Court File and Parties
Citation: McLean v. Boettcher, 2015 ONSC 3629 Court File No.: 58762 Date: 2015-06-04 Superior Court of Justice – Ontario
Re: Theresa McLean and Thomas McLean (Plaintiffs) And: Tracy Boettcher, Elizabeth Boettcher, John Boettcher, William Taggart, Taggart & Carroll LLP and the Corporation of the Township of Cramahe (Defendants)
Before: Justice B.W. Miller
Counsel: William G. Scott, for the plaintiffs Tanisha G. Tulloch, for the defendants William Taggart and Taggart & Carroll LLP Suzanne Hunt, for the defendant Corporation of the Township of Cramahe No one appearing for the defendants Tracy Boettcher, Elizabeth Boettcher, and John Boettcher
Heard: April 15, 2015
Endorsement
[1] The plaintiffs are seeking to set aside an administrative dismissal of their action, which was commenced by a Statement of Claim issued on July 2, 2008 and dismissed by the Registrar for administrative delay on November 15, 2011. The dismissal was ordered subsequent to a status hearing that was held on December 17, 2010. Prior to the status hearing, the plaintiffs had attempted to file a Trial Record, but were unsuccessful as the pleadings had not closed. At that hearing, the Honourable Justice Rady ordered a timetable that was to have culminated in a Trial Record being filed by October 31, 2011 (the “Rady Timetable”).
[2] The plaintiffs failed to file the Trial Record by this date, according to Mr. Sarasin, their former counsel, because he failed to diarize the filing date and simply forgot about it.
[3] There have been several other missteps on the road to set aside the dismissal. But there has also been considerable delay resulting from a deliberate strategy of the plaintiffs (in which the defendants, for a time, acquiesced) to pursue a remedy through a third party. That strategy, if successful, would have disposed of the dispute between the parties at no cost to the defendants. Pursuing this potential remedy was reasonably believed by each of the parties to be in their own best interests, and the defendants had ample reason to acquiesce in it so long as it remained a viable option and did not prejudice their defence of the litigation.
[4] Determining whether to set aside the dismissal requires first separating out the various causes for the delays.
[5] After a series of delays and adjournments, the original motion to set aside the dismissal of the action was itself dismissed by the Honourable Justice Leach on July 30, 2013. That order, however, was made without prejudice to the plaintiffs bringing a fresh motion to set the dismissal aside. Although no steps in that direction were then taken by plaintiffs for 14 months, that motion has now been brought and is before me. In deciding whether to allow that motion to set aside the dismissal of the action, I must canvass not only at what has transpired since the decision of Leach J., but in the totality of the litigation.
1. Context of the action and the dismissal
[6] The action relates to the purchase and sale of residential property in Colborne, Ontario under an agreement of purchase and sale dated February 24, 2006. The plaintiffs, who were the purchasers, claim against the vendors Tracy Boettcher, Elizabeth Boettcher, and John Boettcher (the ‘Boettcher defendants’), the plaintiffs’ solicitor William Taggart and Taggart & Carroll LLP (the ‘Taggart defendants’), and the Township of Cramahe for various alleged breaches related to the sale. The most significant part of the claim arose from the vendors’ alleged non-disclosure that the property (two lots, one of which was vacant land) came within a ‘holding zone’ designated by the Township of Cramahe, which prohibits construction within the zone. The purpose of the holding zone is to protect against environmental hazards resulting from the proximity of the property to an area that was historically used as an illegal landfill site.
[7] Over the course of examinations for discovery in January 2010, it was revealed that a previous owner had made some efforts to obtain the approval of the Ministry of Environment to remove the property from the holding zone. When they discovered this, the plaintiffs took the position that if the property could be removed from the holding zone, they would be prepared to walk away from the litigation.
[8] At that point, in January 2010, there was a mutual agreement not to carry out any further examinations at that time and to postpone answering undertakings while the plaintiffs investigated this potential solution.
[9] Accordingly, the plaintiffs retained an engineering firm to prepare a report that would, it was hoped, satisfy the Ministry of the Environment to remove the property from the holding zone, and thus end the dispute in a highly cost-efficient manner.
[10] While the plaintiffs effectively parked their litigation, the Taggart defendants, after a few months, resumed trial preparation in accordance with the Rady timetable, and advised the plaintiffs accordingly.
[11] In the absence of evidence on point, I can only presume from the non-resolution of the action: (1) that the engineering report, which was finally prepared in March of 2013 (delays in its production was a contributing factor to some of the litigation delay), did not provoke the desired result from the Ministry of the Environment; (2) that the property has not been removed from the holding zone; (3) and that the parties no longer anticipate a resolution of their dispute via that route.
[12] In any event, the plaintiffs have now retained new counsel and are exhibiting a renewed interest in pursuing the litigation. Although the plaintiff Mr. McLean has deposed on this motion that it has always been his intention to pursue this litigation, the only positive steps taken in this litigation since January 2010 have been at the prodding of the defendants.
2. The procedural history
(i) From examination for discovery to administrative dismissal
[13] On October 4, 2010, the plaintiffs received a Status Notice advising that the action would be dismissed for delay within 90 days unless the action was set down for trial. Mr. Sarasin attempted to file a Trial Record on December 2, 2010 (without consulting with counsel for any of the defendants), but it was properly rejected on the basis that pleadings had not closed; the Taggart defendants had not filed their Amended Statement of Defence and Crossclaim, and the Boettcher defendants had not filed their Defence to the Taggart Crossclaim. Indeed, as Ms. Tulloch, counsel for the Taggart defendants later objected, discoveries were not complete, undertakings remained unanswered, and an expert report had not been filed.
[14] At that time, the parties agreed to a timetable that was endorsed by Order of Rady J. at the status hearing on December 17, 2010. The Rady timetable provided:
a. All parties would deliver answers to undertakings by May 16, 2011;
b. Further examinations for discovery, if needed, would be completed by September 20, 2011;
c. Plaintiffs would set the matter down for trial by October 31, 2011, failing which the action would be dismissed for delay.
[15] The action had proceeded in an orderly fashion (with the exception of the Boettcher defendants’ failing to file a defence to the amended cross-claim of the Taggart defendants) up until the examinations for discovery were held in January 2010. It was at that time that the plaintiffs requested, and the defendants agreed, that the parties would hold off answering undertakings while the plaintiffs explored the resolution via the Ministry of the Environment.
[16] The plaintiffs retained Golder & Associates (“Golder”) in August 2010 to prepare the engineering report. This six month delay in retaining Golder, Mr. Sarasin deposed, was the result of Mr. Sarasin’s change of law firms at that time, and the practical difficulties in obtaining the file from his former firm.
[17] The Taggart defendants delivered their answers to undertakings on May 11, 2011, in keeping with the timetable. The other parties did not observe the Rady Timetable. The plaintiffs provided answers to some undertakings on September 7, 2011, and on September 20, 2011, Ms. Tulloch wrote to Mr. Sarasin to request the remaining answers to the plaintiffs’ undertakings, and to remind him of the requirements of the Rady Timetable. She further asked whether Mr. Sarasin would be seeking to amend the Rady Timetable to allow compliance with respect to outstanding undertakings, and to schedule further examinations. Mr. Sarasin did not reply to that letter.
[18] Mr. Sarasin took no further steps, and did not contact counsel for the other parties prior to the action being dismissed on October 31, 2011. He deposed in an affidavit on this motion that he was unaware of the looming dismissal date (notwithstanding Ms. Tulloch’s reminder in her September 20, 2011 correspondence) due to his assistant failing to diarize it. In any event, he argued in his affidavit, he could not have filed a Trial Record due to the Boettcher defendants not having filed a Defence to the Crossclaim.[^1]
[19] Mr. Sarasin did not receive a copy of the Dismissal Order from the Court Registry. For whatever reason, there does not appear to be a copy of the Dismissal Order in the court file.
[20] In February 2012, Ms. Tulloch received notice from the Court Registry that the action had been dismissed, and she wrote to Mr. Sarasin on February 27, 2012, to confirm this with him.
(ii) From dismissal to striking the first motion to set aside the disimissal
[21] Thereafter, on becoming aware of the dismissal, the plaintiffs moved to set it aside. There is no dispute that they moved promptly. The Motion Record was served March 22, 2012, and was originally returnable April 10, 2012.
[22] Again, Mr. Sarasin did not consult with Ms. Tulloch as to this date, which then had to be adjourned to May 29, 2012 due to her unavailability. The defendants consented to a further six adjournments at the request of the plaintiffs, with Mr. Sarasin citing as a reason his difficulties in obtaining instructions from the plaintiffs.
[23] The motion was then adjourned a further five times on consent, at the request of the plaintiffs, to facilitate receipt of the Golder engineering report, which was not served until March 21, 2013, nearly three years after Golder was retained.
[24] Eventually, the repeated adjournments began to bite. On May 21, 2013, an associate from Mr. Sarasin’s office adjourned the motion from May 21, 2013 to July 23, 2013, a date which Ms. Tulloch had not agreed to, and on which she was not available. Mr. Sarasin then agreed to seek a further adjournment to August 20, 2013, when all counsel would be available. Ms. Tulloch had not been told, and Mr. Sarasin seemed unaware, that the adjournment to July 23, 2013 was peremptory; it was to be a final adjournment absent evidence of ‘circumstances that are extraordinary and are compelling presented in person.’ Ms. Tulloch became aware of the peremptory terms of the adjournment when she was sent a copy of the endorsement page from the Court Registry on July 29, 2013.
[25] A lawyer from Mr. Sarasin’s office spoke to the matter on July 23, 2013 to request the adjournment to August 20, 2013. Justice Leitch, noting the finality of the May 21, 2013 endorsement, required the plaintiffs to file an affidavit to speak to the compelling circumstances that would justify the further adjournment. She then adjourned to July 30, 2013 to provide an opportunity for plaintiffs to adduce this evidence.
[26] The matter came before Leach J. on July 30, 2013. Mr. Sarasin had been unable to attend and again sent another lawyer from his office, along with an affidavit from his assistant deposing that there were no extraordinary and compelling circumstances that would justify an adjournment, but that there had been some miscommunication among counsel and that none of them had recalled that the adjournment granted on May 21, 2013 was peremptory.
[27] Justice Leach was informed by counsel for the plaintiffs that the reason for the continued adjournments was to allow for time to pursue a resolution through the Ministry of the Environment, and that the judges granting previous adjournments (including the adjournment on May 21, 2013 said to be peremptory) had not been made aware of this. In order to keep faith with the terms of the May 21, 2013 order, and to give effect to what appeared to be a good faith attempt by all parties to resolve the dispute through the Ministry of the Environment, Leach J. struck the Dismissal Motion without prejudice to the plaintiffs bringing a new motion.
(iii) From striking the motion to the fresh motion
[28] Astonishingly, the plaintiffs did not take any further steps in the litigation for 14 months.
[29] The defendants understood the matter to be at an end; the Taggart defendants ceased prompting the plaintiffs to proceed.
[30] On Mr. Sarasin’s evidence, this period of inactivity on the litigation file was initially the result of the plaintiffs’ decision to focus on the pursuit of a remedy through the Ministry of the Environment. And then, once again, plaintiffs’ counsel failed to diarize the matter. On reviewing an associate’s files in August 2014 on the departure of that associate, the file once again came to Mr. Sarasin’s attention. He then delivered a fresh Notice of Motion to set aside the dismissal on October 3, 2014, returnable October 28, 2014. Once again, Mr. Sarasin did not canvass counsel’s availability, with the predictable result that counsel for the defendants was not available. Mr. Sarasin abandoned that motion and served a fresh Notice of Motion on October 28, 2014, returnable November 18, 2014. The hearing was traversed to a special appointment before me on April 15, 2015.
3. Analysis
[31] There are two sources of delay in this action. One is the entirely laudable effort to pursue a cost-effective solution outside of the courts, with the acquiescence of all parties. The other source is an amalgam of carelessness in file management, poor communication with opposing counsel, and disregard of a court ordered timetable.
[32] In considering whether to set aside the Registrar’s dismissal order it is necessary for me to keep in view the entirety of the procedural history of the action and not simply the period since the decision of Leach J. refusing the first motion to set aside.
[33] The test for setting aside a Registrar’s dismissal order is set out in Reid v. Dow Corning Corp.[^2], recently summarized by the Court of Appeal in Habib v. Mucaj:
[5] There are four well established factors to consider when deciding to set aside an order to dismiss an action: (i) explanation of the litigation delay – a deliberate decision not to advance the litigation will usually be fatal; (ii) inadvertence in missing the deadline– the intention always was to set the action down within the time limit; (iii) the motion is brought promptly – as soon as possible after the order came to the party’s attention; and (iv) no prejudice to the defendant – the prejudice must be significant and arise out of the delay: Reid v. Dow Corning Corp…
[6] No one factor is necessarily decisive of the issue. Rather, a “contextual” approach is required where the court weighs all relevant considerations to determine the result that is just.[^3]
[34] The test is not a formula. Its purpose is to guide the court to relevant considerations so as to reduce the possibility that the court will overlook some factor relevant to the exercise of its discretion. It is not meant to exclude the consideration of other relevant factors – and thereby risk arbitrarily truncating the analysis – or to be applied mechanically. No one factor is necessarily decisive. It is a structured inquiry in the service of justice. The four factors are the concretization of more general propositions of law, such as, on the one hand, the principles that civil actions should be resolved within a reasonable timeframe, that the public interest is served by promoting the timely resolution of disputes, and that civil actions should be decided on their merits.[^4]
[35] If the dismissal order stands, the plaintiffs will be denied a substantive hearing. It would not be appropriate, on the evidence before me, to speculate about whether the plaintiffs may have any other claim available to them.
[36] There is litigation delay, though not in the same category as, say, the 15 year delay in Hamilton (City) v. Svedas Koyanagi Architects Inc., supra. Neither is it the typical case where the dismissal occurred after a long stretch utter inactivity, and it must also be noted that since the time of dismissal, rule 48.14 of the Rules of Civil Procedure has been amended and actions now, as of January 1, 2015, are only to be dismissed for delay five years subsequent to commencement, rather than two years. Had the five year rule been in effect, this action would not have been dismissed until July 2, 2013.
[37] But the analysis cannot end there. There was a critical intervening step in the dismissal, in the setting of the Rady Timetable. The dismissal was not simply triggered by an inadvertent failure of the solicitor to diarize, which is the sort of slip that courts are typically willing to correct, lest plaintiffs be punished unduly for their solicitors’ moments of inattention. Further, and of unusual significance in this case, is the extraordinary motion delay, particularly of the second motion. These factors pull in favour of the defendants.
[38] I will address each of the factors in turn.
i) Explanation of litigation delay
[39] It is up to the plaintiff to explain the delay in the litigation that resulted in the dismissal. There is a public interest in seeing the timely resolution of disputes. This is not simply of interest to the immediate parties, but goes to maintaining public confidence in the legal system and, to that extent, its effectiveness.[^5] As stated by Sharpe J.A., ‘(l)itigants are entitled to have their disputes resolved quickly so that they can get on with their lives. Delay multiplies costs and breeds frustration and unfairness.’[^6]
[40] For the period up to January 2010, much had actually been done. This was not an instance of a statement of claim being filed and the plaintiffs quickly running out of gas. Examinations for discovery had been conducted, and some undertakings had been answered. The action was not ready to be set for trial, however, and the plaintiffs had in effect treated the decision to pursue a resolution through the Ministry of the Environment as excusing them from following through with the Rady Timetable. That attitude was not shared by the defendants, as evidenced by their conduct in answering their undertakings and continuing to prompt the plaintiffs to provide theirs or to seek amend the Rady Timetable.
[41] At this stage of the test, ‘if either the solicitor or the client made a deliberate decision not to advance the litigation towards trial then the motion to set aside the dismissal will fail’.[^7] Mr. McLean deposes that it was always his intention to proceed towards trial. A more complete statement would have been that it was always his intention to proceed to litigation if other remedies did not pan out, and he was reserving the right to revive the litigation on his timeline should it become necessary.
ii) Explanation for Missing the Deadline
[42] The second factor is meant to salvage those cases where the dismissal resulted from a mere slip or oversight, notwithstanding the plaintiff`s steady intention to proceed with the litigation. There must be an explanation for the inaction, and that explanation cannot be that the inaction was intentional or strategic.
[43] Recall that there was a timetable in place, and that the timetable was disregarded by the plaintiffs, and not merely in the ultimate failure to file the Trial Record. There were undertakings that were left unanswered. Counsel for the Taggart Defendants had reminded plaintiffs’ counsel of the timetable and the looming dismissal date. It is true that the Boettcher defendants had not filed their defence to the Taggart cross-claim, but the plaintiffs had known about this since they first unsuccessfully attempted to file the Trial Record, prior to the adoption of the Rady Timetable, and yet they did nothing to chase this down.
[44] The delay, better characterized as a decision not to proceed with the necessary steps, was deliberate in the sense that it was intentional rather than a slip. Although the resulting dismissal was not intended (in that the plaintiffs had forgotten about the possibility and failed to note the warning from the Taggard defendants), the delay leading to the dismissal was intentional.
iii) Was the motion is brought promptly?
[45] There is no question that the original motion to set aside was brought promptly. What is unusual in this case is the 3.5 years that have elapsed since the original motion was brought, and the plaintiff’s degree of responsibility for it.
[46] Even if the court could overlook the parade of adjournments that culminated in the dismissal of the original motion by Leach J., the 14 months of delay thereafter – a mixture of tactical choice and neglect – must be fatal to the motion now before me.
[47] The plaintiffs’ argument – that they were pursuing an alternative resolution – does not go the distance the plaintiffs suggest. There was no reason why, even if they were understandably and laudably committed to another process that promised to be more cost effective, they could not have moved, as the Taggart defendants suggested, to have the Rady Timetable amended.
[48] The defendants’ acquiescence in the pursuit of the Ministry of the Environment solution should not be overstated. They were content to adjourn steps for a time to pursue this option. But they were not prepared to write the plaintiffs a procedural blank cheque. They intended the litigation to be governed by the Rady Timetable, as evidenced by Ms. Tulloch`s letter of September 20, 2011, and they understood the Rady Timetable to be beneficial to them. The possibility of a resolution through the Ministry of the Environment was no doubt as attractive to them as it was to the plaintiffs. But they did not want to prejudice their ability to defend should that possibility not come to fruition. And eventually, it appears, the plaintiffs themselves lost faith in pursuing the Ministry of the Environment resolution.
[49] When Leach J. dismissed the motion without prejudice, it was not open to the plaintiffs to carry on as they had done before. The defendants’ reasonable expectation at that point was that the plaintiffs would either proceed with the motion immediately or they would abandon it. When they heard nothing in the following months, they quite reasonably concluded that the litigation was over.
[50] It was not open to the plaintiffs at that time to continue to prioritize the Ministry of Environment process to the exclusion of the litigation.
[51] At this point, the motion delay was a deliberate strategy, and one that was followed over the objection of the defendants, particularly the Taggart defendants. Whether the original delay in advancing the motion could have been excused, what happened thereafter cannot be: this is not ‘the kind of lapse or inadvertent mistake that the legal system can countenance’.[^8] Having disregarded the Rady timetable and been granted every possible indulgence from the court, the plaintiffs did not fulfill their obligation to move the litigation along. As in Giant Tiger, ‘(e)xcusing a delay of this kind would throw into question the willingness of the courts to live up to the stated goal of timely justice’[^9].
iv) Prejudice to the defendant
[52] It is presumed that delay in litigation prejudices the ability of the defendants to defend the action. Memories become less reliable over time. There is an increasing risk that witnesses become less sharp, or altogether unavailable. And there is an ongoing cruelty that parties experience when they are unable to bring matters for a timely and final resolution so that they may get on with their lives.
[53] It is up to the plaintiffs to rebut the presumption of prejudice.[^10]
[54] In this case, two of the three Boettcher defendants are elderly. They did not appear at the hearing of the motion, and live some distance away. They advised the court, by ordinary letter, that they took no position on the motion, and that they had been unaware that their missing pleading had not been filed by their former solicitor. Their former solicitor no longer practices law.
[55] The Taggart defendants, who have been the key movers of the litigation throughout, strongly oppose the motion. As a matter of prejudice, they point to the death of the defendant Taggart’s partner, John D. Carroll, on January 24, 2012. The parties disagree about the significance of the evidence that Mr. Carroll would have given, and the plaintiffs point out that even on the Rady Timetable, the trial would not have taken place prior to Mr. Carroll’s death. A better view, however, is that the defendants would likely have had the benefit of Mr. Carroll’s evidence but for the pace of the litigation from January 2010 forward, and the plaintiffs bear responsibility for that.
4. Conclusion
[56] All of the four Reid factors point to refusing the plaintiff’s motion. The most significant to this motion, because of the peculiar procedural history, is the motion delay.
[57] Delay of the kind chronicled above calls into question the willingness of courts to take their orders seriously; not simply, in this instance, the Rady Timetable, but the terms of the adjournments, and the defeated expectations of Leach J. (in concert with the defendants) that in granting the extraordinary indulgence of a without prejudice order the plaintiffs would have brought the new motion promptly.[^11] Overlooking or excusing this delay would be a step back from the Supreme Court of Canada’s expectation of a culture shift in litigation articulated in Hryniak v. Mauldin,[^12] a culture that is meant to promote timely access to civil justice.
[58] The motion to set aside the dismissal of the action is refused and the action stands dismissed.
[59] The defendants are to have their costs of this motion. If the parties are unable to agree on costs, I will receive brief written submissions from the defendants within 14 days of the date of the release of these reasons, and from the plaintiffs within 21 days.
“Justice B. W. Miller”
Justice B.W. Miller
Date: June 4, 2015
[^1]: Note that the Boettcher defendants advised that their former counsel had served a Defence to the Crossclaim to the other parties. As far as they knew, it had been filed. In fact it had not.
[^2]: Reid v. Dow Corning Corp. (2001), 11 C.P.C. (5th) 80 (Ont. Div. Ct.)
[^3]: Habib v. Mucaj, 2012 ONCA 880, [2012] O.J. No. 5946 (CA), paras. 5-6.
[^4]: Hamilton (City) v. Svedas Koyanagi Archictects Inc., 2010 ONCA 887, [2010] O.J. No. 5572 (CA) per Laskin J.A. at para. 22
[^5]: Marché D’Alimentation Denis Thériault Ltée v. Giant Tiger Stores Ltd., (2007) 2007 ONCA 695, 87 O.R. (3d) 660 (C.A.), para 25.
[^6]: Giant Tiger, para 25.
[^7]: Reid, para. 41.
[^8]: Giant Tiger, para. 31
[^9]: Giant Tiger, para. 32.
[^10]: Campbell v. L.E., [2014] O.J. No. 2187 (Sup. Ct.) (QL), para. 28.
[^11]: Giant Tiger, para. 32.
[^12]: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87