2015 ONSC 206
COURT FILE NO.: 09-CV-390121
MOTION HEARD: August 18, 2014
REASONS RELEASED: 20150112
SUPERIOR COURT OF JUSTICE – ONTARIO
RE:
Jason Humphrey
Plaintiff
- and-
Screemers Inc.
Defendants
Toronto Police Services Board ,Star Security Inc., Modu-Loc Fence Rentals Ltd.,
RCM Technologies Canada Corp. et al
Third Parties
BEFORE: Master D. Short
COUNSEL: William G. Scott F: (416) 869-0271
-for moving plaintiff
M. Katyal F: (416) 364-7207
-for defendant Screemers Inc.
Paul Sharp F: (416) 682-2826
-for third party Toronto
Police Services Board
T. Hartley F: (416) 860-0003
-for third party Modu-Luc
P. Palleschi F: (416) 595-8695
-for third party RCM Technologies
HEARD: August 18, 2014
RELEASED: January 12, 2015
Reasons for Decision
I. Overview
[1] It was Halloween in the year 2003 when the plaintiff, Jason Humphrey (“Jason”), then aged 16 attended at exhibition place in Toronto where the defendant was involved in the operation of a “Scream Park” and/or “Haunted House”.
[2] His statement of claim asserts that prior to being allowed into the defendant’s premises; he was subjected to a weapons search. Later that evening,“[w]hile on the premises, he was suddenly and without warning shot, which caused serious and lasting permanent personal injuries”.
[3] His action is against the operator of the event and is based on an allegation of negligence and a failure to ensure that the defendant’s premises were adequately sufficiently and reasonably supervised and free of weapons. The claim asserts that the defendant permitted the premises to be, or to remain a danger to the plaintiff in that they did not ensure the safety a patron such as the plaintiff from unruly or violent patrons. In particular, once an altercation had begun, it is claimed that “there were insufficient employees, staff or contractors available to observe it and react so as to avoid or halt of the assault of the plaintiff.”
[4] As a result of the incident the plaintiff suffered serious injuries from a gunshot wound, including the loss of a kidney, a fractured spine and injuries to his neck, back, arms and legs and a straining, spraining and tearing of the muscles, tendons, ligaments, nerves and vessels throughout his body.
[5] The Plaintiff’s action flowing from these events was dismissed by the Registrar for delay on August 7, 2012. The present motion seeks to set aside that dismissal.
[6] One of the possible issues on the motion relates to any available limitations defences.
II. Actions by Minors and Transition
[7] Jason was born March 21 1987. The shooting occurred October 31, 2003, when he 16 years of age. Ontario’s Limitations Act, 2002 came into force on January 1, 2004. Jason turned 18 on March 21, 2005.
[8] Section 6 of the Limitations Act, provides that the limitation period established by section 4 of that Act does not run during any time in which the person with the claim,
(a) is a minor; and
(b) is not represented by a litigation guardian in relation to the claim. 24.(1)
[9] Prior to 2004 the existing limitation period with respect to most claims was six years. Section 5 of the Act addresses transition issues:
(1)…"former limitation period" means the limitation period that applied in respect of the claim before January 1, 2004.
Application
(2) This section applies to claims based on acts or omissions that took place before January 1, 2004 and in respect of which no proceeding has been commenced before that date.
Former limitation period expired
(3) If the former limitation period expired before January 1, 2004, no proceeding shall be commenced in respect of the claim.
Former limitation period unexpired
(4) If the former limitation period did not expire before January 1, 2004 and if no limitation period under this Act would apply were the claim based on an act or omission that took place on or after that date, there is no limitation period.
(5) If the former limitation period did not expire before January 1, 2004 and if a limitation period under this Act would apply were the claim based on an act or omission that took place on or after that date, the following rules apply:
If the claim was not discovered before January 1, 2004, this Act applies as if the act or omission had taken place on that date.
If the claim was discovered before January 1, 2004, the former limitation period applies.
[10] No limitation defence has been raised by any of the defendants. As a result of the interaction of these sections. Jason had six years from his 18th birthday to commence an action,
[11] In any event the plaintiff’s Statement of Claim was issued on October 29, 2009, two days before the sixth anniversary of his being shot.
[12] The defendant Corporation then proceeded to issue third-party claims against a number of entities, including paid duty officers who were members of the Toronto Police Service, as well as the Toronto Police Services Board, the security company contracted to provide security for services for the premises and the fence supplier who had a contract “to provide fencing services, including the construction of the fence surrounding the premises.
[13] An additional third party named was identified as “John Doe”, and said to have “attended the premises on the night of the event and, at all material times, allowed for the discharge of a firearm causing injury to the plaintiff. It would appear that as of the date of the argument of this motion, no charges have been laid against the assailant, nor has he been identified.
[14] Not surprisingly, a series of third-party defences and counterclaims were issued and served by the various parties. Originally, the third party claim had been asserted against the “Toronto Police Service”. It was necessary to amend the various pleadings to reflect the proper name of the employer of the paid duty officers as the Toronto Police Services Board.
[15] The Third-Party defence and cross-claim ultimately issued on behalf of the Toronto Police Services Board bears a date of June 1, 2012.
[16] While the defendants were sorting out the claims amongst themselves. The plaintiff was proceeding with a claim before the Criminal Injuries Compensation Board and receiving ongoing medical treatment.
[17] Ultimately Jason was awarded the maximum allowable sum of $25,000 by the Criminal Injuries Compensation Board
[18] As well he has incurred OHIP covered medical expenses which have accumulated to approximately $29,000. As a consequence his counsel advised all parties these payments have resulted in subrogated claims being asserted by both entities against the defendant and indirectly the third parties.
[19] Later in these reasons, I will deal in greater detail with “context” in cases such as this. I note at this stage that it seems to me a factor to be considered in dealing with the setting aside of a Registrar’s Dismissal may be the potential impact on taxpayers generally where any hope recovery on of their subrogated claim will be lost if I refuse to reinstate the action.
III. Incapacity of Counsel
[20] The issue of the Ontario Reports published the week this motion was argued contains an announcement of a pending webcast sponsored by the Law Society of Upper Canada on the subject of “Mental Health In the Workplace: Challenges and Solutions”. The program description reads in part:
One in five Canadians will suffer from a mental illness in their lifetime. Clearly, mental health problems are a concern in our workplaces. Learn about the nature and scope of the most common conditions, and how mental illness can disrupt the ability of employees to engage fully and effectively. Our presenters are legal and mental health experts who address general misconceptions about mental health, as well as how to remove barriers to workplace resolutions and best practices for a range of sensitive issues.
[21] This case presents one such sensitive issue.
[22] The parties scheduled examinations for discovery for January 2013 in May 2012. While the impetus for scheduling the discoveries may have been at the behest of one of the third parties, nevertheless the counsel for the plaintiff does not appear to have in any way impeded the scheduling of the discoveries. At that earlier point a member of the firm (“Lawyer 1”) appears to have been assigned carriage of the file. It does not seem much activity was being initiated by the plaintiff at that stage.
[23] It appears that not one of the parties in this litigation have delivered an affidavit of documents to this point in time.
IV. Status Notice
[24] The court records indicate that in the period between the scheduling of, and the scheduled date of, the discoveries a Status Notice was issued in April 2012 in accord with rule 48.14. The rule provides for consequences flowing from service of the Status Notice. Here the plaintiff asserts no notice was received.
[25] The material filed on behalf of the third party, fence supplier indicates that their counsel received the Status Notice on May 1, 2012.
[26] The lawyer with carriage for the plaintiff deposes that the Status Notice was not contained in the firm’s files and he was not aware of one having been issued.
[27] Moreover he does not acknowledge receiving the Order dismissing the action for delay. That Order was issued on August 7, 2012.
[28] By letter dated November 2, 2012, counsel for the defendant wrote to all counsel, sending a brief letter that read:
“Attached please find a copy of the registrar’s dismissal order dated August 7, 2012. As solicitor [Lawyer 1] has not done anything to result store the matter, I suggest that the examinations for discovery scheduled for January, 2013 be cancelled.”
[29] There then followed a number of letters which seemed to have been ignored by Lawyer 1 (if he still had carriage of the matter). Ultimately, on June 21, 2013 counsel for the fence company wrote to all counsel as follows:
“There has been no correspondence from [Lawyer 1] since the action was dismissed. In fact, there is been no correspondence, from [Lawyer 1] under since receipt of the status notice dated April 27, 2012. On December 14, 2012, [Lawyer 1] advised that the plaintiff was going to bring a motion to restore the action. I have obtained the case history from the court and no such motion has ever been scheduled. It does not appear that the plaintiff has any true intention of continuing with his action. I am closing my file.”
[30] On August 23, 2013 an additional letter was sent addressed Lawyer 1’s attention by counsel for the defendant. That letter read:
“This letter follows my voicemail message to you on August 22, 2013. I would appreciate hearing from you as to whether or not your client intends to reinstate the action. There is a live third party claim and I would like to seek to obtain an order for a with costs dismissal of the third-party action, considering that the main action has been dismissed for some time now. I am, however, hesitant to do so in light of your previous suggestion that you will be proceeding with a motion to set aside the registrar’s dismissal. If, in fact, you intend to do so, can you please proceed with your motion. If your client does not intend to do so, please advise.”
[31] The affidavit filed on behalf of the defendant indicates:
“I heard nothing from the plaintiff’s lawyer, or anyone from his firm, until I received an email on October 31, 2013 from [Lawyer 2] advising that a motion had been scheduled for December 13, 2013…”
[32] That affidavit continues by indicating that on November 13, 2013 Ms. Bruder spoke to the senior counsel at the plaintiff’s law firm who explained that the counsel with carriage “had medical issues which was the reason for the delay, but was vague on the particulars.
[33] On November 18, she wrote to all parties advising that they that her client was not prepared to consent to an order setting aside the dismissal order and to request a copy of the motion record. The motion record was delivered on December 5, 2013 and had a return date 8 days later of December 13, 2013. Not surprisingly, not all counsel were available and the motion was adjourned on consent to June 6, 2014 to allow responding materials to be filed.
[34] A supplementary affidavit was then served on May 29, 2014, which gave rise to the affidavit of Ms. Bruder dated June 2. Seeking yet again, an adjournment in light of the additional materials filed. I granted that adjournment on June 6.
[35] When the matter came before me on June 6. I was concerned that the counsel with carriage of the action was planning to argue the motion and that in light of a substantial motion record received from counsel for the fence supplier. I granted that a further adjournment to August 18 for a long motion, which would be peremptory to the plaintiff.
[36] I established a timetable, which indicated that there would be a July 14, 2014 deadline for service of any further affidavits by the plaintiff. I also set a July 31 deadline for the plaintiff’s written submissions.
[37] On the return of the motion, an agent for the plaintiff’s counsel of record appeared and sought to file an affidavit from the plaintiff at a date after the cut off established by my earlier order. I then was satisfied that the material filed by the agent indicates that they were not aware of the deadline when they took over the file and again I granted an indulgence to allow the full facts to be before me. None of the other counsel was seeking an adjournment to cross-examine on the new material and the matter proceeded with the personal affidavit of the plaintiff, forming part of the record.
[38] That affidavit is brief and reads in part:
:”3. It has always been my intention to proceed with this case
At the time of the shooting, I was 16 years old, born March 21, 1987.
After retaining [counsel], I left my claim in their hands and did not see the need to follow up with them on a regular basis to inquire about the status of my action. However, from time to time I was in contact with them, and I understood that my action was proceeding in the normal course.
I have been provided with the order dismissing action for delay dated August 7, 2012…
I have instructed my lawyers to proceed with a Motion to set the Order aside.
None of my doctors or healthcare providers have ever advised me that any of my records were going to be destroyed, nor have I been advised that any of my medical records have been destroyed.”
[39] This is a very sparse affidavit and really does not convey very much information that advances my evaluation.
[40] Of more assistance was the supplementary affidavit of the solicitor with carriage which reads in part:
In respect of the circumstances surrounding the dismissal of the action, at the time the Order was issued on or about August 7, 2012, I was in the middle of a personal illness that affected my ability to attend the matter in a timely fashion. I was suffering from (at the time). as yet undiagnosed and serious depression and anxiety, that seriously impacted my ability to move the action forward. My ability to timetable matters (and to adhere to timetables) and to initiate proactive steps on litigation was adversely affected, and this illness continued to affect me through to approximately June 2013, at which time it became acute and was recognized undiagnosed and treatment initiated. Until that time I was completely unaware of what I was going through with my health and was unaware of the effect the illness was having on my abilities.
It was only at that time, in June 2013, and in the months following, with the assistance of treatment and with the assistance of other counsel in my office, that the original motion date of December 13, 2013 was booked.
Accordingly, I verily believe that any delay was occasioned solely as a result of my personal health issues, and to be entirely frank, I was unaware of both the nature of what I was suffering from, and its effect on my abilities, until June 2013, and I was unaware that the action had even been dismissed administratively. Even if I had been advised of the dismissal contemporaneously, I was unable, due to my health, to take the pro-active steps that one would expect to be taken.”
[41] It would seem grossly unfair to hold the the plaintiff responsible for the dismissal of his action in such circumstances. However I need to consider the extent of discretion available to me in the overall context of this action.
[42] This is particularly the case where I AM NOT SATISFIED THAT THE Defendant and Third Parties have demonstrated a meaningful level of prejudice that might flow from the restoration of this action.
V. Case Law
[43] In reasons delivered in October of 2014 while this matter was under reserve, I addressed my views on the applicable legal issues raised by counsel before me on this matter. Rather than repeat that analysis I have reproduced a portion of my reasons in Elkhouli v. Senathirajah et al, 2014 ONSC 6140 in Schedule “A” to this decision and adopt that reasoning in this case.
[44] In particular I continue to agree with Master Muir’s analysis in Bagus v. Telesford, 2014 ONSC 3512.
[45] More recently Associate Chief Justice F.N. Marrocco sitting on the Divisional Court considered matters similar to this case in Dang v. Nguyen, 2014 ONSC 7150, released December 10, 2014.
[46] While I do no rely on his analysis in that case which was decided after this matter was argued I am comforted that the decision would seem to reflect a similar approach to cases such as this. Particularly in light of the recent Rules amendments.
[47] The headnote for Dang reads:
Appeal by the plaintiff from a Master's order dismissing her motion to set aside the Registrar's dismissal of her action as abandoned on the ground that the limitation period had expired. The plaintiff was injured in a 2009 motor vehicle accident. In 2011 she issued a statement of claim. Nothing further was done in the action until she retained counsel in 2013. The plaintiff was unaware that her action had been dismissed in 2012. On the motion before the Master, plaintiff's counsel swore an affidavit indicating that the dismissal order occurred unbeknownst to the plaintiff. The Master ruled that this statement had no evidentiary value.
HELD: Appeal allowed. It was a palpable and overriding error to conclude without reasons that counsel's uncontradicted and unchallenged affidavit evidence had no evidentiary value. In deciding whether to set aside the order of the Registrar, the Master was required to consider whether the Registrar gave the applicant 45 days’ notice in the appropriate form of the Registrar's intention to dismiss the action as abandoned. It was a palpable and overriding error to find that the Registrar properly concluded this condition was satisfied in the absence of such evidence. It was also a palpable and overriding error to conclude without giving reasons that counsel's uncontradicted and unchallenged affidavit evidence was not capable of proving that no prejudice arose from the delay insofar as witnesses and medical evidence were concerned.
VI. Transition
[48] There is also a transition rule for existing cases under the new rules that take effect after December 31st.The transition rule applies to any current action that would have been subject to the existing Rule 48 and has not already been dismissed or in which a status hearing has not already been scheduled. In those cases, the action will be dismissed on the later of the fifth anniversary of the commencement of the action or January 1, 2017.
[49] To avoid dismissal under the new rules a party may either: a) file a consent timetable at least 30 days prior to the expiry of the five years extending the time for up to 2 years OR b) may “bring a motion for a status hearing” on the return of which the plaintiff must show cause why the action should not be dismissed.
[50] I am reluctant to force the defendants to endure what could possibly be no further activity for another two years. Applying proportionality and attempting to balance the needs and interests of all the parties, Subject to any further status hearing held under the new rule I am directing that this action be set down for trial on or before December 31, 2015, failing which the action shall again be dismissed.
VII. Disposition
[51] In the result an Order will go
a) setting aside the Registrar’s Order dismissing this action as abandoned dated August 7, 2012;
b) awarding costs of this motion to the defendants as outlined below; and
c) extending the set down date for trial to December 31, 2015.
[52] This is not a case where the client ought not to bear full cost of the repair. Given the history of this matter it is understandable that the respondents put the moving party to the proof of his case.
[53] Four teams of responding counsel were involved with varying degrees of involvement. Applying proportionality I am awarding a lump sum of $10000 inclusive of all taxes and disbursements to be allocated amongst counsel as they agree and failing agreement equally.
[54] I have little doubt that counsel for the plaintiff will see this sum paid from the appropriate pocket and I requiring payment within 90 days.
[55] Further, if the parties are unable to agree on a case timetable within thirty days I will impose one. If that becomes necessary I will hold a telephone case conference on a date to be scheduled through my Assistant Trial Co-ordinator
Master D. E. Short
DS/ R.75
Schedule “A”
In Elkhouli v. Senathirajah et al, ,2014 ONSC 6140 which I heard on October 16,2014 and released reasons containing the following extracts later that month, I addressed the applicable law as follows:
III. Applicable law
[25] The consequences of the 180 day deadline for having an action dismissed as abandoned and the two year trial set down requirement have fluctuated over the history of these relatively recent provisions.
[26] The Masters of the Court and its Judges have each brought their own approaches to the so-called “Reid factors” established by my colleague Master Dash. Appellate courts have provided us with guidance, which has ultimately allowed a fair amount of discretion, to be placed in the hands of those dealing with Registrar’s Dismissals at first instance.
[27] My colleague Master Muir delivered a decision in June of this year, in Bagus v. Telesford, 2014 ONSC 3512 , which was very helpful in my coming to a conclusion in this case. I adopt his analysis of the appropriate tests as set out in Bagus.
[28] There he was (i) not satisfied that there was an appropriate explanation of the litigation delay. Further, he was (ii) not satisfied as to the explanation of inadvertence in missing the deadline and lastly (iii). he determined the motion was not brought promptly. Normally, three strikes and you are out. But under the Reid factors. There is a fourth, namely “no prejudice to the defendant”.
[29] As well, the Court of Appeal in the cases that guide my approach has made it clear that a plaintiff need not satisfy all four of the Reid factors, but rather a contextual approach is required. The key point is that the court is to consider and weigh all relevant factors to determine the order that is “just” in the circumstances of each particular case.
[30] In this case, the plaintiff’s affidavits were not cross-examined upon, and there is at least some assertion from the plaintiff’s side directed towards rebutting the presumption of prejudice, now that the limitation period (which may have expired before the action even commenced) has clearly expired.
[31] Prejudice to a defendant is not prejudice inherent in facing an action the first place but prejudice in reviving the action after it is been dismissed as a result of the plaintiff’s delay or as a result of steps taken following the dismissal of the action. Here I was not satisfied that any such prejudice was demonstrated by any of the defendants.
IV. Contextual considerations
[35] I note from reading, Bagus that the plaintiff law firm in that case was the same firm as was retained by the plaintiff in the case before me.
[36] A consumer of litigation services is entitled to expect that his action will be conducted professionally, expeditiously and in compliance with the appropriate rules of civil litigation.
[37] In my view such a consumer ought not to be forced to seek new counsel to pursue possible recovery by way of an indemnity claim against his counsel. Such an action will first require the proof of the likely liability of the defendants in the original action without having the normal rights of discovery and production, from the others involved in the accident. In addition, more costs and court time will be consumed in addressing the questions of whether or not the lawyers ought to be responsible for the losses suffered as a result of the apparent deleterious conduct of that action.
[38] While there is case law that supports the view that an order setting aside a Registrar’s Dismissal ought not to be made where the cause of action against the plaintiff’s counsel might be available; I do not interpret the guidance of the various members of the Court of Appeal as requiring that a plaintiff in a case such as this should be required to only look to recovery based upon the potential liability of their counsel.
V. A Changing Environment
[39] Since, Master Muir delivered his reasons in Bagus the Rules Committee has turned its attention to the problems inherent with the existing deadlines with respect to the conducting of civil litigation. It is a rare Master’s Regular Motions that does not have at least one motion relating to setting aside a Registrar’s Dismissal. Large amounts of lawyers’ time, clients’ fees and available court time were consumed. Ultimately reams of paper in motion records often resulted in a consent order. It was recognized that something had to be done to remedy this situation.
[40] I now come to decide this decision in the shadow of a complete reworking of the provisions of the rules in this area.
VI. Pending Rule Changes
[41] Rule 1.04 provides overall guidance in dealing with the application of the Rules:
1.04 (1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.
Proportionality
(1.1) In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.
Matters Not Provided For
(2) Where matters are not provided for in these rules, the practice shall be determined by analogy to them.
[42] I have looked to these provisions as informing an appropriate approach to the issues before me.
[43] Currently Rule 48.15 provides for dismissal of actions that have not been defended within 6 months of commencement. Rule 48.14 provides that a status notice will be issued for defended actions that have not been set down for trial within two years.
[44] As of January 1st, 2015, Rule 48.15 is repealed entirely. Thus within 90 days there will no longer be a deemed abandonment in the first five years of action
[45] Rule 48.14 is also repealed and replaced with a simpler rule with longer time frames. Under the new Rule each Statement of Claim in the boilerplate portion at the outset of that document, will contain a notice that the action will be dismissed 5 years after it is commenced unless it has been set down for trial or otherwise disposed of or there is an order extending the time. The dismissal will be automatic with no further notice.
[46] This action was commenced on December 16th 2009. If the new rule had applied throughout its existence, the action would be subject to being dismissed on December 16, 2014, being the end of the five year period now contemplated by the amended rule.
[47] I appreciate that there are transition provisions with respect to actions commenced under the previous timeframe. Nevertheless an action that would have been subject to dismissal on January 2, 2015 for failure to set the action down for trial under the old rule, now has a further three years before anything happens.
[48] In my view proportionality dictates that this factor be taken into account as part of my contextual approach in determining the appropriate disposition of motions such as the one presently before me.
[49] Given that there is nothing before me that indicates the delay was in any way occasioned by the conduct of the plaintiff personally, and nothing before me to contradict his evidence that he left his claim in his counsel’s “hands and did not see the need to follow up with them on a regular basis to inquire about the status of my action”.
[50] His uncontradicted evidence asserts:
“However, from time to time I was in contact with the Romano Law Firm and understood that my action was proceeding in the normal course.”
[51] In all the circumstances, I am satisfied that the registrar’s dismissal ought to be set aside at this point in time. I come to this conclusion notwithstanding that it appears that the client had much to complain about if he had known what to expect in a properly run personal injury action in Ontario.