SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 01-CV-211355
DATE HEARD: September 2, 2015
ENDORSEMENT RELEASED: September 29, 2015

RE: DIONNE FRANCIS v. POLICE CONSTABLE JOEY REGO, PEEL REGIONAL POLICE, REGIONAL MUNICIPALITY OF PEEL POLICE SERVICES BOARD, THE REGIONAL MUNICIPALITY OF PEEL also known as REGION OF PEEL

BEFORE: Master R. Dash

COUNSEL:
Andrew R. Kerr, for the plaintiff

Eugene G. Mazzuca, for the defendants

REASONS FOR DECISION

[1] This is a motion to dismiss for delay under rule 24.01(1)(c) and for non-compliance with an order of Master McAfee dated April 1, 2011 pursuant to rules 15.04(9) and 60.12. The cause of action arose almost 15 years ago, the action was commenced over 14 years ago and virtually nothing has been done to advance this litigation since November 2005, almost 10 years ago.

THE ACTION

[2] The plaintiff claims $500,000 general and special damages plus $500,000 punitive damages arising out of her alleged assault by the defendant police constable Rego and false arrest on November 24, 2000. The plaintiff’s and the defendants’ versions of the events are remarkably different.

[3] The plaintiff in her affidavit and in her amended statement of claim states that Rego’s police cruiser came up quickly behind her on the highway and passed her. She claims she later saw the cruiser and motioned for Rego to pull over so she could talk to him. She claims her intention was to tell him to put his flashing lights on if he needed to drive so fast and so she could move out of his way and to give him a gospel fact and a candy cane. She claims he then switched lanes, got behind her and pressed his “whoopee” button. She pulled over further down the road where she thought it would be safe. Rego got out of his car and began yelling at her. She asked Rego why he was yelling since “I asked you to pull over.” She asked for his “card” so she could report his conduct. He then shoved her and asked for her licence and registration. As she was getting her licence from her bag, Rego twisted her arm behind her back, dragged her by her legs down an embankment, straddled and handcuffed her with her arms wrenched behind her back. She claims she complained of pain to the officer.

[4] In the amended statement of defence Rego claims he was in the left lane of an off ramp attempting to pass the plaintiff who was in the right lane when she moved into his lane without signalling nearly striking the police cruiser. He activated his roof lights but the plaintiff failed to stop her vehicle for some distance. The plaintiff ignored Rego’s request that she remain in her vehicle. She refused to comply with two requests to provide her licence, ownership and insurance. Rego said she was under arrest for failing to identify herself under the Highway Traffic Act at which point she pointed her index finger within inches of his face while yelling at him. He attempted to arrest her by grabbing her but she pushed him back and physically resisted causing them both to fall down a hill. At that point he was able to handcuff her while she was kicking him in the back and attempting to bite him. Other officers arrived but could get her to identify herself, including the officer who drove her to the police station. She was charged with obstructing police and failing to identify herself. The defendants plead she never complained of injury to Rego, or to the officer who drove her to the station or to the booking officer.

[5] I have described the two differing versions of the events in order to demonstrate that liability is very much in issue and dependent on the credibility of the plaintiff and of Rego and others. It is a case where the recollection of witnesses is of great importance.

[6] Approximately 15 months before this incident the plaintiff suffered physical, cognitive and psychological injuries when a box fell on her head while shopping at a Canadian Tire store and on August 10, 2000 she commenced action against the Canadian Tire franchise (the “Canadian Tire Action”). She claims this incident with the police exacerbated her physical and psychological injuries and caused her to suffer Post Traumatic Stress Disorder. She commenced this action (the “Police Action”) on May 23, 2001. She also suffered further injuries in a motor vehicle accident on October 13, 2002, for which a claim for accident benefits was made and which went to arbitration. The cause of her alleged ongoing injuries is in issue in this action.

CHRONOLOGY OF LITIGATION

[7] The following chronology summarizes what has taken place in this action:

(a) May 23, 2001 – The action was commenced by issuance of a Notice of Action. The statement of claim was filed on June 22, 2001. At that time the plaintiff was represented by lawyer Joseph Falconeri at Raphael Partners.

(b) November 21, 2001 - The Regional Municipality was served. It is unclear from the record when Rego and Peel Police were served.

(c) June 4, 2002 - Service was validated and the time extended by order of Master Sedgwick.

(d) September 4, 2002 – Raphael Partners were removed as plaintiff’s solicitor of record by Master Peterson. The plaintiff claims Mr. Falconeri left the firm around the end of 2001 and the firm told her they did not handle this type of action.

(e) September 23, 2002 – Notice of intent to defend was filed

(f) November 15, 2002 – Statement of defence was filed.

(g) June 14, 2005 – Barry Swadron of Swadron & Associates was retained by the plaintiff and filed a notice of appointment of solicitor.

(h) June 20, 2005 – Mr. Swadron on behalf of the plaintiff filed a fresh as amended statement of claim.

(i) July 11, 2005 – The defendants filed an amended statement of defence.

(j) September 16, 2005 and November 21, 2005 – The plaintiff was examined for discovery. The plaintiff gave approximately 38 undertakings, 8 under advisements (since deemed to be refusals under rule 31.07(1)(b)) and one question refused. It appears the defendants were examined in or around the same time but there is no evidence of the date. Three undertakings were given by the defendants.

(k) June 23, 2008 – Master Linton made an order in the Canadian Tire Action (on motion by the defendant in that action) that the Canadian Tire Action and the Police Action be tried together.

(l) May 22, 2009 – The defendant started to ask for answers to undertakings and sent an undertakings chart to Swadron. This was followed up with four further requests to answer undertakings between September 2009 and November 2010.

(m) September 17, 2009 - Swadron indicated that undertakings would be answered within the next few weeks and on October 21, 2009 indicated he had forwarded the defendants’ letter to his client and “will advise.” He later said he wanted to see the transcript for the context to some of the undertakings.

(n) January 8, 2010 – The plaintiff answered two undertakings (to provide some laser copies and the pleadings in the Canadian Tire Action) and Swadron indicated he was prepared to order various records.

(o) February 2, 2010 – The defendants answered their undertakings.

(p) February 23 and 26, 2010 – Swadron answered two further undertakings. One was to provide a decoded OHIP summary but he indicated that he was only able to obtain the summary dating back to July 2002, as OHIP records are purged after 7 years. The second was to confirm that OHIP would be pursuing their subrogated interest. No further undertakings have been answered by the plaintiff.

(q) April 1, 2011 – Master McAfee removed Swadron & Associates as lawyers of record for the plaintiff and pursuant to rule 15.04(8) ordered that the plaintiff deliver a notice of intention to act in person or a notice of appointment of lawyer within 30 days. Proof of service of that order on the plaintiff was filed on April 6, 2011. The plaintiff has never complied with that order.

(r) May 16, 2012 – The defendants’ lawyer asked the plaintiff if she was pursuing the action, reminded her of her obligations under the order of Master McAfee and again requested answers to undertakings. Although there was initially some confusion about her correct email and mailing address, that was sorted out by May 30 when the plaintiff acknowledged receipt of the letter.

(s) June 4, 2012 – The plaintiff advised that lawyer Joseph Kary was trying to assist her and the defendant’s lawyer reminded her that Mr. Kary was required to file his notice of appointment of lawyer to comply with the order of Master McAfee. Mr. Kary never contacted the defendants’ lawyers and never delivered a notice of appointment of lawyer.

(t) December 19, 2013 – Mr. Mazzuca, the lawyer for the police defendants, had been advised of a mediation date of January 6, 2014 in the Canadian Tire Action by counsel for Canadian Tire. He asked Andrew Kerr (who was then representing the plaintiff in the Canadian Tire action) if he could participate in the mediation before going to the expense of bringing a motion to dismiss for delay.

(u) December 20, 2013 – Mr. Kerr indicated he would likely be retained in this action. He advised that the plaintiff was not agreeable to the defendants in the Police Action participating in the mediation in the Canadian Tire Action, although Mr. Mazzuca could attend as an observer.

(v) January 6, 2014 – Mediation was conducted in the Canadian Tire Action. On that date Mr. Kerr advised that he would shortly be going on the record in the Police Action. Mr. Kerr did not become further involved in the Police Action and never delivered a notice of appointment of lawyer. He did however represent the plaintiff “as agent” on the motion currently before me.

(w) August 17, 2015 – The defendants served this motion to dismiss the action for delay and for breach of court order.

DISMISSAL FOR DELAY

The Test

[8] A defendant may move to dismiss an action for delay if it can meet one of the gateway criteria in rule 24.01(1). The relevant portions of rule 24.01 for purposes of this motion are as follows:

24.01 (1) A defendant who is not in default under these rules or an order of the court may move to have an action dismissed for delay where the plaintiff has failed,

(c) to set the action down for trial within six months after the close of pleadings...

[9] Pleadings initially closed in November 2002 and amended pleadings were completed by July 2005, over 10 years ago. As the action has not been set down for trial, the defendants have met the gateway criterion under rule 24.01(1)(c).

[10] The test for dismissal for delay has been recently restated by the court of appeal in Langenecker v. Sauve as follows:

It should not in any event be exercised without giving the plaintiff an opportunity to remedy his default, unless the court is satisfied either that the default has been intentional and contumelious, or that the inexcusable delay for which the plaintiff or his lawyers have been responsible has been such as to give rise to a substantial risk that a fair trial of the issues in the litigation will not be possible at the earliest date at which, as a result of the delay, the action would come to trial if it were allowed to continue. [1]

[11] This is often a “high threshold” for a moving defendant to establish. Courts are reluctant to dismiss actions under rule 24.01 because the timelines which permit a motion to be brought are short, for example not setting an action down within 6 months after the close of pleadings.[2] Of course in the matter before me, despite the short timelines permitted for a motion to dismiss under the rules, it has been over 14 years since the action was commenced, almost 13 years since the close of pleadings (and over 10 years since amended pleadings were complete.)

[12] Langenecker describes the two types of cases which would merit a dismissal for delay – either the delay is intentional and contumelious (in which case it is not necessary for the defendant to have been prejudiced by the delay) or alternatively the delay is inordinate and inexcusable resulting in prejudice to the defendant in obtaining a fair trial. The defendant says that in this matter it has satisfied both alternative bases and the court could dismiss the action for delay under either ground.

Is the Delay Intentional and Contumelious?

[13] In the first type of case, the delay must be intentional and contumelious:

The first type of case described by Lord Diplock refers to those cases in which the delay is caused by the intentional conduct of the plaintiff or his counsel that demonstrates a disdain or disrespect for the court process. In dismissing cases which fall within this category, the court effectively declares that a continuation of the action in the face of the plaintiff’s conduct would constitute an abuse of the court’s process. These cases, thankfully rare, feature at least one, and usually serial violations of court orders.[3]

[14] The onus rests with the plaintiff to show that the delay was not intentional. “In the absence of an explanation from the plaintiff for the delay, it is presumed that the delay was intentional, and that would appear to be the end of the matter.”[4]

[15] The plaintiff blames the delay on having to act for herself when her various lawyers went off the record and as a result of stress and injuries exacerbated by litigation stress. While I have suspicions that the plaintiff put this action on the “back burner”, preferring to spend her time and energy in the Canadian Tire Action, the accident benefit application arising out of the motor vehicle accident and her political pursuits, I am not satisfied on the evidence that the delay, while inexcusable, has reached a level where it could be described as intentional.

[16] The plaintiff is not in breach of numerous court orders. She has however been in breach of one order – that of Master McAfee made on April 1, 2011 – and she remains in breach by failing to deliver a notice of appointment of lawyer or notice of intention to act in person within 30 days as ordered. While absolutely no excuse has been offered for this breach, it is not in my view contumelious such that it amounts to disdain for the court’s process. I will deal further with this breach when considering the concurrent motion to dismiss under rule 15.04(9) and 60.12. There are no other outstanding orders. For example there has never been an order to answer undertakings.

[17] While the reasons given by the plaintiff for her delay may be weak and not offer an adequate excuse for the delay, in my view the delay could not be described as intentional and contumelious.

Is the Delay Inordinate, Inexcusable and Resulting in Prejudice to the Defendants?

[18] The second type of case described in Langenecker requires three characteristics to justify a dismissal for delay. The delay must be (a) inordinate, (b) inexcusable and (c) result in prejudice to the defendant such that there is a significant risk a fair trial will not be possible due to the delay:

The second type of case that will justify an order dismissing for delay has three characteristics. The delay must be inordinate, inexcusable and such that it gives rise to a substantial risk that a fair trial of the issues in the litigation will not be possible because of the delay.[5]

Inordinate Delay

[19] What constitutes an inordinate delay?

The inordinance of the delay is measured simply by reference to the length of time from the commencement of the proceeding to the motion to dismiss. Most litigation does not move at a quick pace. Some litigation, because of the issues raised and/or the parties involved, will move even more slowly than the average case.[6]

[20] The action was commenced on May 23, 2001 and initial pleadings were closed in November 2002. There is then an unexplained 2½ year gap between November 2002 and June 2005 when an amended statement of claim was delivered. Nothing whatsoever has been done to advance this litigation for almost 10 years since November 2005 when examinations for discovery were completed other than answering four undertakings. 42 undertakings and under advisements remain outstanding. There has been no mediation and the action has never been set down for trial. Further, 4½ years after the order was made to file a notice of intention to act in person or notice of appointment of lawyer, the plaintiff remains in non-compliance with the order and rule 15.04(8).

[21] The delay has clearly been inordinate.

Inexcusable Delay

[22] Since the delay is inordinate I must consider whether the delay is inexcusable. When is a delay inexcusable?

The requirement that the delay be “inexcusable” requires a determination of the reasons for the delay and an assessment of whether those reasons afford an adequate explanation for the delay. ...[E]xplanations that are “reasonable and cogent” or “sensible and persuasive” will excuse the delay at least to the extent that an order dismissing the action would be inappropriate.

In assessing the explanations offered, the court will consider not only the credibility of those explanations and the explanations offered for individual parts of the delay, but also the overall delay and the effect of the explanations considered as a whole. [7]

[23] The action was commenced by the Raphael firm in May 2001. Her lawyer, Mr. Falconeri left the firm at the end of 2001 and the firm went off record in September 2002. There is no evidence that anything was done except issue and serve a statement of claim and obtain an order validating service. There is no explanation for the 2½ year delay between then and June 2005 when the plaintiff retained Mr. Swadron except that she “was having great difficulty” finding a lawyer to represent her in this action (and the Canadian Tire Action). There is no evidence that Swadron did anything to advance the action in the almost six years of his retainer (he went off the record in April 2011) except amend the statement of claim in June 2005, attend examinations for discovery in September and November 2005 and answer four undertakings in February 2010. The failure to advance the litigation continued after Swadron went off the record. No further undertakings were answered, no lawyer went on record for the plaintiff, she did not file a notice of intention to act in person, she refused to let the Police defendants participate in the mediation in the Canadian Tire Action and she has failed to set this action down for trial.

[24] The sum total of her excuse for this inordinate delay is set out in her affidavit as follows:

I absolutely want to proceed with this action. Unfortunately, I have been dealing with issues, stresses and physical, emotional and psychological injuries which have caused and/or exacerbated by the severe litigation stress caused by the defendant in the Canadian Tire action and/or the insurer in the motor vehicle accident. As a result I have not been able to focus my attention on this matter.

[25] This excuse – that her stresses have prevented her from focussing her attention on this action – has no air of reality. During the period of longest delay, a period of almost 10 years between the November 2005 discovery and the date this motion was heard in September 2015, where nothing was done except answer four undertakings, she has managed to attend to many other stressful matters, often without the assistance of a lawyer.

[26] Firstly, in the Canadian Tire Action she was able to set the action down for trial, have the action restored to the trial list when it was struck for the first time, deal with a number of motions and appeals dealing with the issue of defence medical examinations, attend and speak to four motions to dismiss including adjournment dates, a contempt motion brought by her former lawyers, undertaking and production motions, answer all of her numerous undertakings including the obtaining of non-party records and arrange and attend mediation. For almost four years during that period she was self represented, with some assistance from a lawyer on a limited scope retainer. She was otherwise capable of retaining lawyers to represent her. Even when represented by counsel, she always attended with her lawyers for most if not all of the many court appearances, often making personal submissions to the court in addition to the submissions of her lawyer.

[27] Secondly, the plaintiff represented herself at numerous attendances in connection with the accident benefits application arising out of the motor vehicle accident. In particular she (a) attended before the Financial Services Commission of Ontario (“FSCO”) for two hearing dates in October 2005 on the insurer’s motion for production; (b) attended a seven day arbitration for accident benefits before FSCO in January and February 2006; (c) attended a one day hearing for the expenses of arbitration in October 2006; (d) attended a one day appeal of the arbitration before the Office of the Director of Arbitrations (“ODA”) in May 2007; (e) attended a seven day arbitration before FSCO for additional accident benefits in September and November 2007; (f) attended to make submissions on expenses of the second arbitration in July 2008; (g) prepared written submissions for the appeal of the expenses order in September 2008; (h) prepared a motion for judicial review to Divisional Court of the first ODA appeal and attended for the hearing in Divisional Court in November 2011 and (h) attended before the ODA for a one day appeal of the second arbitration award in December 2011. This of course is in addition to preparing all of the paper work for her initial application, her arbitrations and appeals. She did all of this between 2005 and 2011, the time period she says she was under too much stress to attend to this action.

[28] Thirdly, the plaintiff ran for mayor of the City of Toronto and participated in at least several debates during August and September 2014. I have reviewed media articles and a videotape of one debate, which appeared to be quite stressful, yet the plaintiff found the time and ability to participate.

[29] Given all of the other high stress matters she was able to attend to during the 10 year period of delay between 2005 and 2015, I find that her excuse that she was too stressed by her injuries and by the other litigation to attend to this action has no air of reality.

[30] Although a court should “allow some latitude for unexpected and unusual contingencies that make it difficult or impossible for a party to comply” with timelines in the Rules[8], there are no such unexpected and unusual contingencies in this case. This is to be contrasted with the unusual circumstances in the Canadian Tire Action where approximately five years were spent on matters connected with defence medical examinations.

[31] In my view the plaintiff simply set her priorities on the Canadian Tire Action, her accident benefits application and the mayoralty race. The plaintiff has shown virtually no interest in pursuing this action since her examination for discovery, almost 10 years ago. She in essence put the Police Action in abeyance. That is not an acceptable excuse.

[32] I conclude that the plaintiff’s inordinate delay is inexcusable.

Prejudice Arising from the Delay

[33] Since I found the delay to be inordinate and inexcusable, I must consider whether as a result of that delay, the defendant is prejudiced in the presentation and determinatio