REASONS: STATUS HEARING “SHOW CAUSE”

COURT FILE NO.: 11-CV-419304

Heard: December 9, 2014

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Debardine v. Harris, Sheaffer et al.

BEFORE: Master Joan Haberman

COUNSEL: Butcher, A. for the plaintiff

Dawe, S. for Yanover

Daley, H. for Houser

Master Haberman:

[1] On June 17, 2013, the registrar issued a Status notice in this matter. The plaintiff responded to the notice with a request for Status Hearing and one was convened for November 13, 2013.

[2] Although the large majority of these matters are resolved by way of a Consent Timetable, in this case, I was advised that the defendants, Houser and Yanover, would be asking the plaintiff to show cause.

[3] For a variety of reasons, the date scheduled for the opposed hearing was adjourned, and the new date was adjourned as well. The matter was finally heard on December 9, 2014.

THE BACKSTORY

[4] The plaintiff’s evidence was replete with rhetoric and self- advocacy, so a certain amount of “wading” through the status hearing, supplementary and reply status hearing records was required in an effort to extract the essence of her position.

[5] Despite this wading exercise, while I now have the plaintiff’s version of events, her actual position remains fuzzy, as there are discrepancies within her evidence regarding her vision of how this matter ought to be handled.

[6] The plaintiff notes that she is a retired US attorney, licenced to practice in the state of New York since 1986, though she was never a litigator. As her own counsel noted, she is not an unsophisticated litigant. Perhaps this is what led her to conclude that she was well placed to plead her own case.

[7] This, however, is a task best left to counsel. The drafting style employed in putting forward the plaintiff’s evidence suggests that she was the author and that permitted little if any editing of her work. Her affidavits demonstrate a lack of understanding of Ontario civil procedure, as well as a style of advocacy frowned upon in this jurisdiction – the use of adverbs and adjectives impedes a party’s ability to put forth their evidence in a straightforward and candid manner. Further, the plaintiff’s negative view of how of defence counsel conducted themselves is neither appropriate nor helpful.

[8] I point out these problems with the plaintiff’s evidence, as it led to a more cumbersome record than was needed, inconsistency within the plaintiff’s own evidence about how she envisaged the future of this action, and considerable additional hearing time and time needed to draft Reasons thereafter. While none of this impacts on the merits of these Reasons, it will have a bearing on costs.

[9] Further, although it is important to paper a “show cause” record well, 2 fat volumes with 100 tabs of exhibits, followed by supplementary and reply records amounts to overkill in the extreme. The plaintiff’s apparent “amazement” at what she read in the responding materials, and her views regarding opposing counsel in no way advanced her case and only added to what had to be read, carted around and stored. This sort of thing has no place in evidence and served to detract from the more pressing issues this court had to deal with here.

[10] According to the plaintiff’s 41-page affidavit, sworn October 31, 2013, this action is one of 5 court proceedings involving the plaintiff and/or her brother, Nick (not a party to this action); the estates of her late father, Donald Malcolm and her late mother, Judith Malcolm. The defendant, Martin Houser, has been the plaintiff’s lawyer since her parents’ deaths, both in 2007, and Yanover was the family accountant, as well as a trustee of both Judith’s estate and of the joint spousal trust.

[11] None of the other 4 proceedings has been resolved. The only matter that has been settled - a sixth proceeding- involved Donald’s common law spouse, Leonie Cousins, (the “Cousins matter”),who predeceased him in 2006. The plaintiff claims that this matter, court file number 11-CV- 419282, is connected with the current action as it involved inaccurate advice she claims she was given by the professional defendants now being sued. This assertion becomes important later on when we look at the defendants’ evidence.

[12] The action before this court was started by Notice of Action issued on January 31, 2011. The plaintiff claims this action is connected to all of the other litigation, which she then describes and discusses. For the most part, the alleged connection focuses on legal and financial advice the plaintiff claims she was given by these defendants, her former advisors. While those issues are front and centre in this case, they also feature, to some degree, in most of the others.

[13] The other connection that links these cases as identified by the plaintiff is that her damages in this action depend on what happens with some of the related matters – if she is successful in one or more of those, her claims against Houser and Yanover will be reduced or possibly extinguished.

[14] The claim as it was initially advanced was extremely short and very focused. Within a short time, however, new counsel came on board for the plaintiff and amended the claim, which then soared from 4 to 26 pages.

[15] The other four proceedings are as follows:

o In June 2011, the plaintiff issued an application, court file number 11-CV-428723, (the “Woodlawn matter”) against Nick, which she states is connected to Donald’s estate, the joint spousal trust and this action;

o The third proceeding is an application to pass the accounts in Donald’s estate (“accounts – Donald”), under court file number 02-49/12. The plaintiff asserts that she obtained an order from the Milton court on June 22, 2011, requiring Nick to pass the accounts as co-estate trustee for Donald’s estate;

o The fourth matter is an application to pass the accounts in Judith’s estate. On June 23, 2011 (“accounts – Judith”), the plaintiff obtained an order of this court requiring Nick to pass these accounts (court file number. 02-36/12), as well; and

o The fifth matter, court file number 7339/07, began life dealing with the appointment of Donald’s estate trustee, but according to the plaintiff, it became a civil action out of Toronto, in which Nick issued a claim in 2011. The plaintiff delivered a defence and counterclaim in that action (the “JST claim”), in which she now seeks Nick’s removal as trustee of Donald’s estate, as well as an accounting.

[16] In paragraph 4 of her affidavit, the plaintiff states that these other matters are interrelated with this one and that they must be dealt with first. On that basis, she appears to be saying the current action must be held in abeyance until the others are resolved.

[17] Later in the affidavit, however, the plaintiff notes that it would be cost effective to conduct joint examinations between the actions and application, which had to catch up with this one and, in paragraph 31, she claims these matters are complicated and all depend on one another to move forward. This suggests that all of the matters should be moved forward together, with joint discoveries.

[18] As a result, even now, the plaintiff’s position is not clear in her evidence. If her goal is to have all of these matters proceed in tandem, with joint examinations, to save costs, how can that occur if it is her view that the other legal proceedings must be resolved first? These two competing viewpoints are not reconciled in the evidence, nor were they explained at the hearing. This push-pull and lack of clarity has permeated this action.

[19] The plaintiff’s uncertainty about how to go forward, still apparent in her evidence for this hearing, explains, in part, why this action has moved forward in fits and starts, with periods of inactivity and little progress. It may also explain the ongoing shifts in her representation, although the plaintiff has been less than candid about that, which I discuss below.

CHRONOLOGY

Plaintiff’s evidence

[20] One of the issues that appears to have caused interruptions with respect to the progress of this action is the repeated changes with respect to the plaintiff’s representation. Although the plaintiff states she is now working with her fourth lawyer, by my count, Mr. Butcher (the Sweatman firm) is actually her 5th lawyer on this matter, and she has also been self-represented for a short but critical period of time.

[21] Though the plaintiff is circumspect in her evidence as to why she has had so many counsel, her Reply affidavit of November 11, 2013, suggests that this was a matter of her choice, rather than that of her various counsel:

…I am entitled to change lawyers if I deem that necessary especially in a matter wherein they also acknowledge is “complicated.”

[22] However, the court’s computerized case history shows that Karen Bales had herself removed from the record by order of the court. One of the defendants points out that the evidence before the court for that motion referred to an issue regarding payment of Bales’ account. It seems the plaintiff was less than candid about this in her evidence regarding the repeated changes in representation, at least insofar as Bales.

Issuance of the claim by Sterns

[23] Although the plaintiff says nothing about this in her evidence, it was David Sterns who issued the Statement of Claim in this matter on January 31, 2011, which at that time, was a short focused bundle of allegations. Within the month, he was replaced.

The Yach period: March 1, 2011- January 16, 2012

[24] Yach came on board on March 1, 2011, and she amended the claim on May 26, 2011. The Amended (and greatly expanded) Statement of Claim was then served between May 31 and June 2, 2011. Despite her position that these matters are inter-related, neither pleading the original nor the amended pleading in this action is included in the plaintiff’s materials so assist her in making her point.

[25] On June 13, 2011,Yanover sought an extension of the deadline to defend in order to conduct an investigation and, on June 23, 2011, Houser served a Demand for Particulars with respect to the amended claim.

[26] Yanover states that it was always his view that this matter should be stayed pending resolution of the Cousins action and the passing of accounts (in both Donald and Judith’s estates). He sets this out in his defence. This was not addressed until Bales came on record. In May 2012, the plaintiff proposed a standstill agreement in this matter, which I discuss below.

[27] The Response to the Demand for Particulars was served on July 14, 2011 and, thereafter, Yach began asking for statements of defence. Yanover’s defence was served on August 9, 2011 and Houser’s was served on August 11, 2011. Yach then asked their counsel for an indulgence with respect to filing her Reply to August 29, 2011, as she was leaving for vacation. In the end, no Reply was filed by Yach. There is no evidence from her or from anyone else to explain this. It was 5 months from the time of the promised Reply before new counsel came on board.

The Bales period: January 16, 2012 – September, 2012

[28] The plaintiff asserts that it was because of Yach’s lack of responsiveness and her own decision to have one counsel for all of her matters that she decided to change counsel. As it turns out, however, she always had separate counsel dealing with the Cousins matter – she does not address this in her evidence.

[29] On January 16, 2012, Karen Bales filed a notice of change of solicitor. That was a year after this action was started and 5 months after the Reply was due.

[30] The file appears to have sat again for a further 4 months, presumably while new counsel got up to speed, although there is no evidence to that effect.

[31] Instead of moving forward at this point, however, Ms. Watson of the Bales firm wrote on May 8, 2012 to advise that the plaintiff wanted to hold this action in abeyance to first determine what portion of her damages might be resolved in the context of the related matters. She then proposed a standstill agreement.

[32] Counsel for the defendants spoke with Watson on May 14, 2012, at which time they conveyed their views that a standstill agreement was unnecessary and that the plaintiff’s objectives could be accomplished in other ways. Mediation was discussed, and according to the plaintiff, she was advised by Watson that defence counsel were interested in going that route.

[33] In fact, according to Yanover, Bales’ office sought a standstill agreement only to preserve the time for delivery of the Reply. They did not seek one for the action at large. In terms of the action, the plaintiff proposed that everyone would have to be in a room together so that all matters could go forward in tandem. It was therefore in the context of why the stand-still agreement was sought that responding counsel advised they did not believe it was necessary. Yanover states further that while his and House’s counsel did not refuse to participate in a global mediation, Nick’s counsel did not initially agree.

[34] It is noteworthy that the plaintiff at no time moved to have this action stayed pending resolution of the related litigation nor did she move for trial together or one after the other.

[35] Notwithstanding the plaintiff’s evidence about why she had so many lawyers, she did not terminate the Watson/Bales retainer, as she implies. Yanover notes that Bales’ retainer came to an end following their motion for removal from the record based on the plaintiff’s non- payment of Bales’ accounts.

The Laidlaw period - September 11, 2012 – March, 2013

[36] Another 4 months passed without action and once again, the plaintiff sought new counsel. Ms. Laidlaw came on board as counsel no. 3, filing her notice of change of solicitor on September 11, 2012. This was followed by a further 2 months of inactivity (presumably getting up to speed, but again, the record is silent), until November 5, 2012, when Ms. Laidlaw wrote to Yanover’s counsel seeking an off the record discussion with her and House’s counsel. It was eventually agreed the three would speak on November 22, 2012.

[37] Laidlaw had a plan for going forward. She proposed to have the plaintiff’s accountant assist by putting together a short form explanation of the relief sought against these two defendants, which Laidlaw then explained to both counsel during their conversation. It was agreed that upon receipt of the accountant’s summary and some other disclosure (not detailed in the evidence), the defendants would be agreeable to proceeding to mediation before discoveries.

[38] Apparently, Laidlaw continued to work on the related matters. She spoke with Nick’s counsel on December 6, 2012 about how to go about that. He was clearly not interested in mediation at that time, as a result of the very divergent stories each counsel appears to have been told by their respective client. His view appears to be that there were too many factual issues to be resolved for a mediation to be fruitful at that time.

[39] Laidlaw advised Yanover’s counsel that Nick was not prepared to entertain mediation at that point by e-mail of December 15, 2012. The response sent later that evening was as follows:

It will be hard to deal with most of what your client claims against the professionals without knowing the outcome with her brother. But let’s see the chart and we’ll talk.

[40] The plaintiff relies on this e-mail as the basis for her assertion that Yanover recognised the need to hold this action back while the others were sorted out. What the plaintiff does not say is that if she shared his views, why she took no steps to implement that position.

[41] A stay order would have solved many of the plaintiff’s problems, but this is part of the push-pull. At the same time, she was also attracted to the economies of having common disclosure among all of the proceedings. These two positions, however, were not easily reconciled.

[42] Laidlaw provided the accountant’s summary as agreed to defence counsel on January 28, 2013. At the same time, further materials were sought from Houser. Yanover was away at that time and his counsel advised he would not be back until mid-February 2013 so she would have to wait for instructions.

[43] Though December, 2012, January and February 2013, Laidlaw continued to address issues that arose in the related actions and stemming from the settlement of the Cousins’ matter. A payment to the plaintiff from the settlement of that matter was challenged by Nick, and it became a side show to these matters. It is not clear what, if anything, she was doing in this matter.

[44] In the context of dealing with the above issue, Houser counsel wrote to Laidlaw, Nick’s counsel and others on February 4, 2013, to explain what payments were made and why, closing with the following:

The foregoing illustrate the extent to which the various litigation proceedings initiated by Ms. Debardine overlap with one another and raise issues that cannot meaningfully be addressed in isolation.

[45] The plaintiff relies on this statement as the basis for saying the matters have to be dealt with together yet she fails to explain why she did not seek an order to implement this approach, either.

[46] The next few days focused on discussions about whether the plaintiff was or was not entitled to trust accounts from Nick, culminating in Houser’s counsel suggestion on February 5, 2013 that counsel participate in a telephone conference call.

[47] Laidlaw wrote back to say she agreed and that she would provide the agenda. One of the issues that she identified as requiring resolution was how to get all of the proceedings together in one court, before one judge. Nick’s counsel indicated he was not prepared to move the Toronto matters to Milton and Laidlaw wrote to say she was fine with Toronto as long as the matters could be heard one after the other. Again, there appears to be the outline of a plan, but it was never taken forward.

[48] At one point in this exchange, Yanover’s counsel wrote that she found it difficult to envisage a settlement without Nick. Clarification was sought and provided.

[49] By February 11, 2013, Nick’s counsel reluctantly agreed to participate in the proposed conference call, but then suggested a motion for directions instead. He then queried why his client even had to be involved in settlement discussions between the plaintiff and her two professionals. This left Laidlaw to inquire of counsel for the two professional if they saw any possibility of a settlement of this action without Nick’s involvement and, if not, how they wished to proceed. It is unclear why plaintiff’s counsel was looking for this input, instead of doing as she saw fit, subject to instructions. It seems, however, that a conciliatory approach was being taken, and there is no suggestion that anyone disagreed with that approach, at least until the issuance of the Status Notice.

[50] The telephone conference call went ahead later that day on February 11, 2013, with counsel for the plaintiff, for Nick and for each of the two defendants in this action participating. Nick’s counsel distributed a summary of what was discussed on February 15, 2013 to all participating counsel. Laidlaw agreed that it was accurate and asked counsel to come up with dates for the next meeting.

[51] During the call, it appears that both defence counsel in this action agreed to defer examinations for discovery in this matter until after a tax meeting had been held or it is clear that none would be. The plaintiff relies on this, too, to support her assertion that the parties saw the sense in not moving forward with this action at that point, yet she sought neither a stay order nor an order extending the deadline under Rule 48.14. Yet again. Her lack of action is not explained.

[52] E-mails exchanged through the rest of February 2013 illustrate that payment of taxes on Donald’s estate had become a pressing issue for the plaintiff. Laidlaw tried to impose pressure to get the next conference call scheduled and Yanover’s counsel wrote back on February 20, 2013 to say that it was not a good time for her for this file to now being moving forward as she was jammed up.

[53] On February 27, 2013, Laidlaw wrote:

It is all a bit frustrating though given that everything has been sitting in abeyance for so long, and I’m just trying to figure out the best way to get to the meat of the dispute. As it is, it may be that we have to bring some type of motion to break the loggerjam (sic).

[54] Laidlaw hit the nail on the head – some court intervention was clearly called for her. But the plaintiff remained in push-pull mode – would the motion be for trial together or a stay of this action pending resolution of the rest?

[55] That day, Laidlaw wrote, to follow up regarding document requests. By this point, Nick’s counsel had come on side, writing to all on March 1, 2013 to indicate what his plans were regarding each of the proceedings in which Nick was involved. This was a major sea change and boded well for a real cooperative approach by counsel for all parties needed to achieve resolution.

[56] Dates for the next conference call were discussed through the early part of March 2013 with various dates in April being identified. And then, just as things were looking bright, the plaintiff terminated counsel.

The plaintiff acts on her own behalf: March 20, 2013 – May 21, 2013

[57] Yet again, the plaintiff and her counsel parted company and on March 20, 2013, she served a Notice of Intention to Act in Person without explanation to counsel at that time or to the court now. Matters were more or less stagnant while the plaintiff again sought new counsel and no motion was brought to achieve either of these two competing goals.

The Sweatman period: May 31-2013 to present

[58] On May 21, 2013, Ms. Sweatman advised all counsel that she had now been retained on the CRA tax matter and in late May 2013, she filed a Notice of Appointment of Solicitor in this action. Thus, a further 3 months had passed without action between Laidlaw’s departure from the file and Sweatman’s retainer.

[59] In late May 2013, Nick’s counsel wrote to all, asking for a telephone case conference to sort out a new timetable to pick up where Laidlaw had left off. All agreed and dates were discussed. According to Yanover, Sweatman went silent at this point so no explanation or dates appear to have been provided to other counsel at that stage. This is unfortunate, as, up until this point, all parties appear to have been onside with the concept of working together in a cooperative way to sort out the tangled web of these inter-related court proceedings.

[60] The plaintiff states in her evidence that she had decided a case conference would not be productive and that it was preferable to deal with the scheduling in writing. There is no evidence, however, as to why she formed this view or that anything of this nature was conveyed to the others, who were left in the dark as to her altered strategy.

[61] The lack of explanation for this shift in approach is troubling, as this shift marks an important turning point in this matter. Having initiated these conference calls to try to sort out matters a few months earlier, at the very least, there should have been some notice by the plaintiff that she was no longer interested in pursuing the route proposed by her formal counsel. It was because of this concerted effort to get everyone together that defence counsel were prepared to sit back and not press for disclosure, as it was anticipated that these conference calls would produce results.

[62] This timing of the plaintiff’s decision to terminate Laidlaw’s retainer and then to move from the constructive approach that Laidlaw had initiated, without alerting the others, turned out to have been particularly unfortunate, as the court issued a Status Notice on June 17, 2013. In her evidence, the plaintiff tried to suggest that this was a court error, and that the Notice was premature as the first defence was only served on August 9, 2013. I presume she intended to say August 9, 2011 but she has not corrected this error despite further affidavits filed by her.

[63] The plaintiff goes on to say that had the court given her the additional time she was entitled to, she believes she would have had a timetable in place, though no draft proposal was circulated by her or her counsel at any time before the Notice issued.

[64] In fact, the court did exactly as the Rule prescribes. Rule 48.14(0.1)(b) includes a notice of intent to defend in the definition of “defence”. As a result, the Rule comes into play within two years of the filing of first notice of intent to defend. In this case, the first defence was filed on June 15, 2011 so there was nothing at all inappropriate about the issuance of the Status Notice in June 2013.

[65] Ms. Sweatman had come on board in May 2013. At that point, Nick’s counsel wrote to ask her the plaintiff’s intensions:

Counsel had more or less worked out a plan/schedule to move the litigation forward with Ms. Laidlaw before she was removed as solicitor of record. The litigation has been on hold since that time, as we were all told your client was in the process of obtaining new counsel (now retained). I have responses to notices of objections in the two estates accounting applications, which I have held off delivering. I also began to draft orders for direction in the two estate accounting application, but my pen is down. Is a conference call in order to get things back on track? At one point, your client also threatened to bring a motion for various relief in the two estates and I am curious if that motions will still go ahead. With summer fast approaching, we need to set up a realistic timetable as the motion will likely be opposed.

[66] In response, Sweatmen asked to see the plan and Nick’s counsel provided her with the notes he took of what counsel had agreed during their conference call in February. Sweatman advised that it is likely that a conference call is a good idea, and she advised she would let him know once she reviewed the material and got instructions. Although there is no response to Nick’s counsel in evidence or any indication of any exchange with the others about this change of plans, it appears from the plaintiff’s evidence that she did not share her counsel’s view, thus instructed her not to agree to a further conference call.

[67] There is no evidence before the court that a proposed timetable was circulated by Sweatman in writing at any time before the Status Notice issued. It was not until June 20, 2013, three days after the issuance of the Status Notice, that Sweatman advised defence counsel that she was putting together a proposal for going forward. On June 28, 2013 she added that the plaintiff was looking to amend her claim, and a draft would be provided by the end of July. However, nothing in that regard was ever provided.

[68] By July 11, 2013, Yanover’s counsel indicated that a substantive Status Hearing may be required as the plaintiff had taken no substantive steps for years and some witnesses were now deceased. Yanover’s counsel asked for a synopsis of the evidence the plaintiff would rely on to explain the delay, to allow the two professional defendants to consider their position in an informed way.

[69] This request was repeated on July 18, 2013 and Sweatman responded with a very brief outline the following day. On July 30, 2013, Houser’s counsel wrote to advise the explanation was not acceptable and that it did not address prejudice.

[70] Although the parties were served with the Status Notice in June, it was Houser’s counsel, rather than the plaintiff, who finally sought a Status Hearing, something the court expects the plaintiff to initiate. On August 1, 2013, Houser’s counsel submitted the necessary request form and a Status Hearing was convened for November 13, 2013.

[71] It was only after the first attendance in Status Hearing Court – and more than 5 months after the Status Notice issued - that Sweatman started trying to move this action forward independently of the others. On November 28, 2013, she wrote asking these defendants to serve their affidavits of documents by December 13, 2013. She also sought dates for oral discoveries during the week of February 24 and March 3, 2014, failing which she indicated that she would unilaterally pick dates. This was a rather unusual request/threat in the face of a fixed date having already been scheduled for a contested show cause hearing.

[72] Neither of the defendants responded, not surprising in light of them having put the plaintiff to showing cause. Sweatman was apparently not deterred by this and on January 20, 2014, she served notices of examination on both Yanover and Houser, returnable on March 5 and 6, 2014. Counsel for both parties advised their respective client would not attend as they were of the view that there was some prospect that the action would ultimately be dismissed. This, too, was not a surprising or unusual position for them to have taken in view of the status of the matter at that point, yet the plaintiff takes issue with their position in light of the evidence that they believed there was only some prospect of their success.

[73] In her affidavit of March 4, 2014, the plaintiff states:

I have always had the intention to move ahead with this matter. I have even tried to do so in the interim while waiting for the status hearing to be heard.

[74] However, the plaintiff’s efforts to move towards the disclosure stage were not taken until after receipt of the Status Notice and the first attendance. She was also not the party who sought the Status Hearing. There is also no evidence to the effect that the plaintiff served her own affidavit of documents before demanding same from the defendants, along with discovery dates.

EVIDENCE REGARDING PREJUDICE

[75] The plaintiff’s evidence

The only evidence tendered by the plaintiff regarding prejudice is to the effect that if the action is dismissed she will be prejudiced. She has provided no evidence regarding the availability of documents or witnesses and has not even asserted that the defendants will suffer no prejudice if the action is permitted to continue. To the extent that she has commented about the defendants’ prejudice, it is to refute their claims that they believe they have been prejudiced by her having litigated and resolved the Cousins matter separately, with different counsel. She seems to think they could and should have added themselves to that action (she does not explain how or in what capacity) and claims that any prejudice they may suffer as a result of not having done so is the result of their (or their counsel’s) own mistakes or decisions not mine.

Yanover’s evidence

[76] Yanover notes in his evidence that the plaintiff has at no time, before the Status Notice, sought to move this action forward. Instead, at various times, she has sought a tolling agreement; suggested an omnibus mediation encompassing all of the litigation matters she is involved on; and asked the professional defendants in this action to consider a settlement.

[77] He also asserts that the plaintiff caused him prejudice in her settlement of the Cousins action. The settlement took place in November 2012, without notice to him or to his counsel, though the plaintiff now claims the same damages from these defendants that she sought from Cousins.

[78] He also points out that while Laidlaw was trying to arrange a case conference among all counsel after she took over these files, she was also settling the Cousins action, then asking Houser’s counsel to release funds from his trust account in relation to that settlement.

[79] Yanover points out that the plaintiff issued her claims in this and the Cousins action on the very same day, that both make the same complaints against the executors of the Cousins Estate and the relief sought in one mirrors what is sought in the other.

[80] It is in that context that the plaintiff now maintains that these two actions are related. However, each of the two actions was started by different counsel, the firm of Blaney McMurtry LLP having acted on the Cousins matter. As a result, these defendants had no access to what was transpiring in the other proceeding, separate and apart from this action. It was only after the fact that they learned that the Cousins action has been settled without their input or an opportunity to participate.

[81] Yanover sees this as problematic - any deficiencies in the damages obtained in that action are now being sought from the professional defendants in this one. This has deprived them of an opportunity to seek apportionment of liability under the Negligence Act. As matters stand, this settlement and the likely expiry of the applicable limitations period has prejudiced their rights to claim over, there can be no right to seek contribution or indemnity. The defendants may well be correct. In any event, the act of starting two actions for the same damages against two sets of defendants on the same day, but using different counsel, is, at the very least, questionable. The optics are certainly not good and called for a credible explanation.

[82] Instead of explaining her rationale for starting two related actions on the same day in separate actions issues by different firms, the plaintiff points a finger at the defendants, again not a helpful strategy in the context of having to show cause, thus, seek the court’s indulgence.

[83] Yanover is concerned that this is the approach the plaintiff plans to employ generally, and that she will settle or litigate her other actions and then come against these defendants for what she believes to be a shortfall in her recovery against the others.

[84] Yanover resists the imposition of a timetable in this action on the basis:

• Of having been prejudiced by settlement of the Cousins litigation;

• That the same relief is sought against Nick in 4 other proceedings;

• That having to attend mediation and discoveries will put him in a position of conflict with Nick, who is his client;

• A joint approach to all of these actions will increase his costs; and

• That he has spent over 2 years subject to this action for $3 million which the plaintiff is only now pursuing.

[85] Like the plaintiff, it is unclear what Yanover views as the optimal approach if this matter is permitted to proceed. On the one hand, he is concerned if the matters are dealt with separately, as the plaintiff has already settled with Cousins and he feels she will do the same with Nick, and then turn to him and Houser for any perceived shortfall in her recovery against them.

[86] On the other hand, he expresses concern about his legal costs if he is dragged into these other matters. It seems the plaintiff had difficulty committing to one approach or the other – but Yanover seems similarly confounded by how these matters would have been best dealt with.

House’s evidence

[87] Houser has been practicing law since 1986. He notes that this action was commenced on the eve of the expiry of the limitation period with respect to what he refers to as the Barrie Property that was conveyed to the plaintiff.

[88] As he reads the statement of claim, the plaintiff’s action against him, as her former solicitor, is focused on the interpretation and effect of an agreement dated August 1996 between the plaintiff’s late father, Donald, and his common law spouse, Leonie Cousins. Houser had no involvement in the preparation of that agreement. The plaintiff now claims that when she inherited the Barrie property, under the terms of Leonie’s will were too onerous. She claims she overpaid taxes and that the co-executors imposed conditions to which she ought not to have acceded. She blames the two professional defendants in this action for both aspects as a result of the advice they provided to her.

[89] Houser says the thrust of the claim against him is based on allegation that he acted in an impermissible conflict of interest between the plaintiff and her brother, Nick, preferring Nick’s interests to hers. In his view, this action deals largely with the plaintiff’s complaints about the quantum and allocation of the tax liabilities related to the estates of both her parents and Leonie Cousins, and, as he sees it, these issues duplicate claims already made in other court proceedings.

[90] Rather than move this action forward over the last three years, Houser claims that the plaintiff litigated the other matters to his and Yanover’s prejudice in this case.

[91] Like Yanover, Houser points to the overlap in allegations in this action and the Cousins matter and he notes that the other 4 proceedings, like this one, seek to reallocate or adjust tax liabilities as between the plaintiff and her brother and he sets out the overlapping provisions between each of these 4 matters and the current action against the professional defendants.

[92] Since issuance and service of this claim, the plaintiff has not:

• served her affidavit of documents;

• sought his affidavit of documents (until after the first attendance at Status Hearing court);

• scheduled discoveries or circulated a discovery plan (again, until after the first attendance at Status Hearing court;

• moved to have this action stayed; or

• moved for consolidation of this action and the related proceedings.

[93] Like Yanover, Houser discusses Watson’s standstill proposal. His counsel was of the view that there was no point to it, in that the action has already been commenced. Holding the action in abeyance was not something raised by Watson, who, in any event, was soon replaced and the issue of holding this matter back did not arise again.

[94] Houser also notes that the plaintiff at no time suggested either that this action and the others should be consolidated or litigated together or that this action should be held in abeyance pending resolution of the other matters until after the Status Notice was received.

[95] Houser raised the same issue of prejudice as Yanover, in the context of the settlement of the Cousins proceeding. He points out that had she brought one action against all parties who she claims are responsible for her damages, the basis of liability would have been joint and several, and the parties could have cross-claimed against one another. Alternatively, the two professionals could have protected their rights by a tolling agreement and the court would have apportioned liability under the Negligence Act.

[96] Instead, Houser sees the plaintiff as having litigated the Cousins matter behind his and Yanover’s backs, settling out Cousins with a release and prejudicing their rights to claim contribution and indemnity from the Cousins executors.

[97] Adopting a timetable for the action changes nothing with respect to what has transpired with respect to the Cousins litigation or resolves the problems raised by the multiplicity of proceedings issues by the plaintiff.

THE LAW

[98] It is a matter of trite law that the plaintiff bears responsibility for moving their action forward (see Wellwood v. Ontario Provincial Police, 2010 ONCA 386). This explains the approach the court has taken when dealing with opposed Status hearings. It is therefore of little value for a plaintiff to suggest no one was pressing her to take action. That is the whole point of the Rule 48.14 regime – to do away with counsel-induced delay. Regardless of what defence counsel does or does not do, it is the Rule that requires progression towards resolution.

[99] In Khan v San Life Assurance, 2012 ONCA 650, the Court of Appeal laid down the two-part test the plaintiff must meet in a show cause hearing as follows:

1. The plaintiff has the burden of demonstrating that there is an acceptable explanation for the litigation delay; and

2. That if the action is permitted to proceed, the defendant will suffer no non-compensable prejudice.

[100] Two more recent Court of Appeal cases have made it clear that this two-part test is to be applied as it reads, in a conjunctive manner, such that both parts of it must be met, with the plaintiff bearing the burden of proof throughout.

[101] As a result of a recent third Court of Appeal decision, however, it is clear that, notwithstanding the strict wording of this approach, the court is still expected to balance all relevant factors in the context of dealing with the first part of the test, thereby continuing to apply a contextual approach as it would when dealing with a motion to set aside an administrative dismissal order. In short, in determining whether or not the explanation provided for delay is acceptable, the court should look at all relevant factors.

[102] In 1196158 Ontario Inc. v. 6274013 Canada Ltd. 2012 ONCA 544, [2012] OJ No. 3877, the court, while discussing the inherent tension in a system geared to doing justice on the merits while also achieving finality within a reasonable time frame, highlighted the desirability of rules that the public knows will be adhered to. This approach builds public confidence in our justice system, while being perceived as capable of resolving disputes in a fair, efficient and timely manner.

[103] The rational in 119 for this approach is set out as follows:

It is surely not too much to expect a party to either set a matter down for trial within two years of the close of pleadings or to be able to offer a reasonable explanation for why it is not possible to do so.

[104] In the 119 case, the Court of Appeal speaks of the need for some degree of flexibility to address the unexpected and unusual contingencies, which might render strict compliance with the 2-part test difficult or impossible. The use of the phrase, unexpected and unusual suggests that the kind of events the Court foresees as justifying a more lenient approach will occur as the exception rather than the rule, and, as is the case with respect to the test, itself, will have to be supported by cogent evidence.

[105] When dealing with 119, the Court of Appeal distinguished it from Bolohan v. Hull, 2012 ONCA 121, where the defendant’s conduct was considered in the mix of factors when the issue of delay was reviewed, on the basis of the facts. In Bolohan, the parties had been at logger heads over the appointment of a mediator, such that the defendant had a role in causing delay. In 119, however, the court examined the factual matrix carefully and concluded that the defendant had done nothing to resist the normal progress of the action. There was therefore no basis to assert that they had waited in the weeds in order to gain a tactical advantage.

[106] I take from this that a defendant should not be penalized for not pressing a plaintiff to proceed with their action, particularly where it appears that an alternative approach is being proposed that could save time and costs all around. It is generally where the defendant has done or failed to do something (eg/ not cooperated with regard to scheduling dates for discovery or mediation) that the court will factor their conduct into the mix.

[107] The approach adopted in 119 was applied by the Court of Appeal in Faris v. Eftomovski 2013 ONCA 360, [2013] OJ No. 2551, where the court discussed the importance of building efficiencies into the system, stating that parties will be held to the two-year deadline unless they can demonstrate, on compelling evidence, that there is a rational basis to depart from it. This, of course, will vary from case to case, as it is a fact-driven exercise.

[108] In Kara v. Arnold 2014 ONCA 871, the Court of Appeal again dealt with an appeal from a Status Court order which dismissed an action for delay. The delay has been extensive in that case - the Status Hearing took place more than 14 years after the action has been commenced and more than 16 years since the facts giving rise to the claim had unfolded.

[109] Blair, J.A. repeated the oft articulated tension discussed in earlier cases, between the need to enforce the Rules in a way that ensures timely and efficient justice, while promoting the desirability of resolving disputes on their merits.

[110] He added:

The court does not take a rigid or “purely formalistic and mechanical” approach to the application of the timelines in the Rules “that would penalize parties for technical non-compliance and frustrate the fundamental goal of resolving disputes on the merits. That said, the Rule 48.14 was designed to have some teeth, in my view.

[111] His Honour then moved on to deal directly with the appellant’s submission that the Status Hearing judge had neglected to apply a contextual approach and consider and weigh all relevant factors and he disagreed.

[112] As he noted:

In my view, little is to be gained by debating whether there is a bright line between the “contextual approach” and the approach enunciated in later authorities such as Faris and 1196158 Ontario v. 6274013 Canada Ltd. It seems evident that in considering the reasonableness of any explanation for delay in question, a status hearing judge will almost invariably be engaged in a weighing of all relevant factors in order to reach a just result.

[113] Blair J.A. also pointed out that while Faris and 119 do not represent a fundamental change to the Court’s approach when dealing with these matters, they do underline the need for timely compliance.

[114] As I stated in Semaan et al. v. OneWorld Energy et al.,2013 ONSC 5585 (upheld by Lederman, J. at [2014] OJ No. 2215), a Status Hearing is not a perfunctory event. The plaintiff must be prepared to not simply say what they did or failed to do, but rather, they must explain the rationale for their approach. Simply putting forward a chronology does not amount to a satisfactory explanation for delay.

[115] It is in the context of assessing the adequacy of the plaintiff’s explanation that the court must consider all relevant factors. Some may add to the weight of the plaintiff’s explanation, but others may detract from it.

[116] Similarly, when it comes to prejudice, the approach contemplates a reverse onus, so it is up to the plaintiff to demonstrate why there will not be non-compensable prejudice to a defendant if the action is permitted to continue. Tossing out bald assertions cannot meet that onus.

ANALYSIS and CONCLUSION

Explanation for the delay

[117] The plaintiff’s suit against these defendants arises in large part from allegedly bad advice received from them with respect to the apportionment of tax liability as between her and her brother. She claims they favoured her brother’s interests over hers so were in a position of conflict. What she seeks by way of redress for these perceived wrongs amounts to what she has already sought from Cousins in an action that she has settled without their participation, and what she continues to claim from her brother, Nick, in other proceedings.

[118] Accordingly, there are four things she could have done to simplify these inter-related proceedings:

1. The plaintiff has, from time to time, expressed the view that she could not proceed with this matter as her damages in this action have not crystalized. If that was her belief, she could have sought a stand-still agreement from these two defendants before issuing suit, to protect against the expiry of the limitation period. This would have allowed her to sort out her damage claims in these other proceedings first, exhausting her remedies against Nick and Cousins before seeking any possible shortfall against the two professional advisors. In that context, this claim may have proven to be entirely unnecessary;

2. If a standstill agreement was not possible, the plaintiff could have issued one claim by one counsel against all parties, including Cousins, which would have permitted claims for contribution and indemnity among them. Instead, she started this action and the Cousins action on the same day, using two different law firms, a fact that she has never explained. The defendants in this action now express concern that they are expected to make up for any shortfall in that action, though deprived of the right to have input into how that claim was resolved then or to go against Cousins now;

3. Having started as she did, once it had become obvious how unwieldy this format of multiple counsel and multiple proceeding was, the plaintiff could have moved to consolidate them all or sought an order for trial together or one after the other of all of the outstanding proceedings; or

4. The plaintiff could have moved to have this action stayed pending resolution of the other proceedings which would have clarified the damages she might be entitled to here.

[119] In fact, the plaintiff chose none of the above options. At different intervals, she talked about doing one or more of these things but she never committed to any definite course. She moved quickly from the firm that issued process in this matter, to Yach, then to Bales, to Laidlaw, and to Sweatman, acting on her own between the latter two. While different approaches were proposed and initiated at times, none came to fruition as the plaintiff “jumped counsel” before any plan could be fully implemented. Many months were lost each time she changed counsel and they had to get up to speed on this complex web.

[120] While the counsel is entitled to choose and change counsel as she sees fit, the Rule 48.14 clock was always ticking. She ought to have sought an extension of that deadline in view of the repeated delays caused by her approach to this litigation and her apparent inability to commit to one course of action.

[121] It is still not clear what the plaintiff’s preferred approach is. In the first 15 minutes of his submissions, her counsel made three points that were not consistent with one another:

• First, he stated that the plaintiff has always said that all of these proceedings have to move forward in tandem as it will create efficiencies if they are heard one after the other;

• Despite that, he also said she did not want to consolidate these matters. Consolidation is only one way of creating efficiencies. The other is to seek an order for trial together or one after the other. There is no evidence to explain why a motion seeking this relief was never brought;

• A few moments later, plaintiff’s counsel stated that we have to wait to see how these (the related matters) turn out first. Waiting is not consistent with moving forward in tandem to create efficiencies.

[122] All of this is difficult to reconcile with the fact that the plaintiff is far from an unsophisticated litigant – a point made by her own counsel. As an American attorney, herself, she felt competent to express strong, and often, negative views as to how defence counsel have conducted themselves in this matter. She is critical of them for not having somehow inserted their clients into the Cousins litigation, though there is no evidence from her to explain why that action proceeded independently, with yet another counsel who was not retained at any point to act on any of these matters. She expresses amazement that defence counsel refused to participate in disclosure while a show cause hearing was pending, yet fails to state why it took her so long to put forward a proposal for disclosure.

[123] In the end, the plaintiff’s push-pull approach – one day wanting to hold this action in abeyance, the next looking for efficiencies by having all these matters move forward together – is what has led to her current problem. This uncertainty on her part, along with a rapid succession of counsel, resulted in much grinding of wheels but little progress. I am left with the sense that the plaintiff was eager to minimize costs but unable to decide how best to accomplish that goal. While dithering between moving all actions in tandem or having this matter stayed, time passed and this action effectively lay dormant.

[124] In fact, it was ultimately defence counsel, not the plaintiff, who sought this status hearing. This, itself, is telling as regards the plaintiff’s intentions.

[125] This finger-pointing exercise continued at the hearing. Plaintiff’s counsel pointed out that no one ever discussed s standstill in terms of Rule 48, also, no one was pushing her to get on with the action

[126] In fact, it was Rule 48 that was “pushing her”. This was the system that was in place at that time, so whether or not other counsel did or did not push the plaintiff, the onus was on her to take the action she had commenced forward (see Wellwood). If the plaintiff needed more time to sort out how best to do that, again, the onus was on her to seek an extension of the Rule 48 timelines.

[127] Instead, the plaintiff’s focus was on getting everyone to work together to resolve these matters. Though Nick’s counsel in related proceedings was less than enthralled with this approach, even he relented and agreed to Laidlaw’s proposal. However, once was it agreed that the parties would convene another telephone case conference to take this further, the plaintiff again changed her mind, this time opting for scheduling to be discussed in writing, a longer, more tedious process with so many counsel involved. Yet again, she changed counsel, failed to alert the rest to her new position and this matter fell through the cracks.

[128] When one looks at the time that has passed from the issuance of the action in January 2011, it cannot be said that this is an extreme case. But the focus of Rule 48.14 is not solely on the extreme case. The Rule was predicated on the presumption that in most cases, plaintiffs should be able to set their actions down for trial within two years of delivery of the first defence. While Rule 48.14 was recently amended, it is the two-year regime that applies to this action. And that had to be addressed. In my view, it hasn’t been.

[129] The longer the delay, the more intricate an explanation is called for, but even when the delay is only just beyond the two years period, a reasonable or acceptable explanation is in order. Therefore the question before this court is whether the explanation provided can be viewed as accpetable.

[130] Looking at what was done by various counsel and when, it appears that both defences had been filed in this matter by mid-August 2011. Yach sought an indulgence regarding delivery of a Reply, and in the end, never delivered one. It appears she did nothing further in this matter, yet she remained on the record for a further 5 months. This is not explained.

[131] Yach was replaced by Bales’ office, who filed their Notice of Change on January 19, 2012. Bales was counsel number 3 and though defences had been served back in August, pleadings had not yet closed, in view of the anticipated Reply. This was already 7 months beyond Houser’s delivery of his notice of intent to defend, so 7 months into the two year period before having to set the action down for trial.

[132] Watson of Bale’s office was apparently confused regarding the terminology, seeking a standstill agreement when what she really wanted was a stay of the action. Defence counsel misunderstood her proposal, noting that there was no need for a standstill agreement as the action had already been issued.

[133] At the same time as pushing for a standstill agreement, Bales’ office also noted that all matters would have go forward in tandem, so both approaches were on the table at that time. Instead of pursuing either by way of agreement or motion, a collaborative approach was sought. By the time Bales was replaced in September 2012, the action was 13 months into the 2 year period and no one had even begun to discuss documentary or oral disclosure.

[134] Laidlaw took over on September 11, 2012 and she had a plan of sorts, but the emphasis remained on avoiding motions or moving towards exchange of documents or scheduling discovery dates. Laidlaw got the plaintiff’s accountant to put together an explanation of the plaintiff’s damages in summary form and she then sought to get all counsel on all related matters to proceed together to mediation. In view of the divergent views and the need to get the facts on the table, Nick’s counsel did not see this as a useful approach at that time.

[135] In the ensuing months, Laidlaw worked on the related actions, but it is not at all clear that anything was done to move this matter forward. While the plaintiff notes that these defendants, from time to time, said or did things that suggested they shared her views that this matter could not be dealt with in isolation, the onus remained on her to take that position forward. What she needed was an order for trial together, and if she was of the view she had agreement or at least, recognition of that from the defendants, she ought to have bought her motion. Yet no such motion was brought and, instead, more discussion was proposed.

[136] Again, the plaintiff reverted to a collaborative approach and ultimately, all parties were on side to participate in a telephone case conference to discuss going forward. This occurred on February 11, 2013 and scheduling a follow up call was in the works.

[137] In the interim, it was agreed to defer examinations for discovery pending resolution of the outstanding tax issues. By this point, it was 18 months into the 2 year time frame envisaged by Rule 48.14. It ought to have been clear to the plaintiff that her action would not be set down for trial within 6 months – yet no extension of that timeline was sought and no explanation for that gap is in evidence. The onus was on her to deal with this.

[138] Dates in April were discussed for the next case conference but on March 22, 2013, the plaintiff filed a Notice of Intention to act in Person. As a result, the efforts made my Laidlaw in the preceding 6 months ultimately took the matter nowhere, leaving it hanging in limbo.

[139] Nothing appears to have happened while the plaintiff acted on her own behalf. She finally retained Sweatman on May 31, 2013. Correspondence from Nick’s counsel about scheduling the long awaited follow-up case conference was initially answered by Sweatman by her request for a synopsis as to what had happened at the earlier event. She then advised that she thought a further case conference was a good idea, but that she would need instructions.

[140] That was the last defence counsel heard from Sweatman about that course of action. According to the plaintiff this was because she had decided she would prefer to have this step dealt with in writing. The plaintiff’s change of view was not shared with defence counsel, however, and no formal proposal was made by the plaintiff in place of the case conference.

[141] The Status Notice was issued on June 17, 2013, and it was only thereafter that the plaintiff began to talk about moving this action forward, eventually serving an affidavit of documents and insisting on same from these defence counsel, but only after the first attendance at a status hearing. Discovery dates were demanded as well – and refused in view of the pending hearing.

[142] In the context of these facts, I am unable to say that the plaintiff has provided an acceptable explanation for the delay. Nor has she demonstrated on ongoing desire to continue with this action. The fact that she was and remains unclear on how best to proceed is telling.

[143] When this is added to her repeated changes of counsel and the fact that she did not seek a status hearing, leaving even that step to the defendants, it suggests that the plaintiff never really intended this matter to actually go forward. Perhaps this claim was only issued to bring more chequebooks to a global mediation or it was intended as a back-up plan in the event that she was unable to get what she felt she deserved from Cousins and Nick. What is clear is that she was reluctant to commit the necessary resources to this action in the form of a motion or disclosure.

[144] I am unable to say that the ongoing lack of activity in this matter, while the related matters were apparently being dealt with and the Cousins action, started on the same day was settled, demonstrates the necessary level of ongoing intention on the part of the plaintiff to permit proceed with this action.

[145] Despite a lot of talk, the action never got past the pleadings stage, and the plaintiff took no steps to obtain a stay of the action, an order for trial together or an extension of the time lines. Disclosure only arose after the Status Notice was issued.

[146] By way of explaining the delays, the plaintiff has focused on the complexity of the inter-related proceedings to provide context. In fact, this in no way enhances her position, as this quagmire of proceedings is largely of her own making. She chose to sue Cousins independently, using separate counsel, though that action and this one were commenced on the same day, and though she now asserts that the two actions are related.

[147] In paragraph 6 of her Fresh as Amended Factum, the plaintiff states that it is more efficient and cost effective to have joint examinations and mediation, yet she failed to move to have these proceedings brought together or to circulate a discovery plan. In paragraph 10, she states that certain disputes need to be on the backburner to deal with more pressing issues…..The plaintiff is attempting to mitigate damages or at a minimum crystalize them which is a required first step to continuing the within action, yet she sought no stay of this proceeding or even an extension of the Rule 48.14 timeline.

[148] In any event, these two assertions are in direct conflict with one another and have been since the outset. The submissions on this show cause highlight the plaintiff’s inability to decide which course to follow and to stick with it. Instead, she effectively did nothing to move this action forward, on its own or in tandem with others, or to legitimize holding it back. She simply took the path of least resistance…at least, until that path came to an end in June 2013.

[149] There is a further issue I must consider in the context of delay. In assessing the sufficiency of the evidence advanced to explain delay, I must assess all relevant factors. Thus, though the prejudice asserted by both Yanover and House may not technically qualify as prejudice caused by delay that they can rely on in the second part of the test (except, perhaps, with respect to the Cousins action), it is prejudice, nonetheless, caused by how the plaintiff framed her cases and the manner in which she allowed them all to proceed separately. Though she was not the plaintiff/applicant in all of them, she was involved in them all and it was always open to her to move for trial together or one after the other. Had she done that, the defendants would not be in the position they are in now, where the Cousins action has been settled without any input from them, leaving them potentially holding the shortfall bag, as the damages claimed are effectively the same.

[150] One of the more shocking assertions by this plaintiff is to the effect that the Status Hearing was sought less than two years after the first defence was filed. Aside from being wrong (the Rule defines a defence as including a notice of intent to defend, and the first notice of intent to defend was filed on June 15, 2011, so two years and 6 days before the Status Notice issued), the status hearing was sought by defence counsel – not by her. How can she possibly rely on that to demonstrate an ongoing intention to proceed?

[151] When reviewing all of these factors, I find that the explanation for the litigation delay is not satisfactory, therefore not acceptable.

Prejudice

[152] Again, the onus remains with the plaintiff to demonstrate that the defendant will suffer no non-compensable prejudice if the action is permitted to proceed. While the factum states that all witnesses are alive and all documentary disclosure is still available and in the hands of the plaintiff or the defendants, no source for this factual assertion is noted in the factum, no doubt because there is no evidence on the record addressing this point. The action has not yet gone through disclosure so it is entirely unclear if any of this is accurate. Making a submission in a factum does not amount to providing the court with evidence it can rely on.

[153] Further, to the extent that this action is related to other proceedings, the state of the evidence in those proceedings is also relevant to this one, as the plaintiff’s inability to make out her claim in any of the others could come back against the professional defendants here.

[154] Contrary to what is asserted in paragraph 30 of the Fresh as Amended Factum, there is no evidence here regarding the status of witnesses; the Status Notice was, in fact, sent out when it ought to have been; and there is no evidence that the parties had been discussing a timetable for some time before the status notice was issued. There is no evidence on the record before this court regarding the first and third of these assertions and the second is simply wrong.

[155] To the extent that the parties were starting to make progress, that was the result of Laidlaw getting them all to participate in a case conference. Her reward for this accomplishment was termination of her retainer and her hard-won collaborative approach discarded.

[156] The fact that there are other proceedings, though known to all, is not a “get out of jail free” card for this plaintiff – she had to decide whether to move matters forward together or to hold this action in abeyance until other issues were resolved. Although she articulated both positions at various times, and now asserts both concurrently without concern for the obvious inconsistency, she failed to commit to either course of action by taking the necessary steps to put one plan or the other in place. This is the nugget of the problem – the plaintiff really did not and still does not know what she wants to do with this action, other than keep it alive - at least for now.

[157] In that this and the Cousins actions were started at the same time, but inexplicably given to two different firms, and as the Cousins action was pushed forward and ultimately resolved, there is an argument to be made that holding this matter back while the other proceeded is a form of prejudice caused by the delay in dealing with this matter, and this is prejudice that cannot be compensated for.

[158] In any event, as the limitation period for starting this action expired long ago, a presumption of prejudice arises, one that is easily rebutted but to which actual evidence-not simply a bald assertion in a factum – must be addressed. I was taken to no such evidence here.

[159] Although the plaintiff is in a somewhat better position regarding prejudice than she is with respect to the issue of delay, the test is a conjunctive one, such that she must meet both parts of it. In my view she has failed to meet the delay aspect of the test and is marginal regarding prejudice. She is still on the fence about whether the actions should be tried together, moving them to common discoveries, or whether this action she be held back until all the rest have been resolved. Her thinking about what to do next if permitted to go forward is no clearer now than it was when this all began, 5 lawyers ago.

[160] I am therefore dismissing this action. In my view, that is the just order to be made in the context of the record before the court.

[161] I can be spoken to regarding costs within 30 days of the release of these Reasons if the parties are unable to agree.

Master Joan M. Haberman

Release March 9, 2015