SUPERIOR COURT OF JUSTICE – ONTARIO
MOHAMMAD ALAM v. BRIMELL MOTORS LTD.
CV-10-396824
2015 ONSC 2320
HEARD: April 9, 2015
COUNSEL: Jennifer W. P. Wu for the plaintiff W. Mark Fryer for the defendant
ENDORSEMENT
Master R.A. Muir –
[1] This endorsement is in relation to a contested status hearing at which the plaintiff was required to show cause why his action should not be dismissed for delay pursuant to former Rule 48.14(13) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”).
[2] This is an action in which the plaintiff appears to seek damages for wrongful dismissal and defamation.
[3] At the outset of the argument of this status hearing, the plaintiff’s counsel sought to rely on an affidavit of Alana Warlow that she had inadvertently failed to provide to the defendant or the court. The Warlow affidavit was sworn April 8, 2015 and was a reply affidavit to the defendant’s affidavit sworn April 7, 2015. In view of the serious nature of this hearing and the fact that the defendant’s affidavit had only been served two days prior to this hearing,[^1] I decided that the Warlow affidavit would accepted for filing. However, I did advise the parties that this matter could be adjourned in the event that the defendant wished to respond to the Warlow affidavit. The defendant elected to proceed with the argument of the status hearing but did object to paragraphs 5 and 6 of the Warlow affidavit. Those paragraphs deal with the evidence of a potential trial witness, Laura Moon. Ms. Warlow is a law clerk employed by the lawyers for the plaintiff. In those paragraphs she provides her “opinion” about certain statements that may have been made by Ms. Moon in the past. Ms. Warlow’s “opinion” regarding Ms. Moon’s past statements is improper and simply not relevant to the issues on this hearing. Those paragraphs of her affidavit have not been considered.
[4] The former provisions of Rule 48.14(2) provided that the court would issue a status notice if an action that had been struck off the trial list is not restored to the trial list within 180 days of being struck from the list. The Rules were amended as of January 1, 2015 to provide for an automatic dismissal of an action after a period of two years has passed from the date the action was struck from the list. However, the new Rule 48.14(12) provides that where a status hearing is scheduled but not held before January 1, 2015, the provisions of the former Rule shall apply.
[5] The former Rule 48.14(13) provides as follows:
48.14(13) At the status hearing, the plaintiff shall show cause why the action should not be dismissed for delay and,
(a) if the presiding judge or case management master is satisfied that the action should proceed, the judge or case management master may,
(i) set time periods for the completion of the remaining steps necessary to have the action placed on or restored to a trial list and order that it be placed on or restored to a trial list within a specified time,
(ii) adjourn the status hearing to a specified date on such terms as are just, or
(iii) if the action is an action to which Rule 77 may apply under rule 77.02, assign the action for case management under that Rule, subject to the direction of the regional senior judge,
(iv) make such other order as is just; or
(b) if the presiding judge or case management master is not satisfied that the action should proceed, the judge or case management master may dismiss the action for delay.
[6] The applicable test to be applied on a contested status hearing is set out in the decision of the Court of Appeal in Khan v. Sun Life Assurance Co. Of Canada, 2011 ONCA 650 at paragraph 1:
[T]he appellant [plaintiff] bore the burden of demonstrating that there was an acceptable explanation for the involved litigation delay and that, if the action were allowed to proceed, the respondent [defendant] would suffer no non-compensable prejudice.
[7] The test is conjunctive. The presiding judge or case management master may still dismiss the plaintiff’s action even in situations where the delay has been satisfactorily explained or the plaintiff has demonstrated that the defendant would not be prejudiced. In 1196158 Ontario Inc. v. 6274013 Canada Ltd., 2012 ONCA 544, the Court of Appeal described the Khan test as follows at paragraph 32:
The test is conjunctive, not disjunctive. Even if the plaintiff can provide a satisfactory explanation for the delay, the action will be dismissed if there would be prejudice to the defendant. And if the plaintiff is not able to provide a satisfactory explanation for the delay, it is still open to the judge to dismiss the action, even if there is no proof of actual prejudice to the defendant.
[8] Rule 48.14(13)(b) provides that the presiding judicial officer at a status hearing may dismiss the action for delay. The Court of Appeal has held that it is “open to the judge to dismiss the action” [emphasis added]. The court’s decision is therefore a discretionary one. In applying the test, the court will almost invariably engage in a weighing of all relevant factors in order to reach a just result. See Kara v. Arnold, 2014 ONCA 871 at paragraph 13.
[9] These are the factors and principles I have followed in determining the issues before me on this status hearing. Having done so, I have determined that the plaintiff’s action should be allowed to continue.
[10] With respect to the first part of the test, I am satisfied, on balance, that the plaintiff has provided an acceptable explanation for the litigation delay. This action was started on February 10, 2010. The plaintiff was acting for himself until August 2014. Between February 2010 and September 2012 much was done to advance this action. Pleadings were exchanged, affidavits of documents were served, an examination for discovery was held (the transcript is available) and a mediation session took place. On September 4, 2012, the plaintiff filed his trial record.
[11] It appears that the trial office sent a certification form to the parties in January 2013. However, the plaintiff’s evidence is that he did not receive the form. As the form was never completed, this action was struck from the trial list on December 3, 2013. A status notice was then issued by the court on June 4, 2014 in accordance with former Rule 48.14(2). The plaintiff then retained his current lawyer who requisitioned a status hearing. The status hearing was adjourned on several occasions and was ultimately heard by me on April 9, 2015.
[12] I see no unexplained delay between February 2010 and September 2012. All of the steps necessary to have this action ready for trial had taken place and this action was set down for trial. There was a period of delay between the issuance of the certification form in January 2013 and the status hearing requisition in September 2014. However, it is my view that this delay has been adequately explained. The plaintiff’s evidence is that he did not receive the certification form despite being told by court staff that he would receive such notice. The plaintiff was self-represented at the time and would not have a thorough knowledge of the local Toronto practices. It was reasonable for him to rely on the information provided by the court staff.
[13] In addition, the plaintiff was suffering from very serious health issues during this time period. He was also distracted by several family illnesses and the loss of three members of his immediate family. The only medical evidence before the court is from the plaintiff’s family physician and confirms that the plaintiff has had severe coronary problems since 2011. The defendant argued that this evidence should be given little weight. I do not agree. The evidence is in the form of an affidavit directly from the doctor. In my view, the plaintiff’s family doctor of approximately eight years would be fully familiar with the plaintiff’s medical history and condition. The medical documents placed in evidence on this status hearing also support the seriousness of the plaintiff’s condition.
[14] I have considered the defendant’s evidence that the plaintiff has been working, attending mosque and dealing with other litigation in recent years. However, I accept the plaintiff’s explanation that he was required to respond to the other litigation, and to make that a priority, due to his position as an officer and director of the Islamic Foundation of Toronto. I also accept that the plaintiff was unable to effectively deal with this litigation, as a self-represented party, given the health issues encountered by him and certain family members, along with the necessity of working full time.
[15] Finally, I do not view the period of delay between January 2013 and September 2014 as particularly significant in the circumstances. This is obviously not a situation where a plaintiff has done nothing to advance his claim over long periods of time. The plaintiff is now represented by counsel and is in a position to move forward without further delay.
[16] I am also of the view that the plaintiff has met his onus with respect to prejudice. Documents have been preserved and exchanged. Examinations for discovery have taken place. The defendant suggested that certain key witnesses are unavailable. However, the defendant’s evidence in this respect amounts to simply stating that those witnesses are no longer employed by the defendant and the defendant has lost touch with them. The mere fact that certain witnesses are no longer employed by the defendant is not a sufficient basis for inferring prejudice. Moreover, I am far from satisfied that the defendant has made significant efforts to locate these witnesses given the ease with which the plaintiff was able to locate the allegedly missing witnesses Laura Moon and Syed Ahmed. I note that no specifics of the defendant’s search efforts were provided as part of its evidence.
[17] I am therefore not prepared to dismiss this action. The plaintiff is hereby granted leave to restore this action to the trial list.
[18] The plaintiff has been successful. However, the plaintiff has also been granted an indulgence by the court. The plaintiff has been self-represented for most of this proceeding but that does not mean that he is not required to comply with the Rules. I have also considered the late service of the plaintiff’s evidence. In my view, it is fair and reasonable that there be no order with respect to the costs of this status hearing.
Master R.A. Muir
DATE: April 10, 2015
[^1]: In fairness to the defendant, the plaintiff’s affidavit was also served on April 7, 2015. The affidavit of Dr. Bari was served by the plaintiff on April 6, 2015. In my view, the plaintiff’s materials should have been served much earlier given that this status hearing was first returnable in November 2014 and had been adjourned twice before.