SUPERIOR COURT OF JUSTICE - ONTARIO

CITATION: AN v. TRUSTEES OF TORONTO KOREAN METHODIST CHURCH, 2015 ONSC 1624
COURT FILE NO.: CV-10-404138

HEARD: MARCH 11, 2015

RE: Chullsook An

v.

Trustees of Toronto Korean Methodist Church, Dong-Ki Sok, Hye Young Shin and Young Don Lee

BEFORE: MASTER R.A. MUIR

COUNSEL: Larry J. Levine Q.C. for the plaintiff Mark A. Ross for the defendants Trustees of Toronto Korean Methodist Church, Dong-Ki Sok and Hye Young Shin

REASONS FOR DECISION

[1] The plaintiff brings this motion pursuant to Rule 59.06(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”). The plaintiff seeks an order varying my timetable order made at a status hearing on January 20, 2014. The plaintiff seeks additional time to get this action ready for trial.

BACKGROUND

[2] This action involves a dispute over the transfer of a house located at 60 Pemberton Avenue, Toronto (the “Property”). The house was transferred by the plaintiff to the defendant Trustees of Toronto Korean Methodist Church (the “Church”). The Church takes the position that the transfer of the Property was a gift. The plaintiff alleges the transfer was arranged by improper acts on the part of the Church’s pastor and his wife. The events giving rise to the claim took place in 2008 and 2009.

[3] This action was started on June 2, 2010. Little has been done to get this action ready for trial. The plaintiff did not serve her affidavit of documents until May 30, 2014. Oral discoveries have not taken place despite a number of dates being scheduled. On each occasion it appears that the examinations for discovery had to be cancelled due to some form of default on the part of the plaintiff.

[4] On July 12, 2012, the court issued a status notice. The plaintiff served a status hearing request form and a status hearing was scheduled to be heard by me on October 25, 2012. The status hearing was adjourned several times to permit the plaintiff to deliver evidence to show cause why the action should not be dismissed. It was also adjourned on several occasions due to the plaintiff changing counsel or being without counsel. Finally, on January 20, 2014, the parties agreed on a timetable. I made an order that provided as follows:

• the plaintiff’s proposed motion to amend her statement of claim would be filed by February 19, 2014;

• affidavits of documents would be exchanged by May 31, 2014;

• examinations for discovery would be completed by June 30, 2014;

• discovery motions would be filed by October 30, 2014;

• mediation would take place by November 30, 2014;

• this action would be set down by January 19, 2015.

[5] I also ordered that no further court ordered amendments to the timetable would be permitted save for exceptional circumstances.

[6] No motion to amend the statement of claim was brought. The plaintiff did serve her affidavit of documents on May 30, 2014. Discoveries did not take place before the June 30, 2014 deadline or since. A requisition to schedule this long motion was filed in September 2014. I made a timetable order to govern the hearing of this motion on September 29, 2014. On October 16, 2014, the plaintiff served her motion record returnable March 11, 2015. It appears that the plaintiff has fully complied with my September 29, 2014 timetable order.

ANALYSIS

[7] I agree with the defendants that the test on this motion is similar to the test to be applied on a motion to set aside a registrar’s dismissal order. Those factors are summarized in my decision in O’Neill v. CTV Television Inc., 2012 ONSC 6183 (SCJ – Master) at paragraphs 7-8. Four factors are of central importance. The court must consider the explanation for the delay, whether the deadline was missed due to inadvertence, any delay in bringing the motion and prejudice to the defendant. The court must apply a contextual analysis and make the order that is just in the circumstances.

[8] I have considered and applied those factors in determining the issues on this motion.

[9] In terms of the delay, it is important to note that this is not a situation where a proceeding has been completely ignored and forgotten for extended periods of time. The plaintiff was required to respond to several interlocutory motions, including motions for an order requiring the plaintiff to pay occupation rent, security for costs and summary judgment on the Church’s counterclaim. The Church had amended its statement of defence in July 2011 to advance a counterclaim. In addition, the plaintiff brought a motion of her own seeking a certificate of pending litigation. That motion was heard by Master McAfee and the plaintiff was successful in obtaining leave to issue the certificate of pending litigation. The plaintiff did attend to be examined for discovery, although she did not appear with an accredited interpreter.

[10] Nevertheless, very little has been done in terms of the steps necessary to move this matter toward trial. This action is nearly five years old. The plaintiff explains her delay by reference to various health issues, her financial circumstances and her inability to speak English.

[11] In my view, the medical evidence is clear and unchallenged. The plaintiff suffers from very serious mental health and addiction issues that appear to be largely responsible for her inability to advance this claim. The plaintiff is ill. I am aware that Justice Spence rejected a similar argument in 2012. I do not know what evidence was before Justice Spence but I do note that the record before me contains a significant amount of medical evidence that post-dates the appearance before Justice Spence.

[12] The defendants submitted that they have heard all of these excuses before. I agree. They have. However, the evidence shows that the plaintiff’s health issues have been ongoing for many years. Moreover, there is simply no benefit to the plaintiff in deliberately delaying this action. She is paying occupation rent to the Church for living in a property she claims she still owns. It is in the plaintiff’s interest that this issue be resolved as soon as possible. I do not view the plaintiff’s reliance on her medical condition as tactical.

[13] I also accept that the plaintiff’s illness has, in the past, impaired her ability to instruct counsel and move this action forward. Importantly, however, it now appears that the plaintiff is in a position to deal with this litigation in a more responsible manner. The plaintiff has a very capable new lawyer who is committed to the action. The plaintiff’s son has returned from the United States and has assumed a significant role in assisting his mother. He has committed to doing so in an affidavit filed on this motion. The medical evidence shows that the plaintiff’s condition has improved. The plaintiff is substantially current with her obligations to the Church. She has met all of the court ordered deadlines in connection with this motion.

[14] The explanation for the litigation delay need not be perfect. It simply needs to be satisfactory. In my view, the plaintiff has met this element of the test.

[15] I do not view the question of inadvertence as particularly relevant to this motion. Mr. Levine was simply unable to comply with the existing timetable when he was first consulted about this matter in June 2014. There was some delay of a few months in bringing this motion over the summer of 2014 due to Mr. Levine’s personal commitments and his understandable need to be certain that the plaintiff was committed to improving her health and handling this matter in a responsible fashion. In any event, I do not view that delay as particularly significant and there has certainly been no unexplained delay since September 2014.

[16] Importantly, there is simply no evidence of prejudice to the defendants. In January 2014 they were prepared to agree to a timetable with a set down deadline of January 2015. From that I infer that they were not too concerned about prejudice. There is no evidence that anything has happened in the interim to alter that conclusion. I also note that the plaintiff has now served her affidavit of documents and is available to be examined for discovery. The defendants have been aware of this claim from the outset and have been represented by counsel throughout. Prejudice is the key consideration on motions such as this and I am satisfied that the defendants will not be prejudiced if this action is permitted to continue.

[17] One further factor must be considered. That factor involves my order that no further court ordered amendments to the timetable would be permitted save for exceptional circumstances. In my view, there are exceptional circumstances that would justify the timetable amendments the plaintiff is seeking. The plaintiff and her former lawyer parted company very soon after the January 2014 status hearing. That left the plaintiff without a lawyer for several months. It must be remembered that this is a plaintiff with serious mental health and addiction issues who speaks very little English. By the time Mr. Levine arrived on the scene, very little time was left for him to review the “voluminous” files, get up to speed and conduct discoveries.

[18] I also view the changes to the plaintiff’s personal situation as amounting to exceptional circumstances. She is simply in a far better position to advance this litigation than she was in the spring of 2014. The plaintiff’s son returned from the United States in May 2014. According the Dr. Cho’s letter of July 24, 2014, the plaintiff’s condition is improving and her son’s presence has “been of great benefit to her overall level of function”. The plaintiff has been substantially current with her obligations to the Church since the appearance before Justice Stinson on May 1, 2014.

CONCLUSION

[19] On a motion of this nature the court must balance the right of a plaintiff to have her claim decided on its merits with the right of defendants to timely justice. I accept that this action has been hanging over the heads of the defendants for a considerable period of time and the plaintiff is making very serious allegations against them. That is an unfortunate by-product of our system of civil justice. Some delay is inevitable, especially when one of the parties is unwell. I am optimistic, however, that some of these concerns can be overcome now that Mr. Levine is involved and the plaintiff’s son has returned to Canada.

[20] For these reasons, I have concluded that it is in the interest of justice that the plaintiff’s action be permitted to continue and that she be given one final opportunity to move this action quickly toward trial.

COSTS

[21] The plaintiff does not seek costs. The defendants argue that the plaintiff has been afforded an indulgence. They point out that this is the third timetable order and my order of January 20, 2014 was in the form of a “last chance” order. They submit that a costs order in favour of the unsuccessful defendants would underscore the importance of court orders.

[22] I agree that the plaintiff has been afforded a significant indulgence. However, I do not view the circumstances of this motion as justifying costs being awarded to the unsuccessful parties. I do not view the plaintiff’s conduct as deliberate or disrespectful of the court’s process. In my view, the denial of costs to the plaintiff, who was successful on this motion, will send a sufficient message about the importance of court orders. There will be no costs.

ORDER

[23] I therefore order as follows:

(a) examinations for discovery shall be completed by June 1, 2015;

(b) the requirement for mandatory mediation is hereby dispensed with;

(c) this action shall be set down for trial by September 30, 2015; and,

(d) there shall be no order for the costs of this motion.

[24] I wish to thank counsel for their excellent submissions and professional approach to this matter.

March 11, 2015

Master R.A. Muir