ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
MEHMET KARABAS
S. Oostdyk, for the Plaintiff
Plaintiff
(Moving Party)
- and -
ECONOMICAL MUTUAL INSURANCE COMPANIES
D. Inkpen, for the Defendant
Defendant
(Respondent on Motion)
HEARD: January 29, 2015
The Honourable Justice C. D. Braid
RULING ON MOTION
Nature of the Motion
1The plaintiff brings this motion for an order to restore the action to the trial list. On November 4, 2013, the court allowed the plaintiff’s request for an adjournment of the third trial date and struck the matter from the trial list. The plaintiff brought this motion almost a year after the matter had been struck from the list, and the motion was argued almost ten years after the cause of action arose.
2The plaintiff acknowledges that the delay in advancing the action was intentional but says it was done in good faith in an attempt to bring related actions together. The defendant argues that there is no reasonable explanation for the delay, that they have suffered real prejudice, and that the motion should therefore be dismissed.
Procedural History of the Action
3There is no doubt that the procedural history of this action has been protracted. It is helpful to outline the history:
i. July 5, 2005 – the plaintiff was involved in a motor vehicle accident.
ii. May 26, 2006 – the Statement of Claim for the within action was issued. The plaintiff claimed medical benefits and extra-contractual damages. The claim was later amended to add a claim for income replacement benefits.
iii. June 21, 2006 – the Statement of Defence was served.
iv. September 16, 2008 – status hearing.
v. April 2, 2009 – status hearing.
vi. August 27, 2009 – status hearing.
vii. March 18, 2010 – status hearing.
viii. April 23, 2010 – discoveries of the parties were held and undertakings were given by the plaintiff to produce documents, including bank records.
ix. September 2010 – the defendant approved an assessment for catastrophic impairment (“CAT”).
x. September 7, 2010 – status hearing.
xi. March 8, 2011 – the Trial Record was served.
xii. March 17, 2011 – status hearing.
xiii. July 4, 2012 – judicial pre-trial.
xiv. August 2012 – the plaintiff advised that no CAT assessment had taken place. The defendant stated, once again, that they approved the assessment.
xv. September 4, 2012 – the matter was scheduled on the trial sittings for the first time. The plaintiff requested an adjournment because he intended to apply for a CAT designation. Defence consented to the adjournment.
xvi. December 21, 2012 – Assignment court.
xvii. February 19, 2013 – the defence brought a motion and obtained an order to compel compliance with undertakings, including production of plaintiff bank records.
xviii. April 2, 2013 – counsel for the plaintiff advised that the CAT assessments were completed and that they were just waiting on the last report.
xix. May 6, 2013 – the matter was scheduled on the trial sittings for the second time. The plaintiff requested an adjournment to allow the defendant time to address the pending CAT application and assessments once they were complete. The defendant consented to the adjournment.
xx. July 25 and September 30, 2013 – plaintiff’s counsel wrote and requested an adjournment of the third trial date, which was scheduled for the fall trial sittings. The plaintiff stated that more time was needed to complete the CAT process. The defendant opposed the adjournment request.
xxi. October 3, 2013 – the plaintiff did not comply with the order of February 19, 2013 regarding undertakings, and the defence brought a motion for dismissal of the claim. The court ordered compliance by October 23, 2013, failing which the defendant could move without notice to have the claim dismissed.
xxii. October 24, 2013 – the plaintiff provided some bank statements, although records prior to October 2006 could not be provided as they were no longer in existence due to the passage of time and the bank’s retention policy.
xxiii. October 31, 2013 – a second Statement of Claim was issued in relation to the 2005 motor vehicle accident, which claimed different categories of damages.
xxiv. November 4, 2013 – the matter was scheduled on the trial sittings for the third time. The plaintiff sought a further adjournment of the trial. The court struck the matter from the trial list and ordered the plaintiff to pay the defendant $3,500 forthwith for costs thrown away.
xxv. December 30, 2013 – the Statement of Defence was served for the second claim.
xxvi. May 9, 2014 – six months after this action had been struck from the list, the Registrar sent a notice entitled “STATUS NOTICE: ACTION STRUCK FROM TRIAL LIST”, which stated in part:
“THIS ACTION SHALL BE DISMISSED FOR DELAY, with costs, unless within 90 days of service of this Notice,
a) the action is restored to a trial list;
b) the action is terminated by any means;
c) documents have been filed in accordance with subrule 48.14(10); or
d) a judge or case management master orders otherwise.”
xxvii. May 21, 2014 – the plaintiff wrote to the defendant asking for their consent to a motion to restore the matter to the trial list so that the matter could be put on the July 2014 Assignment Court list.
xxviii. May 29, 2014 – the defendant advised the plaintiff that it would oppose reinstating the action to the trial list. Counsel suggested that plaintiff counsel contact them to arrange a motion date.
xxix. September 15, 2014 – four months after having received the Status Notice (and almost a year after the action had been struck from the trial list), the plaintiff served this motion to restore the action to the trial list.
xxx. September 16, 2014 – status hearing.
xxxi. October 2, 2014 – status hearing; the plaintiff paid the $3,500 costs order made against them on November 4, 2013.
4It is notable that, as of the date of this motion, the plaintiff had yet not made an Application for Determination of Catastrophic Impairment and has not provided the CAT assessments that the defendant approved in 2010 and 2012. The issue has not been mediated and there is no action claiming catastrophic impairment.
5The plaintiff says that, because the two existing Statements of Claim and the potential CAT claim have overlapping witnesses and evidence, there should be a joint trial of these matters. However, the plaintiff has not taken steps to advance a CAT claim and has not brought a motion to bring the two existing actions together.
Issues
6The following issues are raised by this motion:
A. What is the test for restoring a matter to the trial list under Rule 48.11 of the Rules of Civil Procedure?
B. Has the plaintiff established an acceptable explanation for the delay?
C. If the action is allowed to proceed, would the defendant suffer real and non-compensable prejudice?
A. Test to Restore an Action to the Trial List
7Rule 48.11 states that, where an action is struck off a trial list by a judge, it shall not thereafter be placed on any trial list except with leave of a judge.
8The factors to be considered and applied under rule 48.11 are the same factors the court will consider under rule 48.14(13) at a status hearing. The requirement that leave be obtained to restore an action to the trial list under rule 48.11 is “simply another weapon in the Rule 48 judicial arsenal to promote the timely resolution of disputes, to discourage delay in civil litigation and to give the courts a significant role in reducing delays.” (see Nissar v. Toronto Transit Commission 2013 ONCA 361, [2013] O.J. No. 2553 (Ont.C.A.) at para. 26, and James v. Golden Mile Collision Ltd. [2013] O.J. No. 4944 (Ont.S.C.J.) at para. 24).
9The test to restore an action to the trial list is a two-part test: the onus is on the plaintiff to explain that there is an acceptable explanation for the delay in the litigation and that, if the action was allowed to proceed, the defendant would suffer no non-compensable prejudice. It is the plaintiff’s responsibility to move the action forward and prosecute the matter as diligently as possible (see James v. Golden Mile Collision Ltd., supra, at para. 25; and Wellwood v. Ontario Provincial Police, 2010 ONCA 386, 102 O.R. (3d) 555 at para. 48 (Ont.C.A.)).
B. Has the plaintiff established an acceptable explanation for the delay?
10The comments of Quinn J. in Sepehr Industrial Mineral Exports Co. v. Alternative Marketing Bridge Enterprises Inc. (2007) O.R. (3d) 550 (Ont.S.C.J.) and quoted with approval by the Ontario Court of Appeal in 1196158 Ontario Inc. v. 6274013 Canada Ltd. 2012 ONCA 544, [2012] O.J. No. 3877 (at para. 38) bear repeating:
Legal proceedings are not to be undertaken lightly. Plaintiffs have a responsibility to prosecute their actions diligently and in accordance with the Rules of Civil Procedure. Our legal system, sagging as it is under the weight of a heavy caseload, should not lightly tolerate anything short of that diligence.
11The plaintiff acknowledges that there have been significant delays in this case. The fact that three trial dates have been set and then adjourned is clear evidence of those delays. The plaintiff has done very little to advance this case after filing the trial record four years ago. After the matter was struck from the trial list, the plaintiff waited almost a year to bring a motion to put it back on the trial list.
12Rule 48.14(5) states that, when a status notice has been sent after a matter is struck from the trial list, the registrar shall dismiss the action for delay, with costs, 90 days after service of the status notice, unless the action has been set down for trial, terminated or other steps have been taken. Even after receiving the status notice from the registrar, the plaintiff waited four months to bring this motion. It was only by sheer luck that the matter was not dismissed by registrar since nothing was done within 90 days after the status notice was served.
13The only affidavit material filed on behalf of the plaintiff was that of Earl Murtha, a lawyer at the plaintiff’s law firm. Mr. Murtha bases the content of his affidavit on a review of the file. Unfortunately, the affidavit contains inaccuracies, some of which are evident by simply reading the appendices to the affidavit.
14In this case, there is no affidavit from the plaintiff personally to explain the delays in the litigation or to demonstrate that he has actively pursued the prosecution of the action. There is no evidence of the plaintiff’s personal intentions with respect to advancing the lawsuit.
15Mr. Murtha suggests that the plaintiff intends to pursue the prospect of a companion action in relation to the designation of catastrophic impairment, and that the plaintiff wishes to have the matters tried together or one after the other. No reason was provided regarding the failure to obtain the CAT assessments, to commence an action related to those assessments or to otherwise move to join actions together. Although the plaintiff wishes this court to find that the CAT assessment issue is an acceptable reason for the delay in this action, there is no evidence to explain the delays in obtaining those assessments and the failure of the plaintiff to advance that potential claim in any reasonable fashion.
16Even if this court granted the relief sought and restored this matter to the trial list, the plaintiff concedes that they would not be ready to proceed at the next sittings because of the need to assess the catastrophic injury designation and their wish to join the trials together. The plaintiff would seek a further adjournment of the trial and there is no certainty as to when this matter would be ready for trial.
17During submissions, counsel for the plaintiff asked, as an alternative, that the action be allowed to proceed and that the court impose a timetable instead of returning the matter to the trial list. There is no formal motion seeking this relief and the proposed timetable is unclear. Even if this court were to consider setting a timetable, it would be impossible to do so as the plaintiff is not in a position to state whether he has a viable claim for catastrophic impairment and whether that claim will proceed. In light of the fact that the plaintiff has not even obtained the CAT assessments to date, it is unrealistic and inappropriate to further delay this action until such time as decisions can be made about a further claim that may not even materialize.
18As a side note, the plaintiff has advanced an argument that the actions should be tried together and has provided case law to support this position. However, there is no motion before me for an order that the actions be tried together or one after another. This argument is not helpful to the determination of whether the plaintiff should obtain the relief that they seek in their motion, which is to return the first action to the trial list.
19The plaintiff has deliberately and inexplicably delayed this action for the stated purpose of joining this action with other another action, but has failed to take appropriate steps to even determine conclusively whether any such action will be brought. For all of these reasons, I find that the plaintiff has not provided an acceptable explanation for the delay in this action.
C. If the action is allowed to proceed, would the defendant suffer non-compensable prejudice?
20On a motion for dismissal of an action for delay, it is presumed that memories fade over time, and an inordinate delay after the cause of action arose or after the passage of limitation period gives rise to a presumption of prejudice. If the presumption is rebutted, the action may still be dismissed if the defendant leads convincing evidence of actual prejudice; for example, the inability to locate a witness or the loss of important evidence (see Armstrong v. McCall 2006 CanLII 17248 (ON CA), [2006] O.J. No. 2055 (Ont.C.A.) at para. 11-12). Although the defendant has not brought a formal motion for dismissal for delay in this case, the analysis regarding presumed and actual prejudice is relevant to the determination of whether this action should be allowed to proceed.
21The defendant filed a Responding motion record containing the affidavit of Lisa Armstrong, counsel for the defendant. The affidavit sets out the chronology of the action and states, in part, that there are missing bank records of the plaintiff and that two defence medical witnesses cannot be located. The plaintiff did not cross-examine on this affidavit, and therefore this evidence of real prejudice is unchallenged. The following is a summary of the nature of the prejudice suffered by the defence:
a. Missing bank records of the plaintiff
22The plaintiff was self-employed at the time of the accident in 2005. The bank records are therefore significant in this case to provide valid accounting to establish the income replacement benefits claim.
23The defendant wrote to the plaintiff seeking bank records as early as September 15, 2005. In 2005 and 2006, the defendant’s counsel and their accountant sent 14 letters to the plaintiff seeking the plaintiff bank records. At examinations for discovery in April 2010, the plaintiff undertook to provide bank statements. The defendant had to bring two motions to finally compel the undertakings and production of bank records.
24On October 1, 2013, the defendant was advised that, due to the bank retention policy, the bank records prior to October 2006 no longer exist.
25I find that the defendant was extremely diligent and persistent in seeking the records from the plaintiff, and it is a direct result of the plaintiff’s inaction that the records are no longer available. However, the fact that the bank records no longer exist is probably detrimental to both parties. While the delay in providing the records is consistent with the manner in which the plaintiff has pursued this case, the fact that the bank records no longer exist is a neutral factor in assessing prejudice.
b. Missing medical witnesses
26Income replacement benefits were paid by the defendant immediately following the accident but were then terminated on March 24, 2006, based on the decision of a multi-disciplinary team of four insurance examination assessors.
27Neurologist Dr. Ronald MacDonald and psychologist Dr. Cheryl Gillin-Garling were two of the insurance examination assessors who assessed the plaintiff in 2005. These assessors are no longer practicing and their whereabouts are unknown. It is undisputed that they cannot be located. The missing defence witnesses had interaction with the plaintiff and observed how any physical or mental impairment might have affected his ability to return to work at that time. According to the defendant, these witnesses would say that the plaintiff did not suffer a substantial inability to return to work from a neurological and psychological perspective.
28The plaintiff argues that the defendant’s own denial of benefits did not make reference to the now-missing medical witnesses. The plaintiff says that these two medical witnesses are not important and there is no substantial risk of an unfair trial as a result. Even though the plaintiff attempts to advance this argument, there was no cross-examination on the affidavit which states that these were important defence witnesses. It is worth noting that the defence trial witness list that was prepared at a judicial pretrial in 2012 includes the names of these two missing witnesses.
29The plaintiff also argues that the defendant has the reports and medical records of the missing witnesses, and therefore does not need the missing witnesses to proceed to trial. However, the plaintiff concedes that these documents are commonly used to refresh memory, which is not useful if the witnesses cannot be located. The plaintiff would not be prepared to concede that the documents would be admissible for the truth of their contents. Apart from having the witnesses attend to give viva voce evidence or by factual admission as to the contents, the reports and medical records are not admissible into evidence.
30I find that the two missing witnesses are important to the defence. The fact that the defendant cannot locate two of their witnesses establishes real prejudice that cannot be corrected with any monetary reward.
Disposition
31The overall delay since the commencement of the action has been inordinate and the plaintiff has not provided a reasonable explanation or excuse for the delay. The plaintiff has deliberately delayed this action because of a stated wish to have it tried with another action or actions, but has failed to act diligently to advance the other action(s) or to seek to have them brought together. Two defence witnesses cannot be located and therefore the defendant has established actual prejudice.
32For all these reasons, the plaintiff’s motion to restore this action to the trial list is dismissed. This matter is clearly not ready for trial and should not be returned to the trial list.
33In the factum and affidavit in support of the defence position on this motion, the defendant has asked that the action be dismissed for delay. However, the defendant has not brought a motion seeking that relief. I therefore decline to make an order for dismissal of the action.
Costs
34In the event that counsel cannot agree as to costs, they are directed to provide written submissions as to costs. The submissions shall be no longer than two typed pages, double-spaced, in addition to any relevant offers or draft bill of costs. The defendant shall provide cost submissions by April 15, 2015 and the plaintiff shall provide any response by April 30, 2015.
Braid J.
Released: April 1, 2015
CITATION: Karabas v. Economical Mutual Insurance, 2015 ONSC 2115
COURT FILE NO.: 06-24706
DATE: 2015-04-01
ONTARIO
SUPERIOR COURT OF JUSTICE
Braid J.
B E T W E E N:
Mehmet Karabas
Plaintiff
(Moving Party)
- and –
Economical Mutual Insurance Companies
Defendant
(Respondent on Motion)
RULING ON MOTION
Braid, J.
Released: April 1, 2015```