SUPERIOR COURT OF JUSTICE – ONTARIO

Court File and Parties

COURT FILE NO.: CV-10-401317

MOTION HEARD: May 22, 2015

Re: MIHA HALIK AND ESTATE OF HIS MOTHER

TEREZIJA DRAZIC

Plaintiff

v.

CHIEF OF THE TORONTO POLICE WILLIAM BLAIR,

TORONTO POLICE SERVICES BOARD AND HER

MAJESTY THE QUEEN IN RIGHT OF ONTARIO

Defendants

BEFORE: Master Lou Ann M. Pope

Appearances

Miha Halik, self-represented moving party (will be picked up

at 393 University Ave, 6th floor, Masters’ Counter)

Matthew Cornett, City Solicitor’s Office, City of Toronto, for defendants, Chief of the Toronto Police William Blair and Toronto Police Services Board

Fax: 416-397-5624

Jeremy Glick, Ministry of the Attorney General, Crown Law Office – Civil, for defendant, Her Majesty the Queen in right of Ontario

Fax: 416-326-4181

REASONS FOR ENDORSEMENT

[1] The plaintiffs seek an order setting aside the Registrar’s dismissal order dated October 1, 2013 which was issued pursuant to former Rule 48.14(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

Background

[2] The plaintiff, Miha Halik (“Halik”), alleges that he and his mother, the plaintiff, Terezija Drazic, deceased, were the victims of a series of violent crimes committed against them by Glenn Cooper (“Cooper”), a janitor in their condominium building where they resided. The plaintiffs laid private informations in April 2007 which resulted in Cooper being charged with assault causing bodily harm. The Crown assumed carriage of the prosecution. Halik alleges that the police then intimidated he and his mother on behalf of the accused in an attempt to prevent them from testifying. Cooper was subsequently acquitted at trial on March 17, 2008.

[3] The plaintiffs’ claim as against Her Majesty the Queen (“Ontario”) relates to the alleged conduct of Donna Armstrong, a Crown Attorney, and Fred Braley, at the time the Director of Crown Operations for Toronto. Halik alleges that Ms. Armstrong accused him of causing the problems which gave rise to the criminal prosecution. The plaintiffs complained about that statement to Mr. Braley. Halik alleges that Ms. Armstrong remained on the file, which he says was not a coincidence, and that she had been informed of their complaint about her and “reacted in vindictive retaliatory manner”. (Amended Statement of Claim at para. 39) Halik alleges that she did not assist them when they complained about the intimidation by the Toronto Police. As a result, he alleges they were not able to be effective witnesses and the accused was acquitted in a “sham” trial.

[4] As summarized by Brown J. in her Endorsement dated September 23, 2013, the plaintiffs allege in the amended statement of claim that the defendants were negligent in their investigation, withheld services and violated their Charter Rights, ss. 7, 8, 9, 10(1), 10(b), 12 and 15. They allege negligence in the investigation of the alleged assault by Cooper on them. They further allege that the police terrorized, intimidated and assaulted them and subjected them to unauthorized searches of their home on the eve of the trial of Cooper, thereby bringing the administration of justice into disrepute, and also after Cooper’s acquittal. Halik further alleges that the police strip searched him and arrested him for assault of Cooper’s girlfriend. The plaintiffs allege that the police conducted their investigations and prosecutions in bad faith.

[5] Halik commenced this action on his own behalf and on behalf of his deceased mother. It is not known Mr. Halik’s legal capacity to bring this action on behalf of his mother’s estate. He seeks general, exemplary and punitive damages and damages for breach of their Charter rights in the amount of $40 million dollars.

Litigation History

April 16, 2010 Notice of Action issued

May 14, 2010 Statement of Claim filed

October 15, 2010 Notice That Action Will Be Dismissed as abandoned (Form 48E) issued by the Registrar pursuant to rule 48.15 (as no defence had been filed and plaintiffs had not obtained judgment or disposed of the action within 6 months of action being commenced)

October 18, 2010 Order permitting plaintiffs to amend notice of action and statement of claim by deleting numerous named defendants, including detectives, crown attorneys, and police constables

October 27, 2010 Amended statement of claim served on Toronto Police Services Board and William Blair (“Toronto defendants”)

November 16, 2010 Notice of Intent to Defend filed by Toronto defendants; defence counsel requested an extension of time to file a defence and to not note the Toronto defendants in default without notice

April 14, 2011 Notice of Intent to Defend filed by Ontario

November 19, 2012 Status Notice issued by Registrar pursuant to rule 48.14(1)

February 11, 2013 Plaintiffs noted the defendants in default

May 22, 2013 Plaintiffs filed motion seeking default judgment against defendants

September 23, 2013 Plaintiffs’ motion for default judgment dismissed by Brown J. for lack of evidence

October 1, 2013 Action dismissed for delay by Registrar’s order pursuant to rule 48.14(1)

July 10, 2014 Plaintiffs filed motion to set aside registrar’s dismissal order returnable July 21, 2014; motion date vacated as plaintiffs failed to file notice of motion within 10 days after the motion date was requisitioned

October 30, 2014 Plaintiffs filed motion appealing the decision of Brown J. and to set aside registrar’s dismissal order of October 1, 2013 returnable November 5, 2014.

November 5, 2014 Master Muir dismissed the motion appealing Brown J.’s decision for lack of jurisdiction, adjourned the balance of the motion to set aside Registrar’s dismissal order to March 23, 2015 and ordered the plaintiffs to serve the motion record and Master Muir’s endorsement on all defendants

March 13, 2015 plaintiffs served their motion materials

March 23, 2015 Plaintiffs’ motion adjourned to May 22, 2015 due to Halik’s medical issue and Ontario also seeking an adjournment.

May 22, 2015 Motion hearing

Status of Action

[6] This action was only at the pleadings stage at the time it was dismissed on October 1, 2013. By that time, the defendants had delivered notices of intent to defend; however, the time had expired to file statements of defence.

[7] The registrar issued a Status Notice in November 2012, which stated that the action would be dismissed for delay unless certain steps had been taken within 90 days. Three months later Halik noted the defendants in default on February 11, 2013. Over three months thereafter, and six months after the Status Notice was issued, Halik filed a motion for default judgment in May 2013. Brown J. dismissed the motion for default judgment on September 23, 2013 on the basis of lack of evidence. The action was dismissed for delay a week later on October 1, 2013 by the Registrar.

[8] Over nine months after the action was dismissed, Halik filed a motion to set aside the dismissal order; however, the date was vacated by the Court due to Halik failing to file a notice of motion. Three months later, Halik brought a second motion to set aside the dismissal order; however, because he had not served the motion material on the defendants, the motion was adjourned. It was adjourned a second time and ultimately heard on May 22, 2015.

Law

[9] Prior to the amendments to the Rules of Civil Procedure effective January 1, 2015, Rule 48.14(5) provided that the registrar shall dismiss an action for delay if an action is not set down for trial, restored to a trial list or terminated by any means within the time specified in an order made at a status hearing.

[10] Subrule 48.14(16), as it existed prior to the amendments, provides that an order under rule 48 dismissing an action may be set aside under rule 37.14.

[11] Rule 37.14(1) provides that a party who is affected by an order of a registrar may move to set aside 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. The court has discretion to set aside the order on such terms as are just. (subrule (2))

Test to Set Aside Registrar’s Dismissal Order

[12] The plaintiffs have the onus to satisfy the court that this action should be permitted to proceed.

[13] In considering whether the dismissal order should be set aside, the court will consider the following four factors while taking a contextual approach in order to achieve a result that is just in all the circumstances. It is not necessary for the plaintiffs to satisfy each of the four factors in order to have the order set aside. (Reid v. Dow Corning Corp. (2001), 11 C.P.C. (5th) 80 (Ont. Master), Finlay v. Van Paassen, 2010 ONCA 204, 2010 CarswellOnt 1543 (C.A.), at paras 27-29)

a. Explanation for the litigation delay;

b. Inadvertence in missing the deadline;

c. Promptness in bringing the motion to set aside;

d. Prejudice to the defendants.

Explanation for the Litigation Delay

[14] Halik’s evidence is that he delayed noting the defendants in default for failing to file statements of defence because he was too scared and intimidated given the past actions of members of the Toronto Police Services. In particular, he states that on November 7, 2010 two police officers from Toronto Police Services awakened him at 1:08 am by pounding on his door for no reason. Notably, the plaintiffs had served the amended statement of claim on the Toronto defendants approximately 11 days before this alleged incident.

[15] Halik also describes another incident in October 2012 when a police officer stopped him on the street a block away from his home and detained him for more than 30 minutes. He states that while detained two police officers intimidated him and threatened to arrest him without valid reason. He states that after this incident he did not note the defendants in default out of fear of further retaliation by the police.

[16] However, on February 11, 2013, Halik noted the defendants in default as he had been served with a status notice dated November 19, 2012. His evidence is that he was aware of the 90-day timeline set out in the status notice which required that certain steps be taken or the action would be dismissed. He waited almost 90 days from the date of the status notice to note the defendants in default. However, he failed to understand that noting the defendants in default was not one of the required steps to avoid a dismissal. The plaintiffs were required to have the action terminated within 90 days of the date of the Status Notice (see provisions of Status Notice below).

[17] Halik’s position is that the registrar should not have issued the status notice as no statement of defence had been filed. He refers to the provisions of the status notice as follows:

1. According to the records in the court office:

a. more than 2 years have passed since a defence in this action was filed;

b. this action has not been placed on a trial list; and

c. this action has not been terminated by any means.

2. AS A RESULT, THIS ACTION SHALL BE DISMISSED FOR DELAY, with costs, unless within 90 days of service of this Notice,

a. the action is set down for trial;

b. the action is termination by any means;

c. documents have been filed in accordance with subrule 48.14(1); or

d. a judge or case management master orders otherwise.

[18] It appears that Halik did not read or understand the Note that followed paragraph 2 of the status notice, which provides that a notice of intent to defend is considered to be a defence for the purposes of calculating the two-year timeline referred to in paragraph one. The Note states as follows:

NOTE: A “defence” means a statement of defence, a notice of intent to defend, or a notice of motion in response to a proceeding, other than a motion challenging the court’s jurisdiction. (emphasis)

[19] Therefore, as the Toronto defendants filed their notice of intent to defend on November 16, 2010, more than two years had passed when the status notice was issued on November 19, 2012, and the action had not been placed on a trial list or terminated by any means.

[20] Halik submits that he intended on terminating this action, in compliance with paragraph 2(b) of the status notice by noting the defendants in default then proceeding to obtain default judgment. However, not only did Halik fail to obtain judgment within 90 days of being served with the status notice dated November 19, 2012 as specified in paragraph 2, his motion for judgment before Justice Brown was dismissed for lack of evidence.

[21] Further, upon receipt of the Status Notice, Halik had the option of requesting a status hearing. He did not do so. The status notice states on page 2:

NOTE: You may request that the registrar arrange a status hearing to show cause why the action should not be dismissed.

[22] It is also important to note that Halik did not contact counsel for the Toronto defendants prior to noting the defendants in default as requested by their counsel when they filed their notice of intent to defend on November 16, 2010.

[23] In my view, Halik neglected to fully appreciate the consequences of failing to comply with rule 48.14(1) as set out in the status notice. He thought that upon receipt of the status notice, if he noted the defendants in default and then moved to obtain default judgment, the action would not be dismissed. However, even if he had noted the defendants in default and proceeded with a motion for default judgment within the two-year timeline required in rule 48.14(1), the motion would have failed, as it did before Justice Brown. Put another way, this action ought to have been dismissed by the registrar on or about February 19, 2013, 90 days after the status notice was served, for failure to comply with rule 48.14(1) as set out in the status notice. However, for reasons unknown the registrar did not dismiss the action until October 1, 2013.

[24] The plaintiffs attempted to appeal Justice Brown’s order which failed because the motion was brought before a master who does not have jurisdiction to hear an appeal of a judge’s order.

[25] In conclusion on the first factor, I find that the plaintiffs intentionally delayed this action based on Halik’s evidence that he delayed noting the defendants in default because he was too scared and intimidated given the past actions of members of the Toronto Police Services. However, upon receipt of the status notice dated November 19, 2012, the plaintiffs did not request a status hearing, nor did they comply with the criteria to avoid dismissal that was set out in the status notice. I conclude that the plaintiffs have not adequately explained the litigation delay.

Inadvertence in Missing the Deadline

[26] The plaintiffs must explain their inadvertence in missing the deadline set out in the status notice. This factor has been addressed above under the first factor. The plaintiffs have not explained why they did not request a status hearing within 90 days after being served with the status notice. Further, the plaintiffs have not explained the delay in bringing the motion for default judgment, over six months after being served with the status notice, when the status notice sets out clearly a deadline of 90 days to avoid dismissal.

[27] For the above reasons, the plaintiffs have not explained the inadvertence is missing the deadline set out in the status notice.

Promptness in Bringing Motion to Set Aside Dismissal Order

[28] As set out above, Rule 37.14(1) requires that a notice of motion to set aside an order of a registrar be served forthwith or immediately after the order comes to the person’s attention. It further requires that the motion be scheduled for the first available hearing date that is at least three days after service of the notice of motion.

[29] The dismissal order was issued on October 1, 2013. The plaintiffs do not dispute receiving the order on or about that date. The plaintiffs did not file their motion to set aside the dismissal order until October 30, 2014, more than one year later.

[30] The plaintiffs’ explanation for the delay in bringing the motion is that they expected to obtain default judgment which would obviate the necessity to have the dismissal order set aside. However, as explained above, they were required to have obtained default judgment within the 90-day deadline from November 19, 2012 being the date of the status notice. In addition, they did not file their motion for default judgment until May 22, 2013, which was well beyond the 90-day deadline. Furthermore, the motion for default judgment was not heard until September 23, 2013.

[31] For the above reasons, I find that the plaintiffs failed to bring their motion to set aside the dismissal order promptly as required under Rule 37.14(1).

Prejudice to the Defendants

[32] The plaintiffs have the onus to demonstrate that the defendants will suffer no prejudice if the action is allowed to proceed.

[33] The governing principles concerning prejudice were reiterated by Cronk J.A. in Wellwood v. Ontario Provincial Police, 2010 ONCA 386, 102 O.R. (3d) 555, at para. 60, as follows:

the expiry of a limitation period can give rise to some presumptive prejudice, the strength of which increases with the passage of time. Where the presumption arises, the plaintiff bears the burden of rebutting the presumption, on proper evidence. Where the presumption is so displaced, the onus shifts to the defendant to establish actual prejudice.

[34] An action may be dismissed even in the absence of prejudice (1196158 Ontario Inc. v. 6274013 Canada Ltd., 2012 ONCA 544, 112 O.R. (3d) 67, at para. 32), although in most cases, the question of prejudice is a key consideration in determining whether to set aside a dismissal for delay. (MDM Plastics Ltd., Vincor International Inc., 2015 ONCA 28, 2015 CarswellOnt 602, at para. 24)

[35] The prejudice that must be considered is regarding the defendant’s ability to defend the action that would arise from steps taken following dismissal, or which would result from restoration of the action following the registrar’s dismissal. (MDM, at para. 25; 806480 Ontario Ltd. v. RNG Equipment Inc., 2014 ONCA 488, [2014] O.J. No. 2979, at para. 4)

[36] Courts have repeatedly accepted that the force of prejudice due to delay intensifies with the passage of time. In particular, memories of witnesses fade over time and the passage of an inordinate length of time after a cause of action arises or after an applicable limitation period expires gives rise to trial fairness concerns. This is so even when timely notice of the claim has been provided. (Wellwood, at para. 72)

[37] In considering what prejudice may arise from the decision to reinstate the action, the court must balance two competing principles: (1) the finality principle, which considers the prejudice to the defendant resulting from having the case restored after being dismissed; and (2) the principle that the action should be determined on the merits. (MDM, at para. 27)

[38] Regarding the importance of finality in litigation as a consideration in assessing prejudice, Cronk J.A. in Wellwood, at para. 76, concurred with Sharpe J.A.’s elaboration in March D’alimentation Denis Thriault Lte v. Giant Tiger Stores Ltd. (2007), 2007 ONCA 695, 87 O.R. (3d) 660, [2007] O.J. No. 3872 (C.A.), at paras. 37 and 38, as follows:

Finality, like the avoidance of unnecessary delay, is a central principle in the administration of justice. “The law rightly seeks finality to litigation” and finality is “a compelling consideration”.

[39] Further on the principle of finality, Cronk J.A. stated:

When an action has been disposed of in favour of a party, that party’s entitlement to rely on the finality principle grows stronger as the years pass. Even when the order dismissing the action was made for delay or default and not on the merits, and even when the party relying on the order could still defend itself despite the delay, it seems to me that at some point the interest in finality must trump the opposite party’s plea for an indulgence.

[40] In the matter herein, the plaintiffs’ claims relate to incidents that are alleged to have occurred on the following dates:

a. November 6, 2005;

b. November 20, 2006;

c. December 27, 2009;

d. January 5, 2008;

e. March 18, 2008;

f. August 20, 2008;

g. May 21and May 22, 2009.

[41] This action was commenced on April 16, 2010. Therefore, when the action was commenced, the two-year limitation period had expired for five of the alleged incidents. By the hearing of this motion on May 22, 2015, the limitation period for every incident had expired and the most recent limitation period expired four years ago. The earliest incident occurred almost 10 years ago and the latest occurred six years ago.

[42] It is important to note that the defendants did not receive notice of the plaintiffs’ claim prior to the action being commenced. In fact, the Toronto defendants did not receive notice until they were served with the amended statement of claim on October 27, 2010, more than six months after the action was commenced. From the evidence, it appears that the Ontario defendants were not served with the amended statement of claim until sometime after the Toronto defendants were served because the Ontario defendants filed their notice of intent to defend in April 2011. The plaintiffs have not explained this delay.

[43] It is the position of the Toronto defendants that the bulk of their defence will rely on the recollections of police officers employed by the Toronto Police Service. The only step taken by these defendants was to file a notice of intent to defend on November 10, 2010 when their counsel requested the plaintiffs to provide notice if they intended to note them in default. The plaintiffs had no communication with these defendants. It is the Toronto defendants’ further evidence that due to the plaintiffs’ failure to move the action forward, no communication from the plaintiffs and in reliance on the dismissal order, no affidavit of documents was assembled and they have taken no active steps to defend this action. Their legal file was closed on December 23, 2014, over a year after receipt of the registrar’s dismissal order.

[44] It is the Toronto defendants’ further evidence that two of the officers involved in the alleged incidents on November 6, 2005 and August 20, 2008 resigned or retired from the Toronto Police Service in 2009 and are no longer available to testify for the Chief and Board.

[45] In conclusion on this factor, based on the facts and the evidence, it is my view that there is a presumption of prejudice to the defendants if this action were permitted to proceed.

[46] Given my finding that a presumption of prejudice exists, the plaintiffs have the onus to rebut that presumption. The plaintiffs have presented no evidence to rebut the presumption.

[47] The defendants are not required to prove actual prejudice in these circumstances where the plaintiffs have not rebutted the presumption of prejudice; however, I find there would be actual prejudice to the Toronto defendants should this action proceed given the unavailability of some defence witnesses and the fact that witnesses’ memories will have certainly faded regarding incidents that occurred six to 10 years ago.

Merits of the Action

[48] In taking a contextual approach to motions to set aside registrar’s dismissal orders, another factor that may be considered is the merits of the action.

[49] The Ontario defendant submits that Crown Attorneys cannot be sued by victims of crime, nor can Ontario be vicariously liable for any such action.

[50] They further submit that the only cause of action recognized in Canadian law against Crown Attorneys is the tort of malicious prosecution. To succeed in such a claim, the plaintiff must have been the subject of a prosecution and the prosecution must have ended in the plaintiff’s favour. (Miazga v. Kvello Estate, 2009 SCC 51, 2009 S.C.C. 51, at paras 53-56) That was not the case here as the plaintiffs were not the subject of a prosecution.

[51] I agree with this position.

[52] The Ontario defendants further submit that Justice Brown’s decision to dismiss the plaintiffs’ motion for default judgment is a further indication that this case has no merit.

Conclusion

[53] The plaintiffs have failed to satisfy their onus regarding the first four factors set out above. The last of the four factors, prejudice to the defendants, was not rebutted by the plaintiffs. Further, the plaintiffs have no valid cause of action in law against the Ontario defendant.

[54] Moreover, I find no justifiable reason why this action ought to be allowed to proceed as the plaintiffs had an opportunity to prove their allegations before Justice Brown and failed to do so. Thus, to permit the plaintiffs to continue with this action would in essence give them two opportunities to prove their case. This is not permitted in our justice system.

[55] The finality principle is an important consideration.

[56] Based on the facts of this case, it is my view that the finality principle and the prejudice to the defendants resulting from having the case restored after being dismissed outweighs the principle that actions should be determined on the merits. This is especially so because the plaintiffs had the opportunity to prove their case and failed on the motion for default judgment. In other words, the plaintiffs had the opportunity to have the action determined on the merits and failed. Of the two competing interests; that is, the finality principle and that the principle that actions should be determined on the merits, given that the plaintiffs have already had the opportunity to have their action heard on the merits and failed, the finality principle must prevail.

[57] For the above reasons, the plaintiffs’ motion to set aside the registrar’s dismissal order is hereby dismissed.

[58] None of the defendants are seeking costs of the action or the motion.

(Original Signed)

Lou Ann M. Pope

Released: August 26, 2015