ONTARIO
SUPERIOR COURT OF JUSTICE
Court file no. 74724/11
Date: 20150814
BETWEEN:
LUCY BOYADJIAN
Plaintiff
– and –
REGIONAL MUNICIPALITY OF DURHAM, THE CORPORATION OF THE TOWN OF AJAX, MATTHEW LAPENSEE and HEATHER LAPENSEE
Defendants
Kirkor Apel, for the plaintiff
Zohar Levy, for the defendants Regional Municipality of Durham and The Corporation of the Town of Ajax
Shanti Barclay, for the defendants Matthew Lapensee and Heather Lapensee
HEARD: April 28, 2015
Bale J.
Background
[1] This is a status hearing in relation to a status notice served by the registrar on May 30, 2014. The defendants’ position is that the action should be dismissed.
[2] The litigation arose from a trip and fall which occurred in September 2009. The action was commenced in September 2011. The individual defendants delivered their statement of defence in February 2012. In the covering letter accompanying the defence, counsel requested the plaintiff’s affidavits of documents, and production of a number of documents characteristically produced in personal injury actions. In March 2012, the municipal defendants served their statements of defence.
[3] In September 2012, the individual defendants served an unsworn draft affidavit of documents, and in November 2012, the municipal defendants did the same.
[4] Examinations for discovery were tentatively scheduled for October 2012, but were cancelled because of the unavailability of the individual defendants. The examinations were then rescheduled for February 2013.
[5] Despite numerous requests, the plaintiff did not deliver an affidavit of documents (or any of the requested documents) in time for the discoveries to proceed, with the result that the examinations were cancelled by counsel for the municipal defendants. In counsel’s letter advising plaintiff’s counsel of the cancellation, she said that she would not be providing any further dates for discoveries, until the plaintiff’s affidavit of documents, and Schedule A documents, had been produced.
[6] Throughout the balance of 2013 and early 2014, repeated requests were made for delivery of the plaintiff’s affidavit of documents. In January of 2014, following receipt of a letter from plaintiff’s counsel advising that he had been ill, counsel for the municipal defendants responded by saying that she was willing to agree to an extension until January 30, 2014.
[7] On January 31, 2014, counsel for the plaintiff served a draft affidavit of documents, with copies of the Schedule A documents, on counsel for the municipal defendants, but omitted to serve counsel for the individual defendants. Never-the-less, counsel for the individual defendants was aware, as of February 4, 2014, that the draft affidavit had been served on counsel for the co-defendants.
[8] On February 4, 2014, counsel for the municipal defendants wrote to counsel for the plaintiff requesting more legible copies of the plaintiff’s Schedule A productions, and confirmation that “there are no further medical records or damages documentation to be provided”. On May 22, 2014, counsel for the individual defendants wrote to counsel for the plaintiff requesting a copy of the draft affidavit of documents, and legible copies of the Schedule A productions.
[9] On March 31, 2014, counsel for the municipal defendants wrote to counsel for the plaintiff requesting that further documents be produced, and asked that he contact her assistant to advise of his availability for examinations for discovery. On May 7, 2014, counsel for the municipal defendants wrote again to counsel for the plaintiff requesting the additional productions and asking that he “either take the necessary steps to pursue [his] client’s claim in a timely fashion, or dismiss the action if your client is no longer interested in this matter.”
[10] On May 30, 2014, the registrar issued a status notice. At this point, the parties were at a standstill because counsel for the defendants considered the draft affidavit of documents served by the plaintiff to be incomplete, and were unwilling to schedule examinations for discovery until further production had been made.
[11] On August 26, 2014, counsel for the plaintiff wrote to the local registrar requesting a status hearing. A status hearing was then scheduled for October 23, 2014.
[12] On October 17, 2014, counsel for the plaintiff wrote to counsel for the defendants requesting that a consent timetable be reached. However, counsel for the defendants preferred to argue for a dismissal of the action, and were unwilling to agree to a timetable. The status hearing was then adjourned from October 23, 2014, to December 11, 2014, and then again to April 28, 2015.
Dismissal of action for delay – rule 48.14
[13] Effective January 1, 2015, former rules 48.14 and 48.15 were revoked, and a new rule 48.14 came into force. The major change between the former and new rule 48.14 is that under the new rule, rather than serving a status notice two years after the first defence is filed, the registrar is required to dismiss an action for delay, without notice, by the later of the fifth anniversary of the commencement of the action, and January 1, 2017. A party may, however, at least 30 days before the expiry of the five-year period, bring a motion for a status hearing.
[14] Subsections (11), (12) and (13) of new rule 48.14 contain transition provisions. Pursuant to the transition provisions, every status notice served under the old rule ceased to have effect on January 1, 2015, unless the action was dismissed before that date, or a status hearing was scheduled but not held, before that date. If, as in the present case, a status hearing was scheduled but not held before that date, the former rules continue to apply.
[15] As the potential dispositions at a status hearing under the old and new rules are substantially the same, the effect of the old rule continuing to apply would appear to be simply that the already scheduled status hearing remains scheduled, and that the plaintiff must, at that status hearing, show cause why the action should not be dismissed for delay. However, although the procedure under the former rule continues to apply, in considering whether to dismiss an action for delay at a status hearing scheduled under the old rule, and in particular, in considering the length of the delay, the court should, in my view, take into consideration the fact that the period within which a plaintiff must now set his or her action down for trial has been significantly lengthened.
Disposition
[16] For the following reasons, I am of the view that the action should be permitted to proceed.
[17] First, no actual prejudice to the defendants has been demonstrated, and in the circumstances of this case, I have no concerns that the three-year delay will have a negative impact on trial fairness. The plaintiff alleges that she broke three fingers as a result of a trip and fall. There were no witnesses to the accident. Although in the statement of claim, the damages claimed are much broader, counsel for the plaintiff stated at the hearing, on the record, that the only damages being pursued are for pain and suffering related to the injury itself, and a short period of loss of enjoyment of life.
[18] Second, if the plaintiff had not requisitioned a status hearing, and her action had not been dismissed as of January 1, 2015, she would have had until March of 2017 to set her action down for trial. While the transition provisions of the new rule required that the already scheduled status hearing proceed under the former rule, the policy implemented by the new rule is a valid consideration in determining the seriousness of the plaintiff’s delay to date. Given the relatively short period of the delay, the defendants might have been well-advised to agree to a consent timetable to move the action forward.
[19] Third, while the delay in providing the plaintiff’s affidavit of documents is inexcusable, it was delivered on January 31, 2014. As noted above, the parties were thereafter at a standstill, because counsel for the defendants considered the affidavit of documents served by the plaintiff to be inadequate, and were unwilling to schedule examinations for discovery, until further production had been made. While the defendants’ position was entirely reasonable, they had a remedy: they could easily have moved under rule 30.06 for an order for service of a further and better affidavit of documents, or for an order for the disclosure or production of the additional documents that they required. While I acknowledge that the plaintiff bears primary responsibility for the progress of a law suit, a motion to compel further production is available to both plaintiffs and defendants, and is hardly unusual.
[20] As of the date of hearing, none of the parties had served a sworn affidavit of documents in accordance with rule 30.03. There will therefore be an order that each of the parties do so within 45 days of today’s date. Without prejudice to a motion by any party under rule 30.06, there will be a further order that the plaintiff produce, within the same period of time, copies of the following documents: (1) a list of decoded OHIP services from three years pre-accident forward; (2) copies of the clinical notes and records of all health care providers from which she has received treatment from three years pre-accident forward; and (3) copies of her collateral benefits files from three years pre-accident forward. Finally, there will be an order under subrule 50.02(3) that a pre-trial conference be held within 90 days of the date of this order. In order to facilitate the scheduling of the conference, a copy of this order shall be delivered to the trial coordinator at Oshawa.
[21] Given my disposition of the defendants’ request that the action be dismissed for delay, it is appropriate that the costs awarded reflect the fact that the relief granted is along the lines of the relief available under rule 30.06, on a motion for a further and better affidavit of documents. The defendants will therefore have their costs of the status hearing, in the case of the individual defendants, in the sum of $1,500, and in the case of the municipal defendants, in the sum of $1,000.
“Bale J.”
Released: August 14, 2015
Court file no. 74724/11
Date: 20150814
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LUCY BOYADJIAN
Plaintiff
– and –
REGIONAL MUNICIPALITY OF DURHAM and others
Defendants
ENDORSEMENT
Bale J.
Released: August 14, 2015