COURT FILE NO.: CV-10-412486
MOTION HEARD: JULY 3, 2015
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Ranjit Pabla
v.
Carissa Barbara Singh, Denise Singh and Phillip Addo
BEFORE: MASTER R.A. MUIR
COUNSEL: Aryan Kamyab for the plaintiff Sandi J. Smith for the defendants Carissa Barbara Singh and Denise Singh Phillip Addo in person
REASONS FOR DECISION
[1] The plaintiff brings this motion pursuant to Rule 37.14 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) for an order setting aside the order of the registrar dated October 1, 2014, dismissing this action for delay. The plaintiff is also seeking various other procedural relief in the event that the registrar’s order is set aside.
[2] This action was dismissed by the registrar due to the failure on the part of the plaintiff to comply with a status hearing order made by Master McAfee on March 21, 2013. Master McAfee’s order required that this action be set down for trial by September 30, 2014, failing which it would be dismissed by the registrar.[^1]
[3] The defendants are opposed to the relief sought by the plaintiff. The defendants Carissa Barbara Singh and Denise Singh (the “Singh Defendants”) filed a responding affidavit. Mr. Addo did not file responding evidence. Instead, he adopted and relied upon the evidence and submissions of counsel for the Singh Defendants.
[4] Counsel for The Wawanesa Mutual Insurance Company (“Wawanesa”) in a related action was present in court. Wawanesa’s counsel advised the court that Wawanesa took no position on the plaintiff’s motion.
[5] The third and fourth parties did not respond to the plaintiff’s motion and did not appear on the return date.
BACKGROUND
[6] This action arises from two separate motor vehicle accidents that took place on December 16, 2008 in the city of Mississauga. It appears that the plaintiff was stopped at a red light when she was hit from behind by a vehicle owned by the defendant Denise Singh and driven by the defendant Carissa Barbara Singh (the “Singh Vehicle”). A short time later, the Singh Vehicle was struck from behind by a vehicle driven and owned by Mr. Addo.
[7] The plaintiff’s statement of claim was issued on October 18, 2010. It was served on the defendants in November 2010. The defendants appointed counsel and pleadings were completed by February 2011.
[8] The plaintiff served a draft affidavit of documents in February 2011. The draft affidavit of documents included a significant number of liability and damages related documents. The documents included the accident report, accident benefits records, an OHIP summary, hospital records, physicians’ records, rehabilitation documents, insurance related documents and income tax returns.
[9] The plaintiff arranged for examinations for discovery to take place in December 2011. Those dates had to be cancelled due to coverage issues that had arisen between Mr. Addo and his insurer. Those issues were not resolved until January 2013 when Justice Whalen made a declaration that Mr. Addo was not entitled to coverage from his insurer.
[10] In October 2012, the Singh Defendants issued a separate claim against several municipalities alleging that improper road maintenance contributed to the accident. In February 2013, the Singh Defendants obtained an order from Master Glustein granting them leave to issue a third party claim in this action against the same municipalities named in their separate proceeding.
[11] A partial examination for discovery of the plaintiff appears to have taken place on March 14, 2013. The plaintiff attended at the examination. Only counsel for Mr. Addo appeared. She asked no questions given the prevailing coverage issues and her intention to obtain an order removing her firm as lawyers of record for Mr. Addo. The removal order was eventually made by me on April 23, 2013. Counsel for the Singh defendants did not attend the plaintiff’s discovery as it appears that the examination date was not cleared with her in advance and she was unavailable.
[12] A status hearing took place in March 2013. The status hearing order required, among other things, that examinations for discovery take place by September 30, 2013 and this action be set down for trial by September 30, 2014.
[13] In April 2013, the plaintiff issued a separate claim against Wawanesa, her own insurer. This claim was issued due to the coverage dispute between Mr. Addo and his insurer.
[14] In May 2013, the Singh Defendants discontinued their third party claim against two of the named third parties after an issue related to responsibility for the road maintenance was clarified. The remaining third party served its statement of defence in August 2013.
[15] It is important to note that throughout the summer of 2013 the plaintiff and the other parties were making serious efforts to schedule examinations. Various letters and other communications were exchanged. This process was complicated by the number of parties and proceedings involved. Eventually, the parties agreed to conduct examinations for discovery on April 1, 2014 and a mediation session on June 10, 2014.
[16] The lawyer with carriage of this matter for the plaintiff left the plaintiff’s law firm in January 2014. The new counsel with carriage reviewed this file in advance of the discovery date and learned that Mr. Addo had not been served with a notice of examination. The plaintiff’s lawyer then unilaterally cancelled the examinations for discovery. Attempts were then made to reschedule the examinations for discovery and the mediation session. The plaintiff’s lawyer also made what appear to be continuing efforts to locate Mr. Addo.
[17] On October 1, 2014, the registrar made an order dismissing this action for delay. The order was brought to the attention of the plaintiff’s lawyer by way of a letter from the Singh Defendant’s lawyer dated October 17, 2014. In that letter, the lawyer for the Singh Defendants stated that she intended to close her file within thirty days of that date and would likely oppose any effort to set aside the dismissal order.
[18] The plaintiff’s lawyer initially scheduled this motion for February 11, 2015. The motion was adjourned by the plaintiff in order to make further efforts to locate Mr. Addo. The plaintiff’s motion materials were then served in April 2015 and this motion was heard by me on July 3, 2015.
ANALYSIS
[19] The general test applicable to motions of this nature is well known. It is summarized in the decision of Master Brott in Pirone v. Tang, 2014 ONSC 6290 (SCJ – Master) at paragraphs 6 to 8. The court must apply a contextual analysis and consider all relevant factors. However, four factors are of central importance, generally referred to as the Reid[^2] factors. The court must consider the adequacy of the explanation for the delay, whether the deadline was missed due to inadvertence, any delay in bringing the motion to set aside the dismissal order and prejudice to the defendant. Of these factors, prejudice is the key consideration.
[20] In recent months, the Court of Appeal has released two decisions which appear to add some refinement to this test. The court has held that in most cases, the issue of prejudice figures largely in determining whether to set aside a dismissal for delay. See MDM Plastics Limited v. Vincor International Inc., 2015 ONCA 28 at paragraph 24.
[21] In addition, the Court of Appeal has emphasized that judges and masters should be mindful of the preference in our system of civil justice for the determination of disputes on the merits. This preference is more pronounced where the delay results from errors committed by counsel and not the parties themselves. See H.B. Fuller Company v. Rogers (Rogers Law Office), 2015 ONCA 173 at paragraphs 26 and 27. Ultimately, the court must consider all of the circumstances of each particular case and make the order that is just. See Fuller at paragraphs 21 to 23.[^3]
[22] These are the factors and principles I have considered and applied in determining the issues on this motion. My analysis leads me to the conclusion that it is in the interest of justice to set aside the dismissal order.
[23] It is obvious that the progress of this action has not been ideal. There has been some delay. However, it is my view that the chronology set out above demonstrates that very little of that delay can be attributed to the plaintiff. The primary reasons for the delay with this action are the issues involving Mr. Addo and his insurer and the necessity of adding additional parties and initiating separate proceedings.
[24] The plaintiff has served a draft affidavit of documents and provided a significant amount of production. The plaintiff has attended to be examined for discovery and is agreeable to attending again. The plaintiff has been reasonably diligent in attempting to schedule discoveries and mediation. The plaintiff has taken steps to ensure that all necessary parties are located and are part of this proceeding.
[25] It is true that there appears to have been some delay as a result of personnel changes in the office of the plaintiff’s lawyer and some miscommunication on the part of the plaintiff with respect to discovery dates. However, I do not view that delay as particularly significant in the circumstances of this action. This is not a situation involving a proceeding that has been ignored and forgotten for months or years at a time. It is clear from the documentary evidence provided that the plaintiff and her lawyer have been actively pursuing this action from the beginning. In fact, as late as September 25, 2014, six days before this action was dismissed, the plaintiff’s lawyers wrote to all other counsel expressing the plaintiff’s commitment to moving this action forward.
[26] The plaintiff’s explanation for the delay does not need to be perfect. It simply needs to be adequate. I am satisfied on the evidence that the plaintiff has met this element of the test.
[27] I am also satisfied that the failure to meet the set down deadline was inadvertent. The documentary evidence demonstrates an obvious effort on the part of the plaintiff’s lawyer to move this matter forward following the cancellation of the examinations for discovery in April 2014. Several attempts were made to reschedule the discoveries and mediation. As noted above, this effort continued as late as September 25, 2014. From all of this I infer that the failure to meet the set down deadline or seek an extension of time must have been inadvertent. No other explanation makes sense in the circumstances.
[28] I also accept that this motion was brought in a timely manner. This action was dismissed in October 2014 and this motion was initially scheduled for February 11, 2015, which would appear to be one of the first available dates for a motion of this nature. The motion was adjourned once and no materials were served until April 2015. However, I accept that this short delay was a result of the inability of the plaintiff to locate Mr. Addo. I do not view the relatively short delay in bringing this motion as significant in the circumstances. In my view, this factor has been satisfied.
[29] Finally, it is my view that the plaintiff has satisfied her onus with respect to prejudice. It appears from the documentary evidence that a great deal of medical and other evidence has been preserved and produced. I agree with the Singh Defendants that the evidence in relation to the production of recent medical evidence could be more robust. However, the evidence that has been provided covers a period of approximately two to three years post-accident. There is no suggestion that records have been lost or destroyed. The plaintiff remains available to be examined by way of oral discovery and in response to a request for a defence medical examination. I also note that the Singh Defendants indicated their willingness to proceed to discovery in correspondence delivered as late as September 29, 2014. From this I infer that the Singh Defendants could not have been too concerned about prejudice at that point in this proceeding. See the comments of the Court of Appeal in MDM Plastics Limited at paragraphs 32 to 39. It is also significant to note that the Singh Defendants have not provided any evidence of actual prejudice.
[30] When considering motions of this nature, the court must weigh all relevant factors and make an order that is just in the circumstances. The plaintiff has satisfied all of the Reid factors, including the key consideration of prejudice. The defendants have not suggested they will suffer any actual prejudice in term of their ability to defend this action at trial. The preference is our system of civil justice is for a determination of disputes on their merits. For the reasons set out above, I have concluded that it is just in the circumstances of this action that the dismissal order of the registrar be set aside.
EVIDENTIARY ISSUES
[31] I have come to this conclusion on this motion despite what I view as serious deficiencies with the plaintiff’s evidence. The only affidavit evidence filed by the plaintiff was an affidavit of a law clerk employed by the plaintiff’s lawyers. The affidavit was based on information and belief and largely failed to comply with the requirements of Rule 39.01(4). The record contained no direct evidence from the plaintiff, the lawyer with carriage or the lawyer who formerly had carriage of this matter. It was therefore necessary for the court to carefully review and consider the documentary evidence that was provided in order to be satisfied that the registrar’s order should be set aside.
[32] This is a serious matter. The plaintiff’s action has been dismissed by an order of the court. A motion to set aside such an order should not be taken lightly. The potential consequences are significant to the plaintiff and her lawyers.
[33] Moreover, the plaintiff’s lawyers should be fully aware of the evidentiary requirements on a motion of this nature. The reported decisions dealing with registrar’s dismissal orders are far too numerous to list. This is a well-travelled area of the law. In my decision in Dunn v. Best Built Doors Inc., 2011 ONSC 3843 (SCJ – Master) I set out a number of these evidentiary requirements with some particularity. I listed the elements at paragraph 32 of Dunn as follows:
the evidence should include an affidavit directly from the plaintiff or its representative;
the plaintiff’s affidavit should, at a minimum, contain evidence with respect to whether or not it was always his or her intention to proceed with the action and what instructions were provided to counsel in that regard;
the evidence should include an affidavit from the lawyer who was responsible for the action and, if applicable, any former lawyers who may have had responsibility for the action in the past;
direct evidence from counsel with carriage is to be preferred to evidence provided by an assistant or a clerk on an information and belief basis;
counsel responsible for the progress of the action should avoid arguing the motion – rather, the motion should be argued by another lawyer from the same office or, if necessary, by other counsel appointed by the responsible lawyer or his or her insurer;
counsel should be fully aware of the principles and factors applicable to such motions before preparing the supporting evidence;
at the very least, the supporting evidence should be carefully organized and should clearly and specifically address the applicable Reid factors, along with any other relevant factors;
statements made by deponents of affidavits should, wherever possible, be supported by documentary evidence;
the evidence should include a complete chronology of all steps taken to advance the litigation;
the evidence should identify the important witnesses and indicate whether or not they remain available to give evidence or whether their evidence has otherwise been preserved; and,
the evidence should indicate whether or not important documentary and physical evidence has been preserved.
[34] Most of this is simple common sense. It should come as no surprise to counsel. A careful marshalling of the evidence is in the interest of everyone involved in the civil justice system.
ORDER
[35] The court hereby orders as follows:
(a) the order of the registrar of October 1, 2014 is hereby set aside;
(b) Mr. Addo shall serve and file a notice of intention to act in person (Form 15C) by no later than August 31, 2015;
(c) this action and action CV-13-477517 shall be tried together or one after the other as the trial judge may direct;
(d) the parties shall confer and attempt to agree on an appropriate timetable order for the completion of the remaining steps in this action and the related action;
(e) any such consent timetable shall be provided to the court for its consideration and approval by no later than August 31, 2015;
(f) if the parties are unable to agree on such a timetable, the parties shall provide the court with written submissions by no later than August 31, 2015; and,
(g) if the parties are unable to agree on the issue of costs they shall provide the court with brief written submissions, also by August 31, 2015.
Master R.A. Muir
DATE: July 8, 2015
[^1]: The status hearing in this action was conducted pursuant to former Rule 48.14. That rule has now been amended effective January 1, 2015 to generally provide for an automatic dismissal of an action five years after a statement of claim is issued. The new rule is not applicable to this action as the dismissal order was made prior to the amendment of Rule 48.14 and as a result of non-compliance with Master McAfee’s status hearing order.
[^2]: Reid v. Dow Corning Corp., [2001] O.J. No. 2365 (S.C.J. – Master), reversed on other grounds [2002] O.J. No. 3414 (Div. Ct.).
[^3]: The parties did not bring these recent decisions to the attention of the court. No written argument was provided by either side. The plaintiff did not provide the court with any authorities.