CITATION: Carson v. Scheuer, 2015 ONSC 2593
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Fred George Carson
– and –
Plaintiff
Lawrence Scheuer and Noreen Scheuer by their Litigation Guardian, Brian Scheuer
Defendants
Réjean Parisé, for the Plaintiff
Richard Nolin, for the Defendants
HEARD: April 17, 2015
RULING ON MOTION
GAUTHIER J.
The Motion
1Brian Scheuer (“Scheuer”), litigation guardian of the defendants Lawrence Scheuer and Noreen Scheuer (the “defendants”), brought a motion, originally returnable on March 8, 2013, for, among other things, an order dismissing the action for delay. He relies on both the provisions of Rule 24, and the court’s inherent jurisdiction to control its own process.
2I have borrowed liberally from the facta filed on the motion.
This Action arose from an alleged bicycle accident that occurred, on property that was then owned by the defendants in May of 1997. The plaintiff was allegedly riding his bicycle over a man-made foot bridge when the foot bridge gave way, causing the alleged injuries to the plaintiff. The subject property was vacant land. The defendants did not have any buildings on it.
The statement of claim was issued and served on the defendants on November 27, 2001, within the limitation period as it then was. Doug Los of Weaver, Simmons was contacted by Lawrence and Noreen Scheuer around November 2001. Mr. Los made numerous attempts to have the Scheuers’ insurance respond to the allegations in the statement of claim. The insurers ultimately declined to defend the Scheuers.
3On December 18, 2001, the defendants were noted in default.
4On December 19, 2001, Carson’s counsel had a telephone conversation with the defendants’ counsel. Defendants’ counsel was not advised about the noting in default of the defendants the previous day.
5Defendants’ counsel continued his efforts to have the defendants’ insurer defend the action, without success. In that regard, he forwarded a letter to Carson’s counsel on February 13, 2002, advising him of the issue of insurance coverage and enclosing a Notice of Intent to Defend. The letter requested forbearance until the insurance issue could be resolved one way or another.
6No response was received to the letter of February 13, 2002.
7Defendants’ counsel once again corresponded with Carson’s counsel on April 30, 2003, advising him that the defendants would not be afforded insurance coverage to respond to the claim and that the defendants had retained him to defend the claim. Once again, defendants’ counsel requested a reasonable period of forbearance to enable defendants’ counsel to deliver a statement of defence.
8There was no response to that letter.
9On August 25, 2003, defendants’ counsel once again corresponded with Carson’s counsel as follows:
We have recently discussed this matter with our client, and would advise that he has virtually no information as to the precise location at which your client states he was injured. We would, therefore, ask for your client’s particular description and location of the area where he believes the mishap took place.
10No response was received.
11On October 14, 2003, defendants’ counsel wrote to Carson’s counsel once again, indicating an inability to plead in any meaningful way without information regarding the precise location of the mishap. The letter enclosed a formal demand for particulars.
12That correspondence also went unanswered.
13Between November 5, 2003, and May 18, 2004, defendants’ counsel made 4 more requests for the particulars of the location of the accident, with the last letter setting out the following:
As you may appreciate the fact that the Scheuers’ insurance has denied coverage leaving them with the personal risk and costs of defending this matter continues to cause them stress. If your client’s inactivity is an indication that he has lost interest in pursuing the matter can we formally dispose of the action by way of a Consent dismissal or filed Notice of Discontinuance.
14On May 25, 2004, Carson’s counsel responded in writing to the effect that his client would indicate on a plan the exact location of the mishap. This would be done soon and shared with defendants’ counsel.
15On July 14, 2004, defendants’ counsel followed up with a letter to Carson’s counsel requesting the plan. No response was forthcoming.
16On March 10, 2005, the defendants were advised by their counsel that there had been “no activity” from Carson’s counsel and forwarded a disbursement account.
17At the July 6, 2010, assignment court, the matter was set down for trial on April 4, 2011. On that date, the matter as adjourned to October 11, 2011, at which time it was put over to June 15, 2012, for hearing (motion for judgment).
18In the meantime, on April 24, 2012, the Registrar’s office issued a status notice. Such notice stated that the action would be dismissed for delay within 90 days unless certain steps were taken.
19On June 13, 2012, Carson swore an affidavit detailing the incident and his injuries, in support of the motion for judgment which had been scheduled for June 15, 2012.
20Justice Del Frate declined to proceed with the hearing on June 15, 2012, and instead adjourned it to the Trial Co-Ordinator to set a new date before him, and he directed Carson’s counsel to use his best efforts to inform the defendants of the action and of the return date of the matter. The matter was ultimately made returnable on July 30, 2012.
21A letter dated July 20, 2012, was forwarded to the defendants enclosing a copy of the statement of claim “served upon you many years ago. The action has not been defended and is listed for an uncontested hearing on …”
22July 2012 was the only time that Carson’s counsel requested that the defendants deliver a statement of defence.
23The letter was received by Brian Scheuer who, by that time, was residing in the defendants’ house, both defendants having taken up residence at a local nursing home and both being of unsound mind and unable to instruct counsel.
24Brian Scheuer advised defendants’ counsel’s law firm of the letter. Their earlier counsel had retired and a new counsel took carriage of the matter.
25As a result of the letter, defendants’ counsel conducted a search at the Registrar’s Office and discovered that the defendants had been noted in default on December 18, 2001. This was the first time defendants’ counsel became aware of the noting in default.
26The defendants brought a motion for (a) an order appointing Brian Scheuer as litigation guardian of the defendants, (b) for leave to amend the title of proceedings accordingly, (c) an order setting aside the noting of default, (d) for an order dismissing the action for delay, (e) in the alternative, that Carson provide particulars of the location, date and time of the alleged incident, within 10 days, and (f) leave to deliver a statement of defence within 20 days of Carson providing particulars. This was by way of motion record dated February 27, 2013, originally returnable on March 8, 2013.
27On April 15, 2013, a consent order was made granting the relief sought in (a) and (c) above. The balance of the motion was adjourned to July 2, 2013.
28Carson’s responding record was filed on November 27, 2013. It included the June13, 2012, affidavit which appended as an exhibit, the Assessment Plan for the Township of Waters from which Carson indicated he was able to ascertain the place where the accident occurred, which is on Parcel 5000 owned by the defendants.
29On December 4, 2013, the defendants’ February 27, 2013, motion was adjourned without date, returnable on 4 days’ notice.
30The motion was ultimately argued on April 17, 2015, at which time I reserved my Ruling.
The Issue
31Should the action be dismissed for delay, pursuant to Rule 24 or pursuant to the court’s inherent jurisdiction to control its process?
The Rule
32Rule 24.01 of the Rules of Civil Procedure provides as follows:
24.01 (1) A defendant who is not in default under these rules or an order of the court may move to have an action dismissed for delay where the plaintiff has failed,
(a) to serve the statement of claim on all the defendants within the prescribed time;
(b) to have noted in default any defendant who has failed to deliver a statement of defence, within thirty days after the default;
(c) to set the action down for trial within six months after the close of pleadings; or
(d) Revoked: R.R.O. 1990. Reg. 194, r. 24.01 (2).
(e) to move for leave to restore to a trial list an action that has been struck off the trial list, within thirty days after the action was struck off. R.R.O. 1990, Reg. 194, r. 24.01; R.R.O. 1990, Reg. 194, r. 24.01 (2); O. Reg. 770/92, s. 7; O. Reg. 533/95, s. 4 (1).
(2) The court shall, subject to subrule 24.02 (2), dismiss an action for delay if either of the circumstances described in paragraphs 1 and 2 of subrule 48.14 (1) applies to the action, unless the plaintiff demonstrates that dismissal of the action would be unjust. O. Reg. 259/14, s. 6.
The Law
33The Court of Appeal in 1196158 Ontario Inc. v. 6274013 Canada Limited, 2012 ONCA 544 had this to say about delay and fairness in civil litigation:
The civil justice system aims to resolve disputes fairly, on the merits and in a timely and efficient manner. The Rules of Civil Procedure provide that the rules are to be “liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits”: Rule 1.04(1).
Achieving that goal in cases involving dismissal for delay requires a careful balance of two fundamental principles. The first is that civil actions should, if possible, be decided on their merits and procedural rules should be interpreted accordingly. The second is that the procedural rules that aim to resolve disputes in a timely and efficient manner can only achieve their goal if they are respected and enforced.
The challenge posed in cases involving dismissal for delay is to find the right balance between, on the one hand, the need to ensure that the rules are enforced to ensure timely and efficient justice and, on the other, the need to ensure sufficient flexibility to allow parties able to provide a reasonable explanation for failing to comply with the rules to have their disputes decided on the merits.
See paras.17, 18, and 20.
34The dismissal of an action for delay is a severe remedy denying a party an adjudication on the merits of his or her claim. Conversely, such dismissal is sometimes the only order that can adequately protect the integrity of the civil justice system and protect a defendant from an unfair adjudication on the merits. Langenecker v. Sauve, 2011 ONCA 803.
35An action should not be dismissed for delay unless:
a) the delay is intentional and contumelious; or
b) the plaintiff or his or her lawyer is responsible for the inexcusable delay; and
c) the delay gives rise to a substantial risk that a fair trial might not now be possible. It is presumed that memories fade over time, and an inordinate delay after the cause of action arose or after the passage of a limitation period gives rise to a presumption of prejudice. Where there is a presumption of prejudice, the defendant need not lead actual evidence of prejudice and the action will be dismissed for delay unless the plaintiff rebuts the presumption. The presumption of prejudice may be rebutted by evidence that all documentary evidence has been preserved and the issues in the lawsuit do not depend on the recollection of witnesses or that all necessary witnesses are available with detailed recollection of the events. If the presumption is rebutted, then the action may still be dismissed if the defendant leads convincing evidence of actual prejudice.
See Woodheath Developments Ltd. v. Goldman, 2003 CanLII 46735 (ON SCDC).
36In addition to Rule 24.01 and the above jurisprudence, the court may dismiss an action as an exercise of its inherent jurisdiction to control its own process if there is a lengthy and unexplained delay that undermines the public’s confidence in the administration of justice. See Wallace v. Crate’s Marine Sales Ltd., 2014 ONCA 671.
Analysis
37It is agreed that this case does not involve a delay that is intentional or contumelious (insolently abusive and humiliating, and demonstrating a disdain or disrespect for the court’s process).
38Rather, the issue is whether (a) there is inordinate delay, (b) if so, whether such delay is adequately explained, and (c) whether there is a substantial risk that a fair trial of the issues will not be possible.
39A strict application of the provisions of Rule 24.01 results in the rule not being available to the defendants in this case. The statement of claim was served on time. There was a noting in default, which was set aside. It is not clear that the time for delivery of a statement of defence has expired, given that the defendants have chosen (not inappropriately) to pursue the remedy of dismissal. Finally, the matter had been set down for trial.
40I turn therefore to the court’s inherent jurisdiction to control its own process, In determining whether I should dismiss the action as an exercise of inherent jurisdiction, I am to apply the same test as in Rule 24.01. Langenecker.
The Delay
41Carson’s counsel submitted that the relevant period of time to be considered is from 2004 to 2011. This is the period from the time at which Carson’s counsel advised defendants’ counsel that the exact location of the accident would be indicated on a plan shared with defendants’ counsel shortly, until the matter was set for trial.
42The jurisprudence makes it clear that the relevant time when considering delay is from the commencement of the proceeding to the motion to dismiss. Langenecker, supra. Thus, the period in question is from November 27, 2001, to April 17, 2015.
43Carson’s counsel also suggests that the delay is not inordinate, nor is it inexcusable. I am unable to agree with this proposition.
44Thirteen and a half years have elapsed since the action was started. In the circumstances, that period of time exceeds reasonable limits. Evidence which is relevant to the issues of liability and damages is no longer available. I will have more to say about that later in these Reasons. I conclude that the delay is inordinate.
The Explanation
45Carson’s counsel offers essentially two explanations for the delay, the first being that Carson was waiting for his physical condition to stabilize before proceeding to an adjudication of his case. I do not find that explanation compelling.
46The only medical evidence is the letter dated April 24, 2002, from Carson’s family physician who says this:
In summary then, we have a gentleman who had a significant injury to his chest in the form of a fractured sternum and as a resultant chronic thoracic spine and lower cervical spine pain. Physiotherapy will help this gentleman but he will probably require some physiotherapy off and on intermittently for the rest of his life. The headaches and memory loss that you described are not likely related to the original injury. Difficulty sleeping with the pain in his back is related to the injury. The problem with his Achilles tendon is not related to his original injury at least not by my review of the chart that I have available.
47There is an absence of medical records to support the proposition that Carson’s physical condition, relating to injuries sustained in the bicycle mishap, was not ascertainable or that it was unstable and evolving for the fourteen year period in question.
48The second explanation proffered is that counsel mistakenly believed that the information requested by defendants’ counsel as to the exact location of the mishap had been provided. Even so, this does not go any distance to explain the delay between July 2004 and the setting down of the matter for trial in 2011.
49The information regarding the exact location of Carson’s fall was in fact not provided until he was cross-examined on October 9, 2013.
50I adopt the following passage by Gunsolus J., referred to the Court of Appeal in Wallace v. Crate’s Marine Sales Ltd., 2014 ONCA 671:
A lengthy, unexplained delay in a case of this nature could well be defined as an abuse of the court’s process. There is, indeed, a strong public interest in promoting the timely resolution of disputes in our civil justice system, which is already overburdened. Litigants and the public regularly complain about the inordinate delays in obtaining civil motions and trial dates. The delay in this matter, of over a decade, strains the empathy of the court to excuse a delay of this “magnitude and gravity” and further undermines the public confidence in the administration of our civil justice system.
Prejudice
51As I have found the delay to be inexcusable, there is a presumption of prejudice to the defendants. As the Court of Appeal explained at paragraph 11 of Langenecker:
Prejudice is inherent in long delays. Memories fade and fail, witnesses become unavailable, and documents and other potential exhibits are lost. The longer the delay, the stronger the inference of prejudice to the defence case flowing from that delay: Tanguay v. Brouse, 2010 ONCA 73, at para.2.
52The plaintiff seeks to rebut the presumption by submitting that, given that the case involves a single person accident on the defendants’ lands, which lands are the same now as they were in 1997, “the defendants would have the same information base to prepare and file a statement of defence now as they would historically”.
53Carson further submits that the litigation guardian has the same knowledge and depth of knowledge as his parents would have “and that he would be in the same position of [sic] his parents to discuss the land and whether anything has changed, and that the property is the same…”
54Again, even if this is so, that does little to address the issue of prejudice. While the litigation guardian may know about the state of the defendants’ property, there is no evidence to suggest that he has any information about what use was made of the property by any persons in 1997. The level of use, and the defendants’ knowledge of that use, is crucial to a determination of occupiers’ liability. That evidence is not available.
55There is also the potential issue of the availability of medical evidence relating to Carson’s health and physical condition pre-dating the mishap, and at any time until 2002 (the first and only medical evidence proffered), or since.
56The inescapable conclusion is that, in addition to the inherent prejudice in a thirteen and a half year delay, there is the case-specific prejudice that I have referred to above as it relates to the issues of liability, causation, and damages. The defendants have both been deemed mentally incapable of instructing counsel, and unable to properly address the allegations in this action.
57As the Court of Appeal indicated at paragraph 41 of 119158 Ontario Inc.:
The civil justice regime should deliver timely justice to both plaintiffs and defendants. Failure to enforce timelines frustrates the legitimate expectations of both those who claim and those who defend. Unless the basic ground rules of litigation – including time requirements are enforced in a principled way, counsel cannot provide reliable advice and clients cannot plan their affairs in an orderly manner.
58The action is dismissed. In the event that counsel are unable to agree on costs, they are to communicate with the Trial Co-Ordinator within 20 days to fix a date and time to argue costs, failing which they will be taken to have agreed on costs.
The Honourable Madam Justice Louise L. Gauthier
Released: April 27, 2015
CITATION: Carson v. Scheuer, 2015 ONSC 2593
COURT FILE NO.: C-6414-01
DATE: 2015-04-27
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Fred George Carson
– and –
Plaintiff
Lawrence Scheuer and Noreen Scheuer by their Litigation Guardian, Brian Scheuer
Defendants
REASONS FOR JUDGMENT
Gauthier, J.
Released: April 27, 2015