Plaintiff has not complied with the order of Justice Hennessy, her failure to do so does not amount to disdain or disrespect for the court’s process.
Has there been Inordinate Delay?
17In determining whether there has been inordinate delay in having a matter get to trial, the length of time from the commencement of the proceeding to the motion to dismiss is considered [see Langenecker v. Sauve, supra]. In this case the delay amounts to about thirteen years and there can be no question that the delay is inordinate.
Has the Delay been Inexcusable?
18Determining whether a delay is inexcusable requires an assessment of the reasons for the delay and whether those reasons provide an adequate explanation for the entire delay. Explanations that are reasonable and cogent or sensible and persuasive may serve to excuse delay. In assessing the explanations offered, the Court is to consider the credibility of those explanations, the explanation offered for individual parts of the delay, and the effect of those explanations as a whole.
19Between the commencement of trial in 2001 and the trial adjournment in late 2008, the matter made its way, albeit slowly, through the general litigation process. Pleadings were amended, documentary production was made, expert reports were prepared, examinations for discovery were completed, and the matter was set down for trial. Although one might suggest that seven years is a long time for a matter to reach the stage it had, there has been no suggestion that this delay was the responsibility of the Plaintiff alone.
20However, from December 2008 until this motion was brought, the delay has been largely the responsibility of the Plaintiff. Her counsel offers up two excuses.
21The first is that Ms. Leblanc was involved in bankruptcy proceedings from 2010 to 2012. In particular, Ms. Leblanc has deposed that on December 17, 2010 she completed a proposal under the Bankruptcy and Insolvency Act and on August 15, 2011 declared bankruptcy. It was not until April 24, 2012 that the Trustee in Bankruptcy released to her any interest in this action. I find her having entered into a proposal of no consequence because, unlike a bankruptcy, there is no automatic vesting of property in the trustee in a proposal. The result is that this action remained the Plaintiff’s to pursue until her bankruptcy in August of 2011. I accept that her inability to proceed due to bankruptcy between then and April of 2012, a period of some eight months, is a reasonable excuse relative to that period of time.
22The second excuse is that Ms. Leblanc has been prosecuting/defending related actions which she will seek to have consolidated with this action. Her position is that her decision to focus on parallel litigation is a reasonable excuse for the delay in this action because that parallel litigation has a serious impact on or could prejudice her ability to pursue the claims made in this action. As I understand it, the Plaintiff alleges that there are three related proceedings. The first is her Divorce Action, however, her affidavit discloses no action on her behalf in that action since the trial record was filed in September of 2008. In the circumstances it can hardly be said that she has been actively prosecuting or defending the Divorce as a related action. The second proceeding is what has been referred to as the “Knowing Receipt Action”. I note that this action was not started until May of 2014 and accordingly, she was not pursuing it as a related action until at least then. The third is what is referred to as the Beatty Street Action, and which involves allegations that a mortgage is invalid as being in breach of the trust agreement in favour of Jonathon Glass (of note, Jonathon Glass, the beneficiary of the trust, has not joined in the allegation of breach of trust). Although I accept that the Beatty Street Action and the proceeding before me may have some common issues, and that the Plaintiff has been pursuing the Beatty Street Action since it was issued in November of 2009, I note that the matter was set down for trial in May of 2011. By that time, pleadings were complete, productions had been exchanged and discoveries completed. There was little left to do to have it catch up to the current proceedings and no good reason why the steps taken in that proceeding precluded the Plaintiff from proceeding in this action, and why no steps were taken to consolidate the actions in the intervening time. In my view, that there were other actions in which the Plaintiff has been involved and which may peripherally impact this proceeding is not a sufficient excuse given that few steps were being taken in those actions over the same period of delay.
23Aside from the eight month period during which Ms. Leblanc could not proceed due to her bankruptcy, there has been no good excuse offered for the delay that took place. On consideration of all of the circumstances, the delay in inexcusable.
Is there a Substantial Risk that a fair Trial of the Issues will not be possible?
24This issue requires consideration of the inherent and actual prejudice arising out of the delay as it relates to the Defendant’s ability to put its case forward for adjudication on the merits. Inherently, a long delay will cause prejudice. Memories fade and fail, witnesses become unavailable, and documents are lost, creating a presumption of inherent prejudice, and the longer the delay, the stronger the presumption. [See Langenecker v. Sauve, supra]. The Plaintiff may discharge this presumption by persuading the Court that no prejudice would be suffered as a result of the delay, and that there is not a substantial risk that a fair trial will not be possible [see Armstrong v. McCall, 2006, 17248 (ONCA). If the Plaintiff is able to discharge the presumption of inherent prejudice, the action may still be dismissed if the Defendant leads convincing evidence of case-specific or actual prejudice.
25Given that over thirteen years have elapsed since this action was started, there is a strong inference of prejudice.
26The Plaintiff, however, takes the position that the presumption is rebutted in this case because relevant documents have been preserved, discoveries have been completed and expert reports have been exchanged. In addition, the Plaintiff points out that she and the Defendant Mr. MacMillan are both available to testify at trial and although Mr. Glass died in 2009, his documents are available as are his evidence from some of the divorce proceedings and his examination for discovery. In addition, Mr. Glass’s former bookkeeper, Mr. Don Land is available to testify and has already been examined out of court.
27In the face of this evidence from the Plaintiff, there has been no suggestion by the Defendant that the examination for discovery of the parties was incomplete or wanting in any way. Neither has the Defendant suggested that there have been documents destroyed or lost. The Defendant has not provided any list of witnesses that might be expected to testify at trial and whose memory would be expected to be compromised by the long delay in this case.
28On a full consideration of the evidence before me, it is my view that the Plaintiff has rebutted the presumption of prejudice. On the record before me I am unable to find that there is a substantial risk that a fair trial of the issues will not be possible.
Should the Action be Dismissed Pursuant to the Court’s Inherent Jurisdiction?
29In Wallace v. Crate’s Marine Sales Ltd., 2014, ONCA 671, the Ontario Court of Appeal adopted the following passage by Gunsolus J.: “A lengthy, unexplained delay in a case of this nature could well be defined as an abuse of the court’s process. There is, indeed, a strong public interest in promoting the timely resolution of disputes in our civil justice system, which is already overburdened. Litigants and the public regularly complain about the inordinate delays in obtaining civil motions and trial dates. The delay in this matter, of over a decade, strains the empathy of the court to excuse a delay of this “magnitude and gravity” and further undermines public confidence in the administration of our civil justice system”.
30I am very troubled by the manner in which this case has been conducted by the Plaintiff. The Plaintiff took no effective steps to advance this action after December of 2008, notwithstanding the order of Justice Hennessy and the timetable set out therein. When the matter had sat dormant for some 16 months, counsel for Mr. MacMillan made specific inquiries of the Plaintiff to determine whether she intended to proceed and yet her letters of April 28, 2010, June 24, 2010 and August 3, 2010 went unanswered. Nothing more happened until April of 2014 when counsel for Mr. MacMillan received notice that the Plaintiff had retained a new lawyer. Yet, more than four months later, when this motion was finally brought, nothing further had been done.
31All this time, Mr. MacMillan has had to continue his professional practice with these very serious allegations of negligence, breach of trust, conversion and conspiracy hanging over him.
32As the Court of Appeal said in Wallace v. Crate’s Marine Sales Ltd., supra: “There comes a time, in short, when enough is enough, and the civil justice system will no longer tolerate inordinate and inexplicable delay.”
33Has that time come in this case? At the end of 2008, this action was already over seven years old and there was an order in place imposing certain timelines and requirements on the Plaintiff to move the matter towards trial. Even allowing for the period of time the Plaintiff was a bankrupt, she did essentially nothing for five years and offered the Defendant not even the courtesy of a reply to counsel’s letters of inquiry.
34Her motion to amend her statement of claim, if granted, is likely to necessitate a new round of discoveries and documentary production. Allowing for the schedules of busy counsel, it is unlikely this matter would be pre-tried and ready for trial until sometime in 2017. Even if the Plaintiff’s motion to amend is dismissed, this matter is unlikely to be reached for trial until at least the middle of 2016, some 15 years after it was started.
35In the words of our Court of Appeal, enough is enough. This action had ample time to become trial ready by the end of 2008. Five years of unexplained delay thereafter, with the matter no farther ahead, and no likelihood of trial until at least 2016 amounts to an abuse of the civil justice system. It cannot be allowed to continue.
36It follows that the Plaintiff’s claims against Mr. MacMillan are dismissed. In the event the parties are unable to agree on costs they may make written submissions to me, in writing, not to exceed four pages each plus attachments, within 45 days.
R. D. GORDON, R.S.J.
Released: March 6, 2015
COURT FILE NO.: C-6236/01
DATE: 20150306
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MARIE LEBLANC and JONATHON A. GLASS
Plaintiff s
(Responding Parties)
– and –
CLAUDE N. R. MacMILLAN and JOHN GLASS
Defendants
(Moving Party)
RULING ON MOTION
R. D. GORDON, R.S.J.
Released: March 6, 2015