Purcell v. White, 2015 ONSC 2972

Purcell et al. v. White et al.

CV-08-369015

C. Wagman, for the lawyer for the plaintiffs

J. Juda, for the defendants (save William John White)

Motion Heard: May 4/15

By the court:

[1] This action was set down for trial on March 28/12. On May 31/13, it was struck off the trial list because the trial office was not provided with a Certification Form (to set pre-trial/trial dates).

[2] On February 19/14, a Status Notice issued herein in that the action had not been restored to the trial list within 180 days after it was struck off the trial list. On May 6/14 a status hearing was requested by plaintiff’s counsel, which status hearing was scheduled for September 11/14.

[3] On September 11/14, I presided over the status hearing herein and directed that a motion be brought to restore the action to the trial list.

[4] That motion was brought and was heard by me on May 4/15.

[5] For the reasons that follow, I decline to grant leave to the plaintiffs to restore the action to the trial list.

[6] The motion materials filed by the plaintiff are skeletal and devoid of the kind of detail required to satisfy the court that “…there is an acceptable explanation for the delay and that, if the action was allowed to proceed, the defendant[s] would suffer no non-compensable prejudice” (Nissar v. TTC, 2013 ONCA 361 (at para. 31). And even if I apply the test set out in 1351428 Ontario Inc. v. 1937598 Ontario Ltd., 2011 ONSC 4767 (S.C.J.), as Mr. Wagman suggests might be done, there is nothing before me to address the questions of whether the delay was “intentional”, whether it is “excusable”, and whether the presumption of prejudice arising from the delay can be rebutted. Indeed, all that I know is that the action was struck off the trial list and that, according to plaintiffs’ counsel, the “only outstanding matter from the plaintiffs’ perspective is the requirement for a further expert’s report on the issue of damages” (see: December 23/14 affidavit of Allan S. Halpert).

[7] Why was the Certification Form not submitted before May 31/13? Was it a matter of lawyer’s inadvertence or client instructions? Was it a slip or decision taken deliberately? Why were no steps taken to restore the action to the trial list before the Status Notice issued? Why is there need for a further expert’s report on damages, at this time, and why could such report not have been delivered before now? Are all of the plaintiffs and the plaintiffs’ witnesses available? Are the plaintiffs ready, willing and able to proceed? Have the documents/has the evidence been preserved? There is not a scintilla of evidence before me that addresses (if not answers) these questions and, in a case such as this (with no examinations for discovery having been conducted), addressing whether the parties/documents/witnesses are available is more important than it might otherwise be. The evidence of the parties has not been memorialized in any way.

[8] The action arises out of events that occurred in 2008, some 7 years ago. Why have the plaintiffs failed to move with alacrity? Why has neither of the plaintiffs sworn an affidavit? Their information is not incorporated by reference, save as it relates to the unexplained need for an expert’s report, in the affidavit of Mr. Halpert.

[9] It is true, as Mr. Wagman points out, that the defendants have not said that they will suffer non-compensable prejudice. But the fact that they haven’t isn’t fatal to their opposition to the motion. The plaintiffs have failed to lead any evidence as to the explanation for the delay or as to how the presumption of prejudice--given the passage of time and the presumed fading of memories (and the like)--might be rebutted. The plaintiffs haven’t even made the bald statement (directly or through Mr. Halpert) that, from their perspective, the defendants will suffer no non-compensable prejudice.

[10] All that is before me is a claim commenced some 7 years ago, in respect of which the plaintiffs’ affidavit of documents was served some 4 years after the action was commenced (with no explanation for the delay), mediation was conducted and, inexplicably, efforts to reinstate the action were not made until approximately 1 year after the action was struck from the trial list. I cannot know that “it is fair and just” to restore the action to the trial list (see: P & J General Contracting Inc. v. Taurasi Holdings Ltd., 2014 ONSC 2725, at para. 8) because the evidence adduced by the plaintiffs does not permit me to engage in the analysis necessary to reach that conclusion.

[11] The plaintiffs’ motion is thus denied. Failing agreement as to the costs of the motion, I may be spoken to.

May 6/15 ________________________________

Master Abrams