Hodge v. Toronto Police Service
2015 ONSC 5508
Hodge v. Toronto Police Service et al.
Court File No.: CV-12-445675
Motion Heard: May 29/15 and June 2/15
In attendance: J. Van Bakel, counsel to the lawyer for the plaintiff
R. Oliver, lawyer for the defendants
By the court:
[1] This action was dismissed as abandoned on September 28/12. The plaintiff seeks to have the court set aside the dismissal Order. If the dismissal Order is set aside, the plaintiff would have the court extend the time for service of the statement of claim (and/or validate service) and permit the amendment of the statement of claim.
[2] The background to the litigation is as follows. In November 2009, Police Constables Vo and Kennedy pulled over the plaintiff’s vehicle for failing to stop at a red light and for failing to signal a lane change. During the traffic stop, the defendant police officers saw a bottle of OxyContin (not prescribed to the plaintiff) in the plaintiff’s car. The plaintiff was arrested and charged with drug-related offences.
[3] The plaintiff alleges that the OxyContin belonged to a friend of his who had been riding with him, in his car, earlier in the day. He says that his friend, Mr. Hunter, was prepared to give a statement as to the OxyContin belonging to him, but declined to do so when the police defendants failed to permit him to do so with his lawyer (the plaintiff’s lawyer) at his side.
[4] The plaintiff was charged with various offences, including possession for the purposes of trafficking. He spent two nights in jail and, then, was granted judicial interim release. The charges against him were stayed by the Federal Crown on February 5/10.
[5] In February 2012, within the limitation period, an action founded in negligent investigation and malicious prosecution was brought against PCs Vo and Kennedy and the Toronto Police Services Board. On August 2/12, the Registrar gave notice that the action would be dismissed as abandoned (unless certain steps were taken) in 45 days.
[6] According to the defendants, the statement of claim was delivered to the Toronto Police Service Duty Desk on August 13/12 but was never personally served on PCs Vo and/or Kennedy (and neither was it served with an Order permitting substitutional service).
[7] The plaintiff says that the statement of claim was served earlier than August 13/12 but acknowledges that it was served after the 6-month putative deadline for service. Counsel for the plaintiff (who acted as the plaintiff’s criminal and civil lawyer herein) indicates that he had earlier attempted to arrange to effect service on a lawyer whom he knew had, in the past, acted for the Toronto Police Services Board (Kevin McGivney) but his attempts to reach Mr. McGivney and communicate with him in respect of this action were unsuccessful. I note that there is nothing now before me that suggests that Mr. McGivney, or any of the defendants, led the plaintiff or his lawyer to believe that Mr. McGivney was or would be acting herein.
[8] On August 31/12, the lawyer for the defendants (i.e. the defendants’ present lawyer, Mr. Oliver—who does not work in Mr. McGivney’s law office) wrote to plaintiff’s counsel to advise him that service had not been properly effected on his clients.
[9] On September 28/12, the action was dismissed as abandoned.[1]
[10] Rather than address Mr. Oliver’s letter or the dismissal Order, counsel for the plaintiff wrote directly to PCs Vo and Kennedy to request delivery of their statements of defence—on October 5/12.
[11] Mr. Oliver responded on PCs Vo and Kennedy’s behalf to remind plaintiff’s counsel that, from the defendants’ perspective, the claim had not been properly served and to advise him that, in any event, the action had been dismissed as abandoned. He twice wrote to counsel for the plaintiff, to this effect: October 22/12 and April 23/13.
[12] It was not until May 3/13 that counsel for the plaintiff asked that the defendants consent to an Order setting aside the Registrar’s dismissal of the plaintiff’s claim. Counsel for the defendants did not say ‘no’, at first instance, but asked that counsel for the plaintiff send him the evidence upon which he would be relying in seeking to have the action reinstated. No response to this request was made by counsel for the plaintiff.
[13] Instead, in June/13, counsel for the plaintiff again asked for the defendants’ consent—without addressing the defendants’ request for evidence. Within days thereafter, counsel for the defendants indicated that consent would not be given.
[14] By the end of August/13, counsel exchanged correspondence on the issue of whether PCs Vo and Kennedy had been properly served (irrespective of the issue of reinstatement of the action). At the time that they were allegedly served, both PC Vo and PC Kennedy depose that they were not working. The evidence of the plaintiff’s lawyer’s process server suggests that they were personally served; but, while corroborative evidence to that effect is said to be available, it was not proffered. Why do I say this? By letter dated August 12/13, addressed to counsel for the defendants, the suggestion was made by plaintiff’s counsel that the person who drove the process server to effect service on the police defendants was prepared to “confirm by affidavit” that service was effected. Yet, inexplicably, no such confirmatory affidavit was filed on this motion.
[15] The plaintiff’s lawyer then failed to communicate with the defendants’ lawyer for some fifteen months. In late November/14 (approximately four months after counsel for the defendants closed his file), the lawyer for plaintiff’s counsel (a lawyer retained by LawPRO) advised Mr. Oliver that this motion would be brought; and, it was.
[16] In considering whether to set aside the dismissal Order, I must have regard to the reason for the litigation delay, any inadvertence on the part of plaintiff’s counsel in missing the deadline sought to be relieved against, whether this motion was brought promptly and whether there is prejudice to the defendants. A contextual approach that has me consider and weigh all relevant factors to determine the Order that is just in all of the circumstances is to be taken by me (see: Habib v. Mucaj, 2012 ONCA 880, [2012] O.J. No. 5946 (C.A.), at paras. 5-7).
Reason for the Litigation Delay/Inadvertence
[17] The evidence before me (evidence that is supported by an affidavit from plaintiff’s counsel but is not independently substantiated by way of medical evidence or otherwise) is that, in 2008, counsel for the plaintiff was diagnosed with Parkinson’s Disease and was prescribed medication which, until recently[2], was dosed incorrectly. In 2010, counsel for the plaintiff is said to have been diagnosed with cardiomyopathy, and, in November 2013, with colon cancer (for which he was treated with surgery and chemotherapy). Counsel for the plaintiff submits that his health issues have impaired his ability to manage his law practice (and, indeed, this file) by causing him drowsiness, reduced energy levels, short-term memory loss, depression, reduced motivation and absences from the office, inter alia. Counsel also says that he did not have clarity of thought and an ability to move forward with the plaintiff’s claim until the Spring of 2014. He advises, again with no substantiation, that he then reported himself on the LawPRO website but that his report was not received by LawPRO when first made. Having heard nothing from LawPRO, he self-reported again, he says, in October/14.
[18] In December/14, counsel was retained by LawPRO. Once counsel for the defendants confirmed afresh that his clients would not consent to the reinstatement of the action, this motion was booked (originally returnable May/15). The delay from December/14 until this motion was ultimately brought is not a delay that factors into my determination. I recognize and accept that counsel retained by LawPRO required time to familiarize himself with the underpinnings of the case, to prepare and to take next steps.
[19] Counsel for the defendants says that, even taking counsel for the plaintiff at his word in respect of his health issues (albeit with no supporting evidence having been adduced), and considering these issues sympathetically and empathetically (and, thus, making allowances therefor), these health issues are largely irrelevant here. Why does he say so? He says so because of the timing of the health issues. Plaintiff’s counsel was suffering from the sequelae of Parkinson’s Disease and cardiomyopathy years before this action was commenced by him on the plaintiff’s behalf. “These are not intervening health concerns; they existed before counsel took the plaintiff’s claim”, says Mr. Oliver, fairly. And, as for the colon cancer diagnosis, it was made more than one year after this action was dismissed and at a time when, it seems, plaintiff’s counsel was carrying on his practice--including for a client for whom he had completed a two-week trial (see: Exhibit “I” to affidavit of Candice Kennedy, sworn May 12/15). Counsel for the defendants suggests that plaintiff’s counsel either favoured other files over this file or failed to prosecute the claims herein for reasons that have not been adequately explained. I agree.
[20] Why do I agree? While the plaintiff’s lawyer advises that his long-time assistant left him in January 2012 and that he has had a difficult time organizing his practice since her departure, he does not explain why he took some steps and not others (in addressing this litigation). Some letters were written by him during the currency of the action. Why those but not others? And, who is the person with initials “ss” who typed plaintiff’s counsel’s letters in October/12 and following (see, for instance, Exhibit “D” to the May 12/15 affidavit of Candice Kennedy)? Did “ss” replace the “long-time” assistant? What was his/her role in organizing counsel’s practice? How can I know that the deadline missed by plaintiff’s counsel was missed through inadvertence? Were deadlines diarized? Did “ss” assist plaintiff’s counsel with meeting deadlines? What about Ms. Bluthner, plaintiff’s counsel’s “law clerk” who has “worked part-time for [him] for approximately 10 years” (see Exhibit “K” to the affidavit of plaintiff’s counsel, sworn May 14/15)? What role did she play in addressing the plaintiff’s file and plaintiff’s counsel’s files, generally? And how is it that counsel knew to follow up with the defendants in October 2012 but not in respect of the September 28/12 deadline? Why did he deal with some issues in this litigation and not others? Was it intentional? Was it a matter of wilful blindness? And if, as counsel says, he was ill and unable to attend to his practice and this file, as was required, what systems were put in place to backstop him? If none, why not? How can I know (have comfort) that plaintiff’s counsel’s failure to deal with this file, as opposed to others (and the evidence before me makes clear that he was able to work on others), was not deliberate? This is not the case of a date in a tickler system that was inadvertently missed.
[21] Then too, the plaintiff has filed an affidavit in which he asserts that he “always had every intention of prosecuting this action” and never instructed his lawyer to “park” it or “put it on the back burner”. Yet, there is no independent evidence before me to support this contention (save his lawyer’s statement that he wasn’t instructed to put the file in abeyance[3]). There are no notes, docket entries, voicemail message transcripts, text messages or the like (even redacted) as to any communications between the plaintiff and his counsel. There is only a bald statement by the plaintiff that “he understood that [his lawyer] was prosecuting the action”. Understood why? Understood how? The statement might withstand scrutiny if it weren’t in “…the spring or summer of 2014 that [his] lawyer…contacted [him] and informed [him] that there was a procedural issue with the proceeding…”: i.e., two years from the time that the action was commenced. The defendants say, reasonably I think, that there is nothing to negate the notion that the plaintiff participated in and sanctioned the delay. Two years is a long time for a client to allow an action to languish, with no evidence of follow-up on his part and no evidence of his having had any information as to any procedural problems or as to his lawyer’s health issues during that time.
Timing of the Motion
[22] I accept that, after LawPRO’s involvement, the plaintiff’s motion to reinstate the action was brought promptly. But, it was not brought promptly after the action was dismissed. Defendants’ counsel, a few times, urged plaintiff’s counsel to take action and reminded him of deadlines; yet, plaintiff’s counsel seemingly was selective as to how and when he responded. And why didn’t Ms. Bluthner and/or “ss” or others respond on plaintiff’s counsel’s behalf, if he was unable to attend to the litigation?
[23] While counsel for the plaintiff blames a faulty fax machine for some of the communication issues, there are fax confirmations for the faxes sent by defendants’ counsel and no evidence as to any calls made or bills paid for repairs to that fax machine. There is nothing but a bald assertion from plaintiff’s counsel to that effect. Indeed, there is a suggestion that, in the past, the fax machine gave “an indication of having lost…correspondence stored in its memory” (Exhibit “L” to counsel for the plaintiff’s affidavit, sworn May 14/15). Is this the case here? Where is the printout/fax diagnostic report showing lost correspondence?
[24] Then too, there is nothing before me to explain why, after submitting his claim to LawPRO (a claim that he delayed in submitting even at first instance), plaintiff’s counsel waited seven months until he followed up. Indeed, by the time that he said he first reported himself, he had already been declared cancer free and was able to start “to focus on [his] practice again”.
Prejudice
[25] I agree with the parties when they say that prejudice is here the consideration that ought to be given the greatest weight. Prejudice is here presumed, with the limitation period having elapsed in early February/12 (at the latest). The defendants say (and I accept) that the plaintiff has not provided sufficient evidence to rebut the presumption of prejudice. While the plaintiff and his key witness, Mr. Hunter, depose that their memories have not faded over time, they have done nothing to substantiate that this is so (including by way of referring to notes taken, specific instances recalled or memory triggers).
[26] Counsel for the defendants points out that the evidence adduced on this motion contradicts the suggestion that the plaintiff’s memory has not faded. The plaintiff indicates that he has read his lawyer’s affidavit, filed herein. Yet, he does not correct his lawyer on an important point on which he erred. One would think that, if his memory were as strong as he suggests, he would do so. His lawyer deposed that no tickets were issued to the plaintiff as a result of the November/09 traffic stop. Indeed, four traffic tickets were issued. The plaintiff ought to have pointed that out.
[27] And, while the lawyer for the plaintiff says that the plaintiff’s friend brought his OxyContin prescription to show to the defendants (but the defendants refused to look at it), there is nothing before me from Mr. Hunter or the plaintiff to give comfort that this key document (Mr. Hunter’s prescription or, even, his pill bottle) has been preserved and/or can be obtained. Does “Warren Drugs” still exist (paragraph 7 of the statement of claim)? Is there someone who is now able to independently substantiate that Mr. Hunter participated in “medically prescribed and approved programme of pain management” in 2009? Plaintiff’s counsel references a “Dr. Dacre”. Has anyone spoken with him? Are his notes and records with respect to Mr. Hunter’s health status at the relevant time available? Even if pharmacies and doctors are required by statute to maintain health records, I do not know whether the pharmacy and doctor here have done so and/or whether those records are intact and can be found.
[28] The prescription is critical, says defendants’ counsel and I agree, because the defendants say that the traffic stop occurred on November 26/09 and the plaintiff’s lawyer says that it occurred on November 27/09—the same day on which Mr. Hunter’s prescription was apparently filled. When the prescription was filled is key component of this litigation and I have been provided with little comfort that the question can be sufficiently addressed.
[29] The defendants’ evidence is that the memories of PCs Vo and Kennedy have faded; and, neither of the police defendants continues to work in the same capacity as he/she did in 2009. Together, the two police defendants have been involved in over 3100 traffic stops since 2009, with PC Kennedy also having been involved in approximately 20 drug-related arrests during her tenure as a police officer. Both PC Vo and PC Kennedy depose that they have “very little current, independent memory of any investigation that may have been performed related to this traffic stop”.
[30] While the Crown disclosure file is available and the police defendants have their notes (mitigating factors for the plaintiff, I agree), the evidence of the police defendants as to what they do or do not recall is plausible given the manner in which litigation is treated by the Toronto Police Service. The evidence before me is that PCs Vo and Kennedy were not involved in the Crown’s decision as to whether or not to pursue charges against the plaintiff and failed to continue to take any interest in this litigation when they were told that the action had been dismissed as abandoned. Their evidence is that they did not learn of the action’s potential for continuation until mid-December/14. With no statements of defence, affidavits of discovery or examinations for discovery, it is indeed plausible that the defendants’ memories were not jogged or memorialized under oath, until recently.
[31] Then too, there is nothing before me to satisfy me that transcripts from the court appearance during which the criminal proceeding against the plaintiff was terminated are available. The plaintiff and his counsel have not deposed as to any inquiries made by them in that regard.
[32] Further, and at least tangentially, there is the potential for a third party claim to be brought against Mr. Hunter for having caused or contributed to the plaintiff’s alleged damages by declining to share information with the police defendants that might have tended to persuade them “that no crime had been committed” (see paras. 22 and 23 of the statement of claim). Such third party claim may now be statute-barred having regard to the fact that the defendants knew of the claim in August/12. As Mr. Oliver posits, whether it is or isn’t statute-barred is not an issue to be decided on this motion, but the fact that it might be puts the defendants at risk for prejudice (see: Tarsitano v. Drutz, 2013 ONSC 5605).[4]
[33] Even in the absence of actual, proven prejudice to the defendants, it is open to the court to choose to decline to reinstate an action dismissed by the Registrar. Where, as here, the other Reid factors have been met and where, as here, defendants’ counsel closed his file months before the plaintiff’s motion was brought, finality may trump actual prejudice (see: Hernandez v. Lariviere, [2014] O.J. No. 5990 (S.C.J.), at paras. 66-70). This is particularly so where, also as here, accusations of negligent investigation and malicious prosecution follow the police defendants and can affect their reputations and ability to apply for and achieve promotions (this being a consideration to which, admittedly, I have attached very little weight given that this consideration is a natural consequence of litigation).
Striking a Balance: Contextual View
[34] And while I agree that “[t]he law will not ordinarily allow an innocent client to suffer the irrevocable loss of the right to proceed by reason of the inadvertence of his or her solicitor”, I am unable to conclude that the plaintiff’s lawyer acted inadvertently or that the plaintiff was not complicit in the delay. The evidence before me is rife with gaps. Though I confess to being concerned that the effect of a refusal on my part will be to deprive the plaintiff of his day in court, I am mindful of the caution issued by the Court of Appeal that “[s]peculation about whether a party has a lawsuit against [his] own lawyer, or the potential success of that lawsuit, should not inform the court’s analysis of whether the Registrar’s dismissal Order ought to be set aside” (see: Finlay v. Van Paassen et al., 2010 ONCA 204, at paras. 32-33).
[35] I am sincerely sorry for the travails of plaintiff’s counsel and the health issues that he says have plagued him in the years preceding and following his involvement in this matter, but I must make an Order that is just in all of the circumstances having regard to the (skeletal) record before me.
[36] On the evidence before me, and in all, I do not think that the Reid factors have been sufficiently addressed (the delay is not adequately explained and the reasons therefor not substantiated; I do not know that the deadline missed was a matter of inadvertence, with there being lacunae in the evidence as to what office systems were in place to ensure that this action would not be dismissed [and to mitigate the effects of any health issues that might have been affecting plaintiff’s counsel], and with there being no explanation as to the role of plaintiff’s counsel’s office staff; there is nothing but a bald statement from the plaintiff as to his desire to advance his claims—with no evidence of any effort made by him in two years to discern their status; the motion to set aside the dismissal Order was not brought promptly, save after counsel was appointed by LawPRO; there is presumed prejudice that has not been adequately rebutted [such that I am not satisfied that a fair trial will here be possible] and, likely, actual prejudice; the defendants were not complicit in the delays and, indeed, made efforts to have plaintiff’s counsel address the litigation; and there is a public interest here in finality, with the defendants’ lawyer having closed his file months before this motion was brought).
[37] And while the plaintiff says that a contextual perspective ought to have me consider the change to the Rules that took effect January 1/15, I have done so. It is but one consideration—a consideration that when, looked at in the context of the whole, is insufficient to tip the balance.
[38] For all of these reasons, the dismissal Order will remain in place. Failing agreement as to the costs of the motion and the action, I may be spoken to.
September 2/15 ____________________
Master Abrams
[^1]: I note that plaintiff’s counsel says that he had not received a copy of the Notice of Action Dismissal or Dismissal Order from the court but, as will be discussed below, he was told of the dismissal of the action as early as October 22/12. And, in any event, he would have known or have been expected to know that this action would be dismissed if not set down or terminated or defended within the period of time prescribed by the Rules.
[^2]: Plaintiff’s counsel does not advise as to when adjustments to his dosing were made. Was it before the action was dismissed? After? How long after?
[^3]: And if plaintiff’s counsel’s facility for recall during the period of delay is compromised, as he suggests, and his files were in disarray, how can he say this with any certainty?
[^4]: I note too, parenthetically, that plaintiff’s counsel has acted as counsel to both Mr. Hodge and Mr. Hunter and is, thus, a witness to what transpired as between Mr. Hunter and the police. He may be in a conflict of interest position which, if he is or if he is found to be, will result in further delays herein.