SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 04-CV-270598

STATUS HEARING: September 29, 2014
and January 27 and March 26, 2015

Re:

Maryann Madore and Andrea Madore by
her litigation guardian Leo Madore
Plaintiffs

v.

Metropolitan Toronto Condominium
Corporation No. 1228, John Torry, Jeff Roick,
Jorge Ovejero, Linda Wissink, Dennis Tew,
Matt Harrop and Stephen Centner
Defendants

BEFORE: Master Thomas Hawkins

APPEARANCES: Greg Marley for plaintiffs
F (416) 489-7794

Megan Mackey for defendants
F (416) 595-8695

REASONS FOR DECISION

Nature of Proceeding

[1] These are my reasons for decision on the contested status hearing of this action which hearing was completed on March 26, 2015. At that time I reserved my decision.

[2] This status hearing process began on February 19, 2014. At that time the registrar sent out a Status Notice: Action Struck From Trial List (Form 48 C.2) to counsel threatening to dismiss this action for delay within 90 days unless certain specified steps were taken or a judge or case management master ordered otherwise. This prompted defence counsel to request a status hearing. Defence counsel – not plaintiffs’ counsel – served and filed a status hearing request form in mid-May 2014.

[3] This action first appeared on my status hearing list for September 29, 2014. At that time it was typical for me to have about 20 or more actions on my list for a status hearing day. There is simply not enough time to conduct a proper contested status hearing on a regular status hearing day because of the number of actions on the list. Fortunately, in the vast majority of cases, the status hearings are not contested. Instead the parties often consent to a timetable order setting deadlines for all steps that remain to be taken before the action can be listed for trial, including a deadline for the plaintiff to list the action for trial. In other cases I would make such a timetable order in consultation with counsel.

[4] In this case defence counsel had prepared a status hearing record and wished a contested status hearing. On September 29, 2014, I therefore made an order timetabling the delivery of further materials for use at the contested status hearing and set January 27, 2015 as a special appointment for the contested status hearing of this action.

[5] The status hearing did not proceed on January 27, 2015. Form 48C.2 Status Notice: Action Struck from Trial List expressly warns the defendant that where the plaintiff is under a disability an action may not be dismissed for delay under rule 48.14 unless the defendant gives notice to the Children’s Lawyer or, if the Public Guardian and Trustee is litigation guardian of the plaintiff, to the Public Guardian and Trustee. Subrule 48.14(14) as it read before 2015 is to the same effect. This subrule provided as follows.

Unless the court orders otherwise, where the plaintiff is under a disability, an action may be dismissed for delay under this rule only if the defendant gives notice to the Children’s Lawyer or, if the Public Guardian and Trustee is litigation guardian of the plaintiff, to the Public Guardian and Trustee.

[6] Here the plaintiff Andrea Madore is a minor. Defence counsel did not give the Children’s Lawyer notice of the status hearing before January 27, 2015. I therefore adjourned the status hearing to March 26, 2015 in order for the Children’s Lawyer to be given notice of this status hearing. This was done.

[7] In the result, the Children’s Lawyer did not become involved with this status hearing because, as counsel for the Children’s Lawyer advised counsel in this action, the plaintiff Andrea Madore had a litigation guardian who was represented by counsel.

Governing Legislation and Legal Principles

[8] Rule 48.14 was extensively amended with effect from January 1, 2015. The amendments include transition provisions. The transition provision found in subrule (12) is applicable to this status hearing. Subrule 48.14(12) provides as follows.

If a status hearing in relation to a status notice was scheduled but not held before January 1, 2015, this rule, as it read immediately before that date, continues to apply to the matter.

[9] That was the situation in this action. The status hearing was scheduled for September 29, 2014 but not completed until March 26, 2015.

[10] Subrule 48.14(13) as it read immediately before January 1, 2015 governs the conduct of this status hearing. This subrule provides as follows.

At the status hearing, the plaintiff shall show cause why the action should not be dismissed for delay and,

(a) if the presiding judge or case management master is satisfied that the action should proceed, the judge or case management master may,

(i) set time periods for the completion of the remaining steps necessary to have the action placed on or restored to a trial list and order that it be placed on or restored to a trial list within a specified time,

(ii) adjourn the status hearing to a specified date on such terms as are just, or

(iii) if the action is an action to which Rule 77 may apply under rule 77.02, assign the action for case management under that Rule, subject to the direction of the regional senior judge,

(iv) make such other order as is just; or

(b) if the presiding judge or case management master is not satisfied that the action should proceed, the judge or case management master may dismiss the action for delay.

[11] Because of subrule 48.14(13) in this action the plaintiffs, not the defendants, have the onus of showing cause why this action should not be dismissed for delay.

[12] In Faris v. Eftimovski, 2013 ONCA 360, the Court of Appeal for Ontario heard an appeal from an order of a status hearing judge dismissing an action for delay. Tulloch J.A., who delivered the judgment of the court, said the following (at paragraphs 32 and 33).

[32] The plain wording of rule 48.14(13) makes clear that the onus is on the plaintiff to demonstrate why the action should not be dismissed for delay. The test, as stated by the status hearing judge in the case at bar, requires the plaintiff to demonstrate that there was an acceptable explanation for the delay and establish that, if the action were allowed to proceed, the defendant would suffer no non-compensable prejudice: Khan v. Sun Life Assurance, 2011 ONCA 650, at para. 1.

[33] Since the purpose of Rule 48 is to enable the court to control the pace of litigation and ensure that disputes are resolved in a time-effective manner, imposing the onus on the plaintiff to show cause why the action should not be dismissed for delay is fair. This court has held that the responsibility to move the action along lies chiefly with the plaintiff. Accordingly, the plaintiff also bears the consequences of conducting its action in a dilatory manner: see Wellwood v. Ontario Provincial Police, 2010 ONCA 386, 102 O.R. (3d) 555, at para. 48.

[13] 1196158 Ontario Inc. v. 6274013 Canada Limited, 2012 ONCA 544 is another decision on an appeal from an order of a status hearing judge dismissing an action for delay. Sharpe J.A., who delivered the judgment of the court, expressed himself as follows (at paragraphs 17 to 20).

[17] The civil justice system aims to resolve disputes fairly, on the merits and in a timely and efficient manner. The Rules of Civil Procedure provide that the rules are to be “liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits”: rule 1.04(1).

[18] Achieving that goal in cases involving dismissal for delay requires a careful balance of two fundamental principles. The first is that civil actions should, if possible, be decided on their merits and procedural rules should be interpreted accordingly. The second is that the procedural rules that aim to resolve disputes in a timely and efficient manner can only achieve their goal if they are respected and enforced.

[19] Time lines prescribed by the Rules of Civil Procedure or imposed by judicial orders should be complied with. Failure to enforce rules and orders undermines public confidence in the capacity of the justice system to process disputes fairly and efficiently. On the other hand, procedural rules are the servants of justice not its master. We must allow some latitude for unexpected and unusual contingencies that make it difficult or impossible for a party to comply. We should strive to avoid a purely formalistic and mechanical application of time lines that would penalize parties for technical non-compliance and frustrate the fundamental goal of resolving disputes on their merits. As Laskin J.A. stated in Finlay v. Paassen, 2010 ONCA 204, 101 O.R. (3d) 390, at para. 14: “the Rules and procedural orders are construed in a way that advances the interests of justice, and ordinarily permits the parties to get to the real merits of their dispute.”

[20] The challenge posed in cases involving dismissal for delay is to find the right balance between, on the one hand, the need to ensure that the rules are enforced to ensure timely and efficient justice and, on the other, the need to ensure sufficient flexibility to allow parties able to provide a reasonable explanation for failing to comply with the rules to have their disputes decided on the merits.

The Parties and Nature of Action

[14] The first plaintiff, Maryann Madore, is the wife of the third plaintiff, Leo Madore. The second plaintiff Andrea Madore is their daughter. She is still a minor. The adult plaintiffs are the owners of a unit in the 22 unit defendant condominium corporation Metropolitan Toronto Condominium Corporation No. 1228 (“1228”) located at 20 Niagara Street, Toronto.

[15] The defendants other than 1228 itself have all been members of the board of directors of 1228 at one point or another. They allege that they were not members of 1228’s board of directors when the incident of which the plaintiffs complain occurred.

[16] The plaintiff’s main complaint is that on May 25, 2002 an allegedly defective toilet in their unit overflowed and flooded their unit. This flooding damaged the hardwood flooring in the unit as well as the baseboards and some framing.

[17] The plaintiffs allege that 1228 took far too long to repair the flood damage to their unit. The plaintiffs themselves ultimately had an environmental assessment done of their unit and its air quality and the flood damage repaired at their own expense.

[18] Leo Madore says that the delays in having the flood damage to his unit repaired resulted in mould formation. This in turn caused his daughter Andrea Madore to suffer physical health issues which ultimately required an operation.

[19] The following is a history of this action from its inception on June 11, 2004 forward. This history does not deal with the status hearing of this action. I have outlined that aspect of the history of this action in paragraphs [2] to [7] above.

Date

Event

June 11, 2004

Plaintiffs have registrar issue a Notice of Application.

January 13, 2005

On consent Ducharme J. orders matter converted to an action. Pleadings are then exchanged. Plaintiffs seek compensation in excess of $700,000.

November 7, 2005

A mediation occurs at the defendants’ request. Action is not settled.

December 2, 2005 to August 9, 2007

Defendants’ counsel writes to the plaintiffs’ counsel eight (8) times in an effort to get the action moving.

February 11, 2008

The defendants instruct their counsel to move for an order dismissing the action for delay, which prompts the plaintiffs to agree to discovery dates.

September 10, 2008 and May 20, 2009

Discoveries of plaintiffs and one defendant are held.

January 13, 2009

Defendants serve and file a trial record.

March, 2010

Plaintiffs fail to respond to the trial office’s request for trial dates.

April, 2010

Action is struck off the trial list.

August 30, 2010

Defendants advise plaintiffs they will move to dismiss action for delay if action is not restored to trial list.

November 30, 2010

At the plaintiffs’ request and with the defendants’ consent, I order action to be restored to the trial list. The action is not actually restored to the trial list until January 3, 2012.

September 27, 2013

Action is struck off the trial list a second time.

February 19, 2014 to present

Plaintiffs have not taken any steps to restore action to the trial list or to move for an order permitting them to conduct additional examinations for discovery.

May 15, 2014

Defence counsel requests a status hearing.

Comments on History of Action

[20] This action is now over 11 years old. The plaintiffs’ main complaint of flood damage and mould formation in their unit began when a toilet overflowed on May 25, 2002, some 13 years ago.

[21] A review of the history of this action shows that time and again, it was defence counsel and not plaintiffs’ counsel that took the initiative in moving this action forward. The defendants initiated mediation, not the plaintiffs. The plaintiffs did not proceed to conduct any examinations for discovery until the defendants threatened to bring a motion to dismiss this action for delay. The defendants examined all three plaintiffs for discovery. Apart from examining a non-party former property manager for 1228 (Stacey Coolman) by way of written questions, the plaintiffs have so far examined for discovery only the defendant Stephen Centner, one of eight defendants.

[22] It was the defendants, not the plaintiffs, who served and filed a trial record in mid-January 2009.

[23] This action has been struck off the trial list twice, the first time in April 2010. I made an order on November 30, 2010 restoring this action to the trial list. However the action was not actually restored to the trial list until January 3, 2012 some 13 months later.

[24] This action was struck off the trial list a second time on September 27, 20133. The plaintiffs had not brought a motion for leave to restore this action to the trial list by the time the defendants requested a status hearing on May 15, 2014, over seven months later.

First Test: Explanation for Litigation Delay

[25] As Tulloch J.A. stated in Faris, supra, the first test a plaintiff must meet at a contested status hearing is to demonstrate that there is an acceptable explanation for the delay. Here this action was almost 10 years old when the status hearing process began on May 15, 2014.

[26] In my view, to be acceptable the explanation need not cover every single minute of delay. However it should explain most of the delay and certainly all periods of material delay.

[27] Pleadings in this action closed in April 2005. Affidavits of documents were exchanged in August 2008, some three years and three months later. The plaintiffs have not explained this significant delay in serving their affidavit or affidavits of documents.

[28] No examination for discovery of any of the eight defendants was conducted until May 20, 2009 over four years after the close of pleadings. At that time, only one defendant, Stephen Centner, was examined. The plaintiffs have not explained this delay.

[29] Around March 2010 the trial coordinator’s office called the plaintiffs’ lawyers and requested trial dates for this action. When the plaintiffs’ lawyers failed to respond, the trial coordinator struck this action from the trial list. The plaintiffs have not explained this failure to respond to the trial coordinator’s office.

[30] The plaintiffs’ lawyers did not bring a motion to restore this action to the trial list until November 30, 2010, seven months later. The plaintiffs have not explained this delay in bringing the motion to restore this action to the trial list.

[31] The plaintiffs’ lawyers say that the delay in examining the defendants other than Stephen Centner for discovery was due to the fact that defence counsel would not agree to further examinations for discovery of the defendants without a court order. I am not aware that the plaintiffs’ lawyers ever brought a motion for such an order. I am not aware that the plaintiffs’ lawyers ever served an appointment to examine any of the defendants other than Stephen Centner, obtained a certificate of non-attendance and then brought a motion for appropriate relief.

[32] On January 17, 2012 the trial coordinators’ office sent the plaintiffs’ lawyers a certification form to set trial and pre-trial dates for this action. This form contained a warning that unless a trial date was provided by November 30, 2012 this action would be struck form the trial list. Some 10 months later on November 18, 2012 the plaintiffs’ lawyers completed the plaintiffs’ part of the form and sent it to defence counsel. Defence counsel did not complete the defence part of the form. This prompted the plaintiffs’ lawyers to contact the trial coordinator’s office and request a status hearing, only to be told that it was then too late to request a status hearing. The trial coordinator struck this action from the trial list a second time on September 27, 2013.

[33] While the plaintiffs’ lawyers are not entirely to blame for the fact that this action was struck off the trial list a second time, they have failed to explain why they waited 10 months to complete the plaintiffs’ part of the form and send it to defence counsel for defence counsel to complete the rest of the form.

[34] As I have said, the court registrar sent out a Status Notice: Action Struck from Trial List (Form 48 C.2) on February 19, 2014 some 14 months after the plaintiffs’ lawyers requested a status hearing around November 30, 2012. The plaintiffs are not responsible for this delay.

[35] However, the plaintiffs’ lawyers did not request a status hearing after February 19, 2014. The plaintiffs have not explained why their lawyers failed to request a status hearing after February 19, 2014. It was the defendants’ lawyers who requested a status hearing on May 15, 2014.

[36] The plaintiff Leo Madore has sworn an affidavit in support of the plaintiffs’ position on this status hearing. In his affidavit Leo Madore says that this action is very personal to his family. He says that he has been personally involved with this action, chiefly in helping to draft written questions for Stacey Coolman and in looking for inconsistencies between her answers and Stephen Centner’s discovery answers and statements in the various documents that have been produced in this action.

[37] Leo Madore does not offer any direct explanation for the substantial litigation delay in this action, except for the following. He says that his lawyer told him that the level of cooperation received from defence counsel changed for the worse. Leo Madore does not say when this change took place.

[38] Leo Madore does not say that he complained to the plaintiffs’ lawyers about the delays in the prosecution of this action, or that he pressed the plaintiffs’ lawyers to move faster.

[39] In summary, while the plaintiffs have explained some of the delay and are not responsible for all of the delay, there are substantial periods of delay for which the plaintiffs have offered no explanation, let alone an acceptable explanation. The plaintiffs have therefore failed to meet the first test. This failure goes far beyond technical non-compliance with the timelines in the Rules of Civil Procedure.

Second Test: No Non-Compensable Prejudice to Defendants

[40] The second test which the plaintiff must meet is to demonstrate that if this action is allowed to proceed, the defendants would suffer no non-compensable prejudice. See Faris, supra, at paragraph 32.

[41] Faris, supra, does not state what form that non-compensable prejudice must take. In my view, the most important kind of prejudice is an impaired ability of the defendants to present their case at trial as a result of the plaintiffs’ delay, or as a result of steps taken by the defendants following the registrar’s dismissal of the action, or here, as a result of the registrar’s order striking this action from the trial list.

[42] The defendants’ position on this status hearing is supported by an affidavit of Myrna Copeland. She was the president and a director of 1228 at the time she swore her affidavit.

[43] Ms. Copeland deals with the subject of prejudice in her affidavit. She says that two of the defendants, namely Dennis Tew and Matt Harrop, no longer own units or live in 1228. She has no idea where they are. However, there is no evidence that they would give evidence at trial helpful to the defence or that any efforts have been made to locate them, or that they have died or become incapacitated and unable to testify.

[44] Another defendant, Jorge Ovejero, suffered a stroke several years ago. Ms. Copeland does not say that he is unable to testify at trial or that his evidence would be helpful to the defence. The death, disappearance or incapacitation of a witness harmful to the defence is not prejudice to the defence.

[45] Ms. Copeland says that this action must be disclosed to prospective purchasers of units in 1228. When this disclosure has been made in the past, several unit owners have had to reduce the selling price of their units in order to sell them. There is no evidence that any named defendant has had to reduce the selling price of his or her unit. This selling price reduction does not impair the ability of the defendants to present their case at trial.

[46] There is no evidence that the plaintiffs are in default of compliance with any order of this court.

[47] There is no evidence that following the order of the registrar striking this action from the trial list the defendants took any steps that have impaired their ability to present their case at trial. I refer to such steps as the destruction or discarding of documents helpful to the defence in the reasonable but mistaken belief that the plaintiffs had abandoned this action.

Disposition of Status Hearing

[48] In conclusion, because of the absence of evidence of actual prejudice, I am not prepared to dismiss this action for delay. I will allow this action to proceed. I believe that the defendants can be adequately protected by the imposition of the following terms. So ordered.

(a) The plaintiffs are given leave to restore this action to the trial list within 60 days. The plaintiffs must realize that this is a last chance order, and that, absent highly unusual circumstances, their failure to comply with this 60 day deadline will mean that a defence motion for an order dismissing this action with costs will likely succeed.

(b) Leo Madore says that the plaintiffs are prepared to waive their right to conduct further examinations for discovery of the defendants. That being so, another term of this order is that the plaintiffs are not to conduct any further examinations for discovery of the defendants.

(c) The plaintiffs are not to bring any motions relating to the examination for discovery of Stephen Centner or the written examination of Stacey Coolman.

(d) The defendants are at liberty to have an independent medical examination of the plaintiff Andrea Madore under Rule 33 on 14 days notice.

Costs

[49] The plaintiffs do not ask for costs. In disposing of this status hearing in the way that I have, I feel that I have given the plaintiffs 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) 285 (Ont. Dist. Ct.).

[50] I therefore order the plaintiffs to pay to the defendants the costs of this status hearing fixed at $6,000 within 45 days.

(original signed)__ __

Date: July 24, 2015 Master Thomas Hawkins