SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 08-CV-357873
MOTION HEARD: January 28, 2015

Re: Elias Polihronakos

Plaintiff

v.

Michael Anselm

Defendant

BEFORE: Master Thomas Hawkins

APPEARANCES:
William G. Scott for moving plaintiff
F (416) 869-0271

David Wong for responding defendants
F (416) 512-2012

REASONS FOR DECISION

Nature of Motion

[1] This is a motion by the plaintiff for an order setting aside the order of the registrar of January 6, 2011 dismissing this action for delay. The plaintiff commenced this action for damages as a result of injuries which he sustained in a motor vehicle accident on July 19, 2006 in Mississauga.

[2] The 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.

[3] The plaintiff is a party affected by an order of a registrar.

[4] Before I discuss the history of this action, I wish to make it clear that references to the plaintiff’s lawyers in these reasons are not references either to Mr. Scott, who argued this motion for the plaintiff, or to his firm. Before Mr. Scott and his firm became involved with this motion, the plaintiff was represented by another law firm.

[5] As I have said, this action arises out of a motor vehicle accident which occurred in Mississauga on July 19, 2006. The plaintiff’s lawyers wrote to the defendant on June 19, 2007 putting him on notice of the plaintiff’s claim.

[6] The statement of claim was issued on June 27, 2008 and served shortly thereafter. The action proceeded through the pleadings stage. Affidavits of documents were exchanged. Examinations for discovery for both sides were conducted on April 29, 2009. The plaintiff underwent a defence independent medical examination by an orthopedic surgeon on May 25, 2010. The action proceeded to an unsuccessful mediation on September 30, 2010.

[7] This motion is supported by an affidavit from one of the plaintiff’s lawyers whom I will call lawyer D.C.. This affidavit is 83 paragraphs long and has 71 exhibits. The affidavit describes in great detail the history of the action and the correspondence which the plaintiff’s lawyers sent and received in the course of this action. Much of this correspondence deals with efforts which the plaintiff’s lawyers made to collect information and documents in support of the plaintiff’s claim.

[8] Lawyer D.C. says that after the mediation failed he intended to set this action down for trial but that owing to inadvertence, he failed to diarise a deadline for doing so as was his standard diarizing practice at the time. The action was never set down for trial.

[9] On September 20, 2010 the court registry issued a status notice in this action. Lawyer D.C. says that neither her nor his form received a copy of this status notice and therefore were unaware of any pending dismissal of this action. This is disputed.

[10] On January 6, 2011 the registrar issued an order dismissing this action for delay. Lawyer D.C. was aware of this order at least as early as January 27, 2011 when he wrote to defence counsel requesting their consent to an order setting aside the registrar’s dismissal order. Defence counsel wrote back on February 10, 2011 advising that they would consent to a motion to restore the action “on the undertaking from your office that you will list the action for trial forthwith.” Lawyer D.C. says that he felt he could rely on this consent going forward but that through inadvertence, he failed to give this matter priority and did not move in a timely manner to schedule a motion date.

[11] There was another exchange of correspondence in October, 2011. Defence counsel then wrote lawyer D.C. advising that if lawyer D.C. immediately listed the case for trial upon the court restoring the action, defence counsel would consent. Lawyer D.C. did not then bring any motion.

[12] The motion record for the present motion was not served until May 8, 2014. The motion was returnable May 26, 2014. It was then transferred to the long motions list. It was argued before me on January 28, 2015 at which time I reserved judgment.

Legal Test for Setting Aside Registrar’s Dismissal Order

[13] In Scaini v. Prochnicki, 2007 ONCA 63, 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.

[14] At 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.

[15] Because 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.

First Reid Criterion

[16] The first Reid criterion may be expressed as follows.

Has the plaintiff provided a satisfactory explanation for the litigation delay?

[17] This explanation must cover all delays in the prosecution of this action from its inception on June 27, 2008 forward.

[18] Applying a contextual approach to this motion involves in part recognition of the fact that effective January 1, 2015, (a few weeks before this motion was argued on January 28, 2015) rule 48.14 was extensively amended. Rule 48.14 is the rule which, before it was amended, gave the registrar authority to dismiss this action for delay on January 6, 2011.

[19] As amended, rule 48.14 now directs the registrar to give plaintiffs substantially more time to set their actions down for trial or otherwise terminate them than was previously the case. What is now an acceptable level of due diligence in the prosecution of an action is a much easier test to meet. Had amended rule 48.14 been amended with retroactive effect to a date before January 6, 2011, the plaintiff would have had until January 1, 2017 to set this action down for trial. However rule 48.14 was not amended with retroactive effect.

[20] To express the same basic point another way, because of the amendments to rule 48.14, it is now much easier to meet the first Reid criterion than in the past.

[21] Nevertheless, I consider the passage of these amendments to rule 48.14 and their practical consequence of giving plaintiffs substantially more time to set their actions down for trial before the registrar dismisses their actions for delay to be part of the context in which I should decide this motion.

[22] I have considered the history of this action as set out in the affidavit which lawyer D.C. swore in support of this motion. (That history is partially summarized in paragraphs [5] and [6] above.) Having done so, I am of the view that this action was satisfactorily prosecuted until the completion of the failed mediation of this action on September 30, 2010. At that point things went off the rails.

[23] Lawyer D.C. failed to set this action down for trial. He offers several explanations for this failure. First, he says that he failed to diarise a deadline for setting this action down for trial. Secondly, he says that between 2009 and 2012 he had a case load of from 250 to 300 files in addition to numerous other responsibilities at his firm. It took him some time to realize that this file load and his other firm responsibilities were completely unsustainable. He eventually requested and got permission to reduce his file load and transfer files to other lawyers. He does not say just when this happened. He does say that between January 2011 and September 2013, he overlooked prosecution of this action in favour of other priority issues. Finally, lawyer D.C. says that he always intended to proceed with the plaintiff’s claim.

[24] The plaintiff himself has sworn an affidavit in support of this motion. He states that it has always been his intention to proceed with this action. He also says that he was in contact with the office of lawyer D.C. from time to time and understood that his action was proceeding in the normal course. Finally, he says that he has instructed his lawyers to proceed with a motion to set aside the registrar’s dismissal order.

[25] To repeat myself, I am satisfied that his action was satisfactorily prosecuted until just after the failed mediation of September 30, 2010. There is no evidence that lawyer D.C. or anyone at his firm ever made a conscious and deliberate decision not to prosecute this action. There is no evidence that the plaintiff ever instructed his lawyers not to prosecute this action.

[26] Lawyer D.C. has explained the delay in the prosecution of this action in the limited sense that I now know why this delay occurred. However the overall delay is so great that the explanation is not fully satisfactory. I therefore conclude that the plaintiff has not fully met the first Reid criterion.

Second Reid Criterion

[27] I now turn to the second Reid criterion. In the context of the facts before me, that criterion may be expressed as follows.

Has the plaintiff led satisfactory evidence to explain that lawyer D.C. always intended to set this action down for trial within the time limits set out in rule 48.14 but failed to do so through inadvertence?

[28] In my view, one 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.

[29] Some of the cases describe this attitude as contumacious or stubbornly disobedient behaviour. I do not regard lawyer D.C. as a stubbornly disobedient person. As I have said, there is no evidence that the plaintiff himself instructed lawyer D.C. to delay the prosecution of this action.

[30] The plaintiff is not in default of any order of this court.

[31] In paragraph [23] above I have set out the various reasons why lawyer D.C. failed to set this action down for trial. In my view the various explanations which lawyer D.C. has offered clearly amount to inadvertence. The evidence that lawyer D.C. always intended to proceed with this action is not challenged. The plaintiff has met the second Reid criterion.

[32] This brings me to the third Reid criterion. This criterion may be expressed as follows.

Has the present motion been brought promptly?

[33] In argument before me, Mr. Scott conceded that this motion was not brought promptly.

[34] In the excerpts from his decision in Scaini which I have set out in paragraph [14] above, Goudge J.A. makes it clear that the failure to meet all four Reid criteria is not invariably fatal to the success of a motion like the present one. Mr. Scott submitted that I should take a contextual approach to the third Reid factor. Here that contextual approach involves a consideration of (a) why this motion was not brought promptly, (b) how extensive the delay was, (c) whether the defendant has been prejudiced by the delay in bringing this motion, and (d) the fact that more than once, defence counsel advised lawyer D.C. that he would consent on terms to a motion to set aside the registrar’s dismissal order. The terms were that the set aside motion be brought and the action be set down for trial immediately thereafter.

[35] Here the reasons why this motion was not brought promptly are largely the same as the reasons why the action was not listed for trial after mediation, which reasons I have set out in paragraph [23] above.

[36] There are additional reasons. Lawyer D.C. says that he believed that he could rely, going forward, on the consent of defence counsel to the set aside motion. That consent was never formally withdrawn before the present motion record was served, although in argument defence counsel has opposed this motion.

[37] Another reason for the delay in bringing this motion is that lawyer D.C. did not bring this motion himself. He reported this situation to his insurers. In my experience this usually delays matters for several months. Here the insurers decided to appoint repair counsel. Repair counsel had to interview lawyer D.C. and the plaintiff and then prepare and serve motion materials. The extensive motion materials which I have described in paragraph [7] above could not be drafted overnight.

[38] Finally, this motion was adjourned and transferred to the long motions list. This invariably delays matters to some degree, compared with the waiting time required to get a short motion heard. This motion properly belongs on the long motions list.

[39] In summary, the reasons why lawyer D.C. did not bring this motion promptly do not amount to stubbornly disobedient behaviour as regards the need to move promptly or to a conscious decision to delay bringing this motion and to flout the Rules of Civil Procedure, or to disobey an order of this court. Much of the delay has been explained. Once again, the inadvertence of lawyer D.C. is a major part of the reason for the delay. The length of the delay, while significant, is not so great that I should dismiss this motion on the ground of delay in bringing this motion, regardless of whether the defendant has been prejudiced. I do not believe that the defendant has been prejudiced by the delay in bringing this motion because at least twice, his lawyers advised lawyer D.C. that they would consent to this motion (albeit on terms) and never withdrew that consent before the plaintiff served the present motion record.

[40] I am therefore not prepared to dismiss this motion on the sole ground that the plaintiff has failed to meet the third Reid criterion.

[41] This brings me to the fourth Reid criterion. To my mind, this criterion is the most important of the four criteria. This criterion may be expressed as follows.

Has the defendant suffered any significant prejudice in presenting his case at trial as a result of the plaintiff’s delay in the prosecution of this action or as a result of steps taken following the registrar’s dismissal of this action?

[42] The plaintiff has the onus of persuading me that the defendant has not suffered such prejudice. That said, in most motions like the present one, as between the plaintiff on the one hand and the defendant on the other, the defendant has the better means of knowledge as to whether he has suffered prejudice.

[43] I have mentioned that the plaintiff’s lawyers wrote to the defendant on June 19, 2007 (some 11 months after the accident) putting him on notice of the plaintiff’s claim. This early notice gave the defendant an opportunity to take measures to defend this claim and this action.

[44] One of the defendant’s lawyers has sworn a 35 paragraph affidavit in opposition to this motion. This affidavit addresses the subject of actual prejudice to the defence by quoting from a letter of October 26, 2011 which one of the defendant’s lawyers wrote to lawyer D.C.. That letter states in part;

“OHIP records have been destroyed. Employment records have been destroyed. Custodians of those records have died or disappeared.”

[45] Neither the letter nor the defence affidavit identifies (a) what specific records have been destroyed, or (b) what custodians of records have died or disappeared. Neither the letter nor the affidavit states that (a) the destroyed records have not been produced by either side, and (b) there is no replacement custodian of records.

[46] The plaintiff’s affidavit of documents lists in schedule “A” a decoded OHIP summary from 2002 to 2010 (four years pre-and post-accident) as well as employment files from three of the plaintiff’s employers. Neither the defence affidavit nor the October 26, 2011 letter states that the OHIP summary and/or the employment files as produced by the plaintiff are incomplete.

[47] The October 26, 2011 letter also states in part,

“.. the only actual true eyewitness to the accident is James Anselm, then a 15 year old boy …”. (I read this letter as meaning that James Anselm is the only true eyewitness in addition to the plaintiff and the defendant.) Neither the letter nor the defence affidavit states that James Anselm (who is the defendant’s son) is no longer available to testify.

[48] I can give this evidence of actual prejudice no material weight for two reasons. First, the October 26, 2011 letter also states that the defence counsel will consent to an order restoring this action on terms. I do not believe that defence would have made this offer if, up to October 26, 2011, the defendant had suffered material actual prejudice in defending this action owing to the plaintiff’s delay. Secondly, there is no evidence that since October 26, 2011 there has been any development prejudicial to the defence of this action.

[49] In conclusion, Mr. Scott has convinced me that the defendant has not suffered and will not suffer such prejudice in presenting his case at trial or such prejudice as a result of steps taken following the registrar’s dismissal of this action that this motion should be dismissed.

[50] The delays in the prosecution of this action are not so egregious that this motion should be dismissed regardless of whether the defendant has suffered prejudice.

[51] In my view the plaintiff has met the fourth Reid criterion.

Balancing Exercise

[52] Finally I must balance the interests of the parties. If this motion is dismissed and the allegations in the statement of claim are true the plaintiff will suffer prejudice. Because the registrar dismissed this action with costs, if this motion is dismissed the plaintiff must pay those costs to the defendant. Since this action is almost ready to be set down for trial those costs would be substantial. In some cases where the court has dismissed a motion like the present one, the court has said that the plaintiff will not be without a remedy because the plaintiff can sue her or his negligent lawyer. In other cases the courts have cautioned against speculating as to whether the plaintiff has such a remedy. At the very least, if the plaintiff’s motion is dismissed and he is left to start a new action, the day he receives compensation will be delayed for several years.

[53] I must also consider whether the defendant will be prejudiced if this motion is granted. In that event, I am of the view that the defendant will not be prejudiced because on the evidence before me he can still present his case at trial.

Conclusion

[54] This motion is therefore granted. The registrar’s dismissal order of January 6, 2011 is set aside. The time for the plaintiff to set this action down for trial is extended to 90 days from the final disposition of this motion. This may seem like a very generous time extension. However, my experience in other motions has been that even diligent lawyer experience considerable delays in getting formal orders issued and entered by court staff.

Costs

[55] Mr. Scott did not ask for costs. In granting this motion despite the considerable delays, I have given the plaintiff a significant indulgence. The price of an indulgence is the payment of the costs of those who have sought, unsuccessfully, to prevent its being granted. See Fox v. Bourget (1987), 17 C.P.C. (2d) 94 (Ont. Dist. Ct.). I therefore award the costs of this motion, fixed at $4,300, to the defendant and order the plaintiff to pay such costs to him within 30 days.

(Original signed)______

Date: July 6, 2015
Master Thomas Hawkins