Ahmadi v. Doe 2015 ONSC 3288
MOTION HEARD: November 4, 2014 and January 16, 2015
SUPERIOR COURT OF JUSTICE - ONTARIO
BETWEEN: Farzana Ahmadi
Plaintiff
v.
John Doe, the Superintendent of Financial Services and
Traders General Insurance Company
Defendants
BEFORE: Master Thomas Hawkins
APPEARANCES: Deborah Ikede for moving plaintiff
F (416) 649-0001
Thomas Macmillan for responding defendant
Traders General Insurance Company
F (416) 594-9100
John Friendly for responding defendant
The Superintendent of Financial Services
F (416) 590-7556
No one for defendant John Doe
REASONS FOR DECISION
Nature of Motion
1This is a motion by the plaintiff in part for an order setting aside the order of a registrar dated April 25, 2012 dismissing this action with costs as abandoned.
2This is an action for damages and other relief arising out of a motor vehicle accident which occurred on October 9, 2009. At that time the plaintiff was a pedestrian. She was struck by a motor vehicle operated by the defendant John Doe. John Doe left the accident scene without providing information as to his identity and his insurance coverage, if any.
3The plaintiff brings this motion pursuant to subrules 37.14(1)(c) and (2). These subrules provide as follows.
37.14 (1) A party or other person who,
(a) is affected by an order obtained on motion without notice;
(b) fails to appear on a motion through accident, mistake or insufficient notice; or
(c) is affected by an order of a registrar,
may move to set aside or vary the order, by a notice of motion that is served forthwith after the order comes to the person’s attention and names the first available hearing date that is at least three days after service of the notice of motion.
(2) On a motion under subrule (1), the court may set aside or vary the order on such terms as are just.
4The plaintiff is a party affected by an order of a registrar.
5As argued, this motion was basically a fight between the plaintiff and the defendant Traders General Insurance Company (“Traders”).
6The plaintiff made the Superintendent of Financial Services (the “Superintendent”) a defendant because the Superintendent administers the Motor Vehicle Accident Claims Fund (the “Fund”). The Fund pays claims arising from motor vehicle accidents involving an unidentified owner or operator of a motor vehicle involved in an accident who is uninsured or underinsured, if the claimant does not have coverage under any other standard automobile policy. John Doe is unidentified and may be uninsured or underinsured.
7The Superintendent did not oppose this motion as such. Rather, the Superintendent takes the position that the plaintiff has coverage under a standard automobile policy underwritten by Traders and that the Superintendent should therefore be let out of the action because the Fund is not liable to pay the plaintiff’s claim in these circumstances.
8The following is a history of this action with an emphasis on the events leading up to the registrar’s dismissal order of April 25, 2012, and argument of this motion before me on November 4, 2014 and January 16, 2015. In these reasons for decision I will call the plaintiff’s main lawyer, lawyer P.S.
Date
Event
October 9, 2009
Plaintiff injured in pedestrian/motor vehicle accident.
January 15, 2010
Plaintiff’s lawyer P.S. sends letters to Traders and the Fund notifying them of the plaintiff’s claim.
May 17, 2011
Francesca Imbesi, assistant to lawyer P.S., has telephone conversation with Dan Arrizza of Traders about plaintiff’s claim and then writes him enclosing motor vehicle accident report on plaintiff’s pedestrian/motor vehicle accident.
September 1, 2011
Plaintiff’s lawyers have registrar issue statement of claim.
September 7, 2011
Superintendent is served with statement of claim.
September 23, 2011
Traders is served with statement of claim.
November 2, 2011
Dan Arrizza of Traders telephones lawyer P.S. and requests a waiver of defence for 60 days. Lawyer P.S. grants the request but asks that Traders appoint defence counsel and enter a statement of defence when waiver has expired.
November 3, 2011
Lawyer P.S. writes Traders confirming above telephone conversation.
January 2, 2012
Sixty day waiver of defence period expires. Traders does not deliver any defence. Lawyer P.S. does not then demand a defence from Traders or take proceedings for default of defence against Traders.
February 29, 2012
Registrar sends out notice that action will be dismissed (Form 48E) within 45 days unless (amongst other things) a defence is filed. Lawyer P.S. says neither he nor his firm received any Form 48E notice in this action. This is disputed.
March 28, 2012
Mr. Arrizza emails Rogers Partners LLP advising them of above Arrizza/P.S. conversation. Traders retains Rogers Partners LLP the next day.
March 29, 2012
Lawyer Diane Craig of Rogers Partners LLP writes lawyer P.S. by fax advising that Traders has retained her firm and that she has just received the Traders file. She requests a short indulgence to enable her firm to look into the matter. She asks that lawyer P.S. not take default proceedings without notice to her firm. Lawyer P.S. does not respond.
April 25, 2012
Registrar issues order dismissing this action as abandoned (Form 48F). Neither the plaintiff’s lawyers nor Traders receive this order immediately.
May 4, 2012
Traders lawyer Murleen Grant writes lawyer P.S. two letters, one requesting a large number of documents respecting the plaintiff’s claim. She also advises lawyer P.S. that her assistant will be contacting his office to schedule examinations for discovery. In the second letter she asks lawyer P.S. to send her a copy of the affidavit of service of the statement of claim on Traders so that she can enter a statement of defence.
May 18, 2012
Francesca Imbesi, legal assistant to lawyer P.S., writes lawyer Grant two letters, one enclosing a large number of documents on the plaintiff’s injuries and treatment and the other enclosing the statement of claim and affidavit of service on Traders.
May 24, 2012
Lawyer Grant discusses this action with lawyer P.S. and advises that Traders wants a signed authorization from the plaintiff requesting the police file on subject accident. Lawyer Grant also tells lawyer P.S. that she has received an order dismissing this action as abandoned dated April 25, 2012. Lawyer P.S. tells her that he will bring a motion to have the action reinstated.
July 18, 2012
Lawyer Grant has telephone conversation with Georgina Sibru, one of the plaintiff’s lawyers. They discuss setting up discoveries. Lawyer Grant tells lawyer Sibru about her May 24, 2012 conversation with lawyer P.S. and that she has not heard back from lawyer P.S. about his motion to reinstate this action. Lawyer Sibru says she will look into the matter. The same day Rogers Partners law clerk Sara Sansalone writes lawyer P.S. enclosing an authorization for signature by the plaintiff allowing Rogers Partners to obtain complete copy of police file on subject accident.
July 19, 2012
Lawyer Grant writes lawyer Sibru confirming above conversations of May 24 and July 18, 2012.
August 2, 2012
Legal assistant Imbesi writes law clerk Sansalone enclosing authorization signed by plaintiff to enable Rogers Partners to obtain complete police file on subject accident.
June 16, 2014
Plaintiff’s motion record for present motion served on defence counsel.
November 4, 2014
Argument of present motion begins and is adjourned uncompleted.
January 16, 2015
Argument of motion completed. I reserve judgment.
Legal Test for Setting Aside Registrar’s Dismissal Order
9In Scaini v. Prochnicki, 2007 ONCA 63, 2007 ONCA63, 85 O.R. (3d) 179, Goudge J.A., speaking for the Court of Appeal for Ontario, allowed an appeal from a motion judge. The motion judge had dismissed a plaintiff’s motion to set aside a registrar’s dismissal order because the plaintiff had failed to satisfy one of four criteria often used in deciding such motions. Master Dash originally laid down these four criteria in Reid v. Dow Corning Corp. (2001), 11 C.P.C. (5th) 80.
10At paragraphs 21 to 24 of his decision, Goudge J.A. expressed himself as follows.
21 More importantly, I do not agree that the case law reviewed in Reid, supra, yields the proposition that an appellant must satisfy each relevant criterion in order to have the registrar’s order set aside. None of the cases referred to say so expressly and several proceed on a more contextual basis. For example, in Steele v. Ottawa-Carleton (Regional Municipality), [1998] O.J. No. 3154 (Gen. Div.) Master Beaudoin, at para. 17, described the guiding principle in deciding whether to set aside a Rule 48.14 dismissal by the registrar as follows:
… Ultimately, the Court will exercise its discretion upon a consideration of the relevant factors and will attempt to balance the interests of the parties.
22 I agree with Master Beaudoin.
23 In my view, a contextual approach to this question is to be preferred to a rigid test requiring an appellant to satisfy each one of a fixed set of criteria. The latter approach is not mandated by the jurisprudence. On the other hand, the applicable rules clearly point to the former. In particular, the motion to set aside the registrar’s order dismissing the action for delay engages rule 37.14(1) (c) and (2). The latter invites the court to make the order that is just in the circumstances. A fixed formula like that applied by the motion judge is simply too inflexible to allow the court in each case to reach the just result contemplated by the rules.
24 That is not to say that there are no criteria to guide the court. Indeed I view the criteria used by the motion judge as likely to be of central importance in most cases. While there may be other relevant factors in any particular case, these will be the main ones. The key point is that the court consider and weigh all relevant factors to determine the order that is just in the circumstances of the particular case.
11Because Goudge J.A. said that the four Reid criteria used by the motion judge were likely to be of central importance in most cases, I will consider these four criteria, using a contextual approach respecting the facts underlying this motion while attempting to balance the interests of the parties.
Contextual Approach to this Motion
12Before I consider the four Reid criteria, I will comment on one aspect of the context in which this motion was argued.
13Before 2015 court registrars could dismiss actions in two relevant situations.
14First, under subrule 48.15(1) the registrar was directed to dismiss actions as abandoned if (amongst other things) no statement of defence was filed within 180 days after the action was commenced.
15Before 2015 subrule 48.15(1) provided as follows.
48.15(1) The registrar shall make an order dismissing an action as abandoned if the following conditions are satisfied, unless the court orders otherwise:
More than 180 days have passed since the date the originating process was issued.
None of the following has been filed:
i. A statement of defence.
ii. A notice of intent to defend.
iii. A notice of motion in response to an action, other than a motion challenging the court’s jurisdiction.
The action has not been disposed of by final order or judgment.
The action has not been set down for trial.
The registrar has given 45 days notice in Form 48E that the action will be dismissed as abandoned.
16Secondly, before 2015 the registrar was directed to dismiss a defended action for delay under subrule 48.15(1) two years and 90 days after the first defence was filed. The term “defence” is defined broadly in subrule 48.14(0.1).
17Before 2015, subrules 48.14(0.1) and (1) provided as follows.
48.14 (0.1) In this rule, “defence” means,
(a) a statement of defence,
(b) a notice of intent to defend, and
(c) a notice of motion in response to an action, other than a motion challenging the court’s jurisdiction.
(1) Unless the court orders otherwise, if an action in which a defence has been filed has not been placed on a trial list or terminated by any means within two years after the first defence is filed, the registrar shall serve on the parties a status notice in Form 48C.1 that the action will be dismissed for delay unless, within 90 days after service of the notice, the action is set down for trial or terminated, or documents are filed in accordance with subrule (10).
18With effect as of January 1, 2015 subrule 48.14(1) and 48.15(1) were amended. Rule 48.15 was repealed altogether. Registrars no longer have jurisdiction to dismiss actions as abandoned. Had this repeal of subrule 48.15(1) been made retroactive to 2012, the registrar would not have dismissed this action as abandoned. However this repeal of subrule 48.15(1) was not made retroactive to 2012. Nevertheless this repeal was in force on January 16, 2015 when argument of this motion concluded.
19In practical terms the amendment to subrule 48.14(1) means that plaintiffs currently have about five years to set their actions down for trial or otherwise conclude their actions. That is more than twice as much time as plaintiffs had before 2015. What now constitutes an acceptable level of diligence in the prosecution of an action is a much easier test to meet than was the case in the past.
20The relevant parts of subrule 48.14(1) now provide as follows.
Unless the court orders otherwise, the registrar shall dismiss an action for delay in either of the following circumstances, subject to subrules (4) to (8):
- The action has not been set down for trial or terminated by any means by the later of the fifth anniversary of the commencement of the action and January 1, 2017.
First Reid Criterion
21The first Reid criterion is as follows.
Has the plaintiff provided a satisfactory explanation for the litigation delay?
22This explanation must cover all delays in the prosecution of this action from its inception on September 1, 2011.
23This action was properly prosecuted at least until January 2, 2012 when the waiver of defence which lawyer P.S. had given to Traders expired. At that point Traders had neither retained counsel nor filed a defence.
24The registrar dismissed this action as abandoned 113 days later, a period of less than four months.
25During argument, counsel for Traders submitted that all lawyer P.S. had to do to prevent the registrar from dismissing this action as abandoned was to have the registrar note Traders in default of defence. This is not correct.
26To prevent the registrar from dismissing this action as abandoned, lawyer P.S. would had to do one of the following.
(a) note Traders in default of defence and bring a motion under subrule 19.09(1) before a judge for judgment against Traders on the statement of claim; or
(b) set the action down for trial.
27The better course of action would have been to bring a motion for judgment on the statement of claim after having the registrar note Traders in default of defence. Because it would have been most unlikely that the plaintiff could secure a motion date before a judge and obtain judgment against Traders by a date less than 180 days after this action was commenced, the motion for judgment would have to be combined with a motion for an order directing the registrar not to dismiss this action as abandoned before the disposition of the plaintiff’s motion for judgment against Traders.
28Another approach for lawyer P.S. to take would have been to bring a motion for an order extending the 180 day deadline in subrule 48.15(1) by a month or two and, in the meantime, pressure Traders to retain counsel and enter a defence.
29Lawyer P.S. did not take the steps I have described in paragraphs [26] to [28]. Lawyer P.S. says that he was reluctant to request the registrar to note Traders in default of defence because he felt such a step would not be compatible with his obligation of common courtesy and professionalism, especially since defence lawyer Craig had written him asking for a short indulgence to enable her firm to look into this matter and asking him not to take default proceedings without notice to her firm.
30Lawyer P.S. did take the following steps to get a statement of defence form Traders. On November 2, 2011 in a telephone conversation with Mr. Arrizza of Traders, he gave Traders a 60 day time extension but asked that Traders appoint counsel and enter a statement of defence. On November 3, 2011 he made the same request in a letter to Mr. Arrizza.
31In March 2012 lawyer P.S. received a Form 48E notice from the registrar that the action will be dismissed as abandoned in 45 days unless (amongst other things) a defence is filed. Lawyer P.S. then telephoned Mr. Arrizza and asked that Traders deliver a defence. Mr. Arrizza sent Rogers Partners an email advising them of this conversation.
32I realize that lawyer P.S. does not recall either this conversation with Mr. Arrizza or recall receiving the Form 48E notice. However, I prefer the Traders’ evidence on this point to the evidence of lawyer P.S.. In the context, the Traders’ evidence is a statement against the interests of Traders.
33As I have said, on March 29, 2012 lawyer Craig wrote lawyer P.S. asking for a short indulgence. The registrar did not dismiss this action as abandoned for another 27 days. It is important to realize that all Traders’ lawyers had to do to prevent the registrar from dismissing this action as abandoned was to serve and file a notice of intent to defend. It was not necessary for Traders’ lawyers to draft, serve and file a complete statement of defence in order to prevent the registrar from dismissing this action as abandoned.
34This is made clear by the wording of clause 2ii of subrule 48.15(1). This subrule is set out in paragraph [15] above.
35As matters developed, the lawyers for Traders got more than the short indulgence which they requested. Notwithstanding this, the lawyers for Traders did not even take the simple step of serving and filing a notice of intent to defend before April 25, 2012 when the registrar dismissed this action as abandoned.
36In summary, lawyer P.S. has explained much but not all of the delays in the prosecution of this action. That said, the unexplained delays are not lengthy. It is true that lawyer P.S. could have done more to put pressure on Traders and its lawyers to respond to this action in a timely way. He could have but did not bring one or more of the motions which I have described in paragraphs [26] to [28] above.
37I decline to dismiss this motion on that basis. In my view, Traders and its lawyers are more to blame for the dismissal of this action than lawyer P.S.. It offends my sense of fairness for Traders to request and obtain two indulgences from lawyer P.S. (one directly through Mr. Arrizza and a second indirectly through its lawyers), to abuse those indulgences by not taking even the simple step required to prevent the registrar from dismissing this action as abandoned (that is, serving and filing a notice of intent to defend) and then to submit that this motion should be dismissed.
Second Reid Criterion
38I now turn to the second Reid criterion. It is necessary to edit this criterion because when Master Dash originally laid down these four criteria in Reid v. Dow Corning Corp., supra, he was dealing with a motion to set aside a registrar’s order dismissing an action for delay. This is a motion to set aside a registrar’s order dismissing an action as abandoned.
39As edited so as to apply to the kind of motion before me, the second Reid criterion may be expressed as follows.
Has the plaintiff led satisfactory evidence to explain that she always intended to prosecute this action within the time limits set out in the Rules of Civil Procedure or a court order but failed to do so through inadvertence.
40In my view, the main purpose of this criterion is to identify those situations in which a plaintiff or a plaintiff’s counsel, with the approval of his or her client has deliberately flouted the Rules of Civil Procedure or orders of the court.
41The plaintiff is not in default of any order of this court.
42I would have preferred that this motion be supported by an affidavit from the plaintiff herself. There is no such affidavit before me. If the plaintiff had truly intended to abandon this action, I do not believe that the plaintiff’s lawyers would have brought this motion. It has been a hard fought motion as between the plaintiff and Traders. Some ten volumes of material have been filed with me. These volumes made a pile nine centimeters high. The plaintiff’s lawyers have not given up the fight. I therefore do not believe that the plaintiff intended to abandon this action.
43In my discussion of the first Reid criterion I have described the steps which lawyer P.S. took to try and get Traders to respond to this action. While I have concluded that lawyer P.S. could have done more, he has not displayed an attitude of stubborn disobedience to the time limits set out in the Rules of Civil Procedure. Lawyer P.S. forgot that he had received the registrar’s Form 48E warning that the registrar would dismiss this action as abandoned in 45 days and forgot that having received this form, he called Mr. Arrizza and requested that Traders deliver a defence. Lawyer P.S. does not appear to have diarized any deadline for action to prevent the registrar from dismissing this action as abandoned. Alternatively, he did not consult his diary in time. He did not respond to lawyer Craig’s March 29, 2012 letter requesting a short indulgence by (for example) putting a specific time limit on the indulgence.
44I regard this conduct by lawyer P.S. as inadvertent conduct rather than deliberately disobedient conduct as regards the deadlines in the Rules of Civil Procedure. I am therefore of the view that the plaintiff has met the second Reid criterion.
Third Reid Criterion
45This brings me to the third Reid criterion. This criterion may be expressed as follows.
Has the present motion been brought promptly?
46In my view, this motion was not brought promptly.
47Lawyer P.S. was aware at least as early as May 24, 2012 that the registrar had dismissed this action as abandoned on April 25, 2012. On May 24, 2012 lawyer Grant telephoned lawyer P.S. and told him that she had received the registrar’s order dismissing this action as abandoned.
48This motion would have been brought promptly if it had been initially argued six to eight months later (then the approximate waiting time to obtain a short motion hearing date before a master) that is, by November 2012 or January 2013. In fact argument of this motion did not commence until November 4, 2014, about 29 months after May 24, 2012.
49I recognize that initially after April 25, 2012 the parties were focused on production of documents and setting up examinations for discovery and seemed to regard setting aside the registrar’s dismissal order as a mere formality. I also recognize that the plaintiff’s lawyers were not responsible for all the delays in bringing this motion to a hearing, and that Traders did not indicate that it would oppose this motion until April 2014, long after May 24, 2012. Still, the plaintiff’s lawyers must accept responsibility for most of the delays in bringing this motion.
50In Finlay v. Van Paassen, 2010 ONCA 204 a two year delay in bringing a motion to set aside a registrar’s dismissal order was not fatal to the plaintiff. Laskin J.A., speaking for the Court of Appeal for Ontario, said the following (at paragraph 33).
In my view, on a motion to set aside a dismissal order, the court should be concerned primarily with the rights of the litigants, not with the conduct of their counsel.
51The key issue is whether the defendant Traders has suffered prejudice as a result of the delay.
52This leads to the fourth Reid criterion. To my mind this criterion is the most important one of the four criteria.
Fourth Reid Criterion
53The fourth Reid criterion may be expressed as follows (edited so as to apply to the facts before me).
Has Traders suffered any significant prejudice in presenting its case at trial as a result of the plaintiff’s delay or as a result of steps taken following the dismissal of this action?
54The plaintiff has the onus of persuading me that Traders has not suffered such prejudice. That said, in most motions like the present one, as between the plaintiff and the defendant (here, Traders) the defendant has the better means of knowledge as to whether it has suffered prejudice.
55Murleen Grant, one of Traders’ lawyers, swore the only affidavit which Traders served in response to this motion. The Grant affidavit is silent on the subject of prejudice to Traders.
56On January 15, 2010 lawyer P.S. sent a letter to both Traders and the Fund notifying them of the plaintiff’s claim. This was about four months after the plaintiff’s accident. Each letter advises the reader that the plaintiff has a claim arising from injuries suffered in a motor vehicle accident. The letter gave the date of the accident but not the time and location of the accident.
57Neither Traders nor the Fund wrote lawyer P.S. in response to his letter or otherwise contacted him to obtain this missing information and begin their investigation into the circumstances surrounding the plaintiff’s claim and her injuries.
58On May 17, 2011, Francesca Imbesi spoke with Mr. Arrizza of Traders about the plaintiff’s claim and then sent him a copy of the motor vehicle accident report on the plaintiff’s October 9, 2009 accident. I have no evidence as to what if anything Traders did with this information.
59If Traders did not conduct any investigation respecting the plaintiff’s claim despite early notice of her claim that is not something for which the plaintiff and her lawyers can be blamed. One cannot manufacture prejudice by failing to take prudent defensive measures.
60During argument, counsel for Traders submitted that there were missing records on the plaintiff’s employment and missing medical records on the plaintiff’s post accident treatment. Lawyer P.S. was cross-examined on his affidavit but not on these points. Lawyer Grant’s affidavit is silent on these points.
61Harlan Pottins, another of the plaintiff’s lawyers, has sworn an affidavit on the subject of what medical and other records his firm has respecting the plaintiff’s claim. He was not cross-examined at all and certainly not on the subject of missing records.
62I cannot give any weight to submissions about supposedly missing records that are not supported by sworn or affirmed testimony.
63Finally, counsel for Traders submitted that since the limitation period respecting the plaintiff’s claim has expired, Traders was entitled to rely upon presumed prejudice. Here the limitation period expired on October 9, 2011 except for the claim against John Doe, should he ever be identified and located. The limited information which one or more witnesses to the plaintiff’s accident gave to the police about John Doe and his vehicle did not enable the police to identify and locate John Doe.
64October 9, 2011 is the second anniversary of the plaintiff’s accident. That date was before there was any delay in the prosecution of this action.
65Given these circumstances and the absence of actual prejudice to Traders, I cannot give any material weight to the factor of presumed prejudice.
66There is no evidence that Traders has suffered any prejudice as a result of steps taken following the registrar’s dismissal of this action.
67I therefore conclude that the plaintiff has met the fourth Reid criterion.
Balancing Interests
68Finally, I must balance the interests of the parties. If I dismiss this motion and the plaintiff’s allegations are true, the plaintiff will have suffered significant injuries without any of the compensation which she claims in this action. She will also have to pay the costs of the action to the defendants since the registrar’s order was a dismissal with costs. If I dismiss this motion Traders will benefit from its own tardiness in retaining counsel and the failure of its counsel to take promptly the simple step of serving and filing a notice of intent to defend. That does not strike me as a just outcome.
69If I grant this motion Traders will still have the opportunity of presenting its defence at trial since it has not suffered any actual prejudice.
70In my view, this balancing exercise strongly favours the plaintiff.
Conclusion
71For all these reasons, this motion is granted. Within 30 days the parties are to agree upon a timetable covering all steps that they wish to take up to and including the date by which the plaintiff is to set this action down for trial. If they cannot agree on a timetable any party may write me requesting a telephone case conference at which time I will timetable this action in consultation with counsel.
Costs
72The plaintiff has been successful on this motion. Traders should have consented to an order setting aside the registrar’s dismissal order since it bears a heavy measure of responsibility for the dismissal order in the first place and it has not suffered any actual prejudice. Instead Traders fought the motion and lost.
73Nevertheless the plaintiff’s lawyers are also responsible for the delays in this action, especially the delays in bringing this motion.
74There will therefore be no costs of this motion as between the plaintiff and Traders.
75There will be no order as to costs in favour of or against the Superintendent who did not oppose this motion. The Superintendent filed a bill of costs detailing over 100 hours of billable time. That seems to me to be an astounding amount of time to spend on this motion when the Superintendent did not oppose the motion and filed no material on the motion apart from the bill of costs.
(original signed)
Date: May 15__, 2015 Master Thomas Hawkins