SUPERIOR COURT OF JUSTICE – ONTARIO

Court File and Parties

COURT FILE NO.: CV-09-393225

MOTION HEARD: May 27, 2015

SUPERIOR COURT OF JUSTICE – ONTARIO

Re: ORNELLA DEMARTI

Plaintiff

v.

BENEFIT PLAN ADMINISTRATORS LIMITED

and JOHN DOE CONSTRUCTION COMPANY

and MIKE REILLY and THE STANDARD LIFE

ASSURANCE COMPANY OF CANADA

Defendants

BEFORE: Master Lou Ann M. Pope

APPEARANCES: Patricia Sim, Grillo Barristers P.C., for moving party

Fax: 416-614-6082

Samantha Seabrook, Hicks Morley Hamilton Stewart Storie LLP, for defendant, Benefit Plan Administrators Limited

Fax: 416-362-9680

Elizabeth Bennett-Martin, Bennett Gastle Professional Corporation, for defendant, The Standard Life Assurance Company of Canada

Fax: 416-361-1530

REASONS FOR ENDORSEMENT

[1] The plaintiffs seek an order under rule 37.14 to set aside the Registrar’s dismissal order for delay issued August 7, 2014 pursuant to former Rule 48.14(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The defendant, Mike Reilly, consents to the relief sought; however, the motion is opposed by the defendants, Benefit Plan Administrators Limited and The Standard Life Assurance Company of Canada. The defendant, John Doe Construction Company, did not defend this action.

Background

[2] This action arises out of alleged injuries to the plaintiff caused by construction renovations at her workplace. The plaintiff alleges that the injuries have resulted in permanent disability.

[3] The following are the basic facts. The plaintiff is a former employee of the defendant, Benefit Plan Administrators Limited (“employer”). In 2008 the defendant, John Doe Construction Company (“construction company”) conducted renovations to the offices where the employer carried on business. The defendant, Mike Reilly (“Reilly”), was the property manager for the office building which was responsible for hiring and/or contracting the construction company. The plaintiff alleges that as a result of the renovations, she was subjected to excessive dust and debris which resulted in severe allergic reaction and personal injuries. During the relevant times, the defendant, Standard Life Assurance Company of Canada (“insurer”), provided coverage for disability benefits and extended health benefits to the plaintiff under a group policy issued to the employer.

[4] The plaintiff commenced sick leave on September 12, 2008 and thereafter applied for disability benefits from the insurer. The insurer denied the claim in December 2008. The construction ended in early November 2008. By March 2009 the plaintiff had not returned to work and the employer terminated her employment without cause and without notice. She has not returned to work since her termination.

[5] The plaintiff seeks the following: (1) payment of long term disability benefits from the insurer from 2008 onward; (2) damages for wrongful dismissal from the employer; and (3) damages for negligence from Reilly and the construction company for causing the plaintiff’s alleged disability.

Litigation History

[6] The insurer’s chronology of steps in this action is attached hereto as Appendix “A”.

Status of Action

[7] The salient steps in this action are as follows.

[8] This action was commenced on December 11, 2009. The statement of claim was served promptly on the employer and insurer and by early March 2010, those parties had delivered statements of defence.

[9] By January 6, 2011 the plaintiff, employer and insurer had agreed to and signed a discovery plan. The discovery plan required the plaintiff to serve a “sworn” affidavit of documents by January 31, 2011 (plaintiff’s unsworn version had been served on July 5, 2010). In addition, it was agreed that oral discoveries be scheduled in April 2011 and that mediation be scheduled for a date no earlier than two months following the completion of oral discoveries. However, the timelines for oral discoveries and mediation were not met because not all defendants had been served with the statement of claim or filed statements of defence. In particular, the plaintiff had not yet obtained an order correcting the spelling of Reilly’s surname and arranged for service of the statement of claim on him. In addition, the plaintiff had not determined the identity of the defendant, John Doe Construction Company, which, once determined, required a motion to add the company to the action and then arrange for service of the statement of claim.

[10] While the action proceeded, the plaintiff produced numerous medical records and schedule “A” documents as required by the discovery plan.

[11] The plaintiff brought a motion to obtain an order amending the title of proceedings to correct the spelling of Reilly’s surname. The plaintiff became aware of the error on December 15, 2009, four days after the action was issued, when attempting to serve Reilly personally and he refused to accept service due to the spelling error. However, despite being aware of the error on December 15, 2009, the order amending the title of proceedings was not obtained until February 4, 2011, 14 months after the action was commenced. Thereafter, Reilly delivered his statement of defence on June 20, 2011.

[12] The plaintiff brought another motion to replace the name of John Doe Construction Company to BTP General Contracting Inc. (“BTP”), which was opposed by BTP. Master Muir dismissed the motion heard on March 21, 2014.

[13] In response to a status notice issued on February 2, 2012, the plaintiff requested a status hearing. On June 21, 2012 Master Brott’s order imposed a timetable, proposed by the plaintiff, which required that the action be set down for trial by June 6, 2013.

[14] The registrar dismissed this action for delay on June 11, 2013 pursuant to rule 48.14(1) as it had not been set down for trial or otherwise disposed of by June 6, 2013 as ordered by Master Brott on June 21, 2012.

[15] The plaintiff obtained an order setting aside the registrar’s dismissal order of June 11, 2013, unopposed by the defendants, on November 25, 2013. Master Glustein’s (as he then was) order also extended the timeline to set the action down for trial to June 30, 2014, being only seven months from the date of the order.

[16] On August 7, 2014 the registrar issued a second order dismissing the action for delay pursuant to rule 48.14(1) as the action had not been set down for trial, or otherwise disposed of by June 30, 2014, as ordered by Master Glustein on November 25, 2013.

[17] On September 16, 2014, the plaintiff filed a notice of motion to set aside the registrar’s dismissal order issued on August 7, 2014. On January 9, 2015 the motion was adjourned to May 27, 2015 when the motion was heard.

[18] Examinations for discovery had been scheduled and canceled numerous times awaiting the outcome of the plaintiff’s motions to correct the spelling of Reilly’s surname and have him served with the statement of claim, and to add BTP as a defendant in place of John Doe Construction Company.

Law

[19] 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.

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

[21] 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

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

[23] 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

[24] The plaintiff submits that although this action could have proceeded more quickly, the delay was not intentional nor was the action abandoned at any time. In support of her position, the plaintiff points out that numerous steps were taken since the action was commenced, including serving the employer and insurer, obtaining an order amending the spelling of Reilly’s surname, bringing a motion to amend the amended statement of claim once the identity of John Doe Construction Company was discovered, paying the cost order made by Master Muir, repeated efforts to schedule oral discoveries, and motions to set aside the administrative dismissals.

[25] The defendants’ positions are that the plaintiff has failed to provide a reasonable explanation for the delay. They rely on Master Dash’s explanation of the first factor in Reid v. Dow Corning Corp., [2001] O.J. No. 2365 (Master) at para. 41:

Explanation of the Litigation Delay: The plaintiff must adequately explain the delay in the progress of the litigation from the institution of the action until the deadline for setting the action down for trial as set out in the status notice. She must satisfy the court that steps were being taken to advance the litigation toward trial, or if such steps were not taken to explain why. For example the complexities of the case and the number of parties may have required significantly more time to move the action toward trial, or the delay was caused by interlocutory matters or appeals. The plaintiff could explain that the action was stalled due to the inattention or negligence of her solicitors which was contrary to her own instructions or expectations.

[26] The defendants submit that the plaintiff’s delay in taking steps to advance this action is significant. In particular, they contend that this action was commenced over five years ago and has been dismissed for delay twice. Further, it has yet to proceed to oral discoveries.

[27] They submit further that the plaintiff has not explained the delay in bringing the motion to amend the spelling of Reilly’s surname. The plaintiff became aware of the error on December 15, 2009 when they attempted to serve him four days after issuance of the statement of claim. The plaintiff did not file her notice of motion until November 4, 2010.

[28] They further argue that the plaintiff has not explained the delay in bringing the motion to amend the amended statement of claim to add BTP given that she discovered the identity of BTP on June 20, 2011 when she was served with Reilly’s statement of defence and cross-claim. The plaintiff did not file her notice of motion until June 6, 2012, almost one year later.

[29] The defendants submit that this delay interfered with their ability to orally examine the plaintiff. Further, they submit that the three examinations for discovery dates were cancelled by the plaintiff because (1) her counsel was double booked, (2) the defendant, Reilly, who was brought into the action late by the plaintiff needed accommodation, or (3) the plaintiff anticipated bringing another defendant into the action in the future.

[30] The defendants submit further that the unexplained delay is highlighted by the fact the plaintiff signed a discovery plan on January 6, 2011 which required oral examination and mediation be completed as early as July 2011.

[31] It is submitted further that after the first administrative order was set aside on November 25, 2013, with a new court-imposed condition that the action had to be set down for trial by June 30, 2014, the plaintiff did only two things; namely, serve her motion materials to amend the statement of claim to add BTP, and argue that motion on January 29, 2014. Some six months later, the action was dismissed on August 7, 2014. Thus, they submit that the plaintiff took no steps to advance the action during those six months. However, the plaintiff’s evidence is that her counsel attempted to schedule oral examinations on May 27, 2014. The defendants deny receiving that letter of May 27, 2014, thus it was not included in the insurer’s chronology, attached hereto as Appendix “A”.

[32] While the plaintiff outlined the steps taken in this action in the affidavit of Patricia Sim, she fails to provide an explanation for the delay in completing each of the steps. Furthermore, she has not explained the failure to comply with the discovery plan agreed to in 2011, the timetable ordered by Master Brott’s order of June 2012, and to set the action down for trial by June 30, 2014 as ordered by Master Glustein. The plaintiff bears the primary responsibility for advancing the litigation.

[33] For the above reasons, it is my view that the plaintiff has failed to adequately explain the delay in this action.

Inadvertence in Missing the Deadline

[34] The plaintiff must explain her inadvertence in failing to set the action down for trial by June 30, 2014 as ordered by Master Glustein on November 25, 2013.

[35] The evidence of Ms. Sims is that on or about June 18, 2014, she verbally instructed her clerk to schedule a motion to extend the deadline to set the action down for trial to avert an administrative dismissal given the impending deadline of June 30, 2014. However, her clerk failed to do so. Her clerk was on vacation from June 19, 2014 to July 7, 2014 for her wedding. The error was not discovered until the action was dismissed on August 7, 2014.

[36] The defendants submit that the deadline was not missed through inadvertence. They rely on Master Dash’s explanation of the second factor in Reid, as follows:

Inadvertence in Missing the Deadline: The plaintiff or her solicitor must lead satisfactory evidence to explain that they always intended to set the action down within the time limit set out in the status notice, or request a status hearing, but failed to do so through inadvertence. In other words the penultimate dismissal order was made as a result of inadvertence.

[37] The defendants contend that the plaintiff missed several deadlines for reasons other than inadvertence. Further, they submit that it is unreasonable to assume that having only recently revived the action, the plaintiff would inadvertently miss a tight seven-month, court-imposed deadline. In particular, she missed the first deadline set out in Master Brott’s order of June 21, 2012 which required the action to be set down for trial by June 6, 2013. The action was dismissed the first time because the plaintiff missed the first deadline. Despite being granted a seven month reprieve after missing the first deadline, the plaintiff did not attempt to schedule examinations for discovery between November 2013 and June 30, 2014. Having missed the second deadline, the action was dismissed. However, as I noted above, the plaintiff’s evidence contains a letter dated May 27, 2014 requesting to conduct examinations for discovery, albeit with no follow-up communications which the defendants deny receiving. The supplementary affidavit of Patricia Sim, sworn on May 25, 2015 provides a copy of an email wherein counsel for the employer inquired about rescheduling discoveries.

[38] The defendants also argue that this is the plaintiff’s third “kick at the can”. They rely on Master Dash’s observations in Reid, at para. 20, that the bar for proving inadvertence is higher than after a status hearing as the plaintiff will have already had her second “kick at the can”. In Mayerische Landesbank Gironzentrale v. Sieber, [2008] O.J. No. 2372 (Master) at para. 15, Master Dash dealt with the issue of a second missed deadline, as is the issue herein, where he stated the following:

If the status hearing proceeded on an opposed basis the plaintiff may well have been required to explain the delay and show cause to the presiding master or judge why the action should not be dismissed under rule 48.14(8). If the deadline for setting the action down made at the status hearing passes and the action has not been set down and in the result the action is dismissed by the Registrar under rule 48.14(4) the plaintiff, in asking to set aside that order, is in effect asking for a “second kick at the can”. He is asking for a second indulgence. The first was to extend the deadline set out under rule 48.14(1) and which resulted in the status notice and the extension order at the hearing. The second is to extend yet again the deadline set at the status hearing which has now passed and which resulted in the dismissal. In my view the court while still considering all factors to arrive at the result that is just in all the circumstances, should examine most carefully and in some detail the cause of the additional delay and why the second deadline was missed. The delay to be considered is now twofold – from the institution of the action to the date of the status hearing and then from the date of the status hearing to the date the action was dismissed. (emphasis added)

[39] The only explanation offered by the plaintiff for missing the deadline of June 30, 2014 is Ms. Sims’ clerks’ failure to schedule a motion to extend the deadline in order to avert an administrative dismissal. Ms. Sims gave those instructions on or about June 18, 2014, approximately 12 days before the expiry of the deadline.

[40] There is also the evidence of the plaintiff who makes a blanket statement at paragraph 6 of her affidavit that: “I always intended to pursue this action and at no time did I ever advise any of the lawyers at Grillo Barristers that handled my file, to delay this action or cease pursuing it.” This statement however does not address the second factor of inadvertence in missing the deadline.

[41] As stated by Master Dash in Reid, cited above, “The plaintiff or her solicitor must lead satisfactory evidence to explain that they always intended to set the action down within the time limit . . . but failed to do so through inadvertence”. I find that the plaintiff’s evidence fails to address the main point; that is, the plaintiff’s intention to set the action down within the time limit.

[42] Given that this action had already been dismissed for delay previously, in my view, at a minimum, the plaintiff ought to have explained why there was a tight seven-month timeline from Master Glustein’s order on November 25, 2013 to June 30, 2014, the new date to set the action down for trial. Based on a reading of Master Glustein’s order, the motion was unopposed, and presumably, the seven-month timeline was proposed by the plaintiff. In my view, seven months to complete all of the remaining steps in the action was grossly unrealistic. These steps included the following: bring a motion to add BTP, argue that motion, serve BTP if successful, await receipt of BTP’s defence and affidavits of documents, schedule and conduct examinations for discovery of numerous parties, satisfy undertakings, possibly bring an undertakings motion, and schedule and conduct mediation. The only steps completed during those seven months was the motion to add BTP which was dismissed on March 24, 2014, followed by a brief letter from plaintiff’s counsel seeking to schedule examinations for discovery with no follow up. Again, defence counsel deny receiving this letter.

[43] In conclusion, there is simply a lack of evidence to reach a finding that the plaintiff always intended on setting this action down for trial “within the time limit.” There is no doubt that the plaintiff intended on setting the action down for trial; however, that is not the factor that must be considered on a motion to set aside an administrative dismissal. Nor is it an adequate explanation given that this dismissal order is the second one or a “third kick at the can” when considering the status hearing being the first extension of the timeline to set the action down for trial. It appears that it was an oversight, at best of plaintiff’s counsel to propose to Master Glustein such a tight and unrealistic timeline to complete the remaining steps in the action.

Promptness in Bringing Motion to Set Aside Dismissal Order

[44] 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.

[45] The dismissal order was issued on August 7, 2014. Immediately thereafter, plaintiff’s counsel sent a copy of the dismissal order to all parties and advised that they would be bringing a motion to set aside the order. On September 15, 2014, the plaintiff filed a notice of motion seeking to set aside the dismissal order.

[46] There is no dispute that the plaintiff brought this motion promptly.

Prejudice to the Defendants

[47] The plaintiff has the onus to demonstrate that the defendants will suffer no prejudice if the action is allowed to proceed.

[48] 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.

[49] 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 (Ont. C.A.), 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)

[50] 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 (Ont. C.A.), at para. 4)

[51] 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)

[52] 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)

[53] 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 a finality to litigation” and finality is “a compelling consideration”.

[54] 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.

[55] The plaintiff contends that there is no evidence of actual prejudice to the defendants if the dismissal order were set aside and this action be reinstated. She submits further that the defendants did not oppose Master Glustein’s order of November 25, 2013 when the dismissal order made on June 11, 2013 was set aside; therefore, there is no prejudice to the defendants that arose over the ensuing nine months after the order made on November 25, 2013 and the registrar’s dismissal order issued on August 7, 2014. The plaintiff contends that she has produced a plethora of medical evidence since the action commenced and that the insurer was satisfied with her production evidenced by the fact that the insurer did not request a timeline for production of further documents from the plaintiff as a term of Master Glustein’s order.

[56] In addition, the plaintiff cites the changes to rules 48.14 effective January 1, 2015, which changed the dismissal for delay timelines from two years from the filing of the first defence to five years from the commencement of the action. Thus, it is submitted that if the new dismissal timeline of five years were applied to this action which was commenced on December 11, 2009, it would not have been subject to dismissal until December 11, 2014. Here, the action was dismissed on August 7, 2014, prior to the new dismissal timeline.

[57] The defendants rely on Master Dash’s description of the fourth Reid factor, at paragraph 41, as follows:

No Prejudice to the Defendant: The plaintiff must convince the court that the defendants have not demonstrated any significant prejudice in presenting their case at trial as a result of the plaintiff’s delay or as a result of steps taken following the dismissal of the action . . . However to bar the plaintiff from proceeding with her action on the ground of prejudice, the defendant must lead evidence of actual prejudice.

[58] They contend that the passage of time in this action constitutes actual prejudice because the issue in this action relates to the plaintiff’s medical condition when she applied for disability benefits and the fact that medical conditions can change over time. It is submitted further that courts have recognized the importance of conducting oral examinations of a plaintiff in long-term disability actions.

[59] The defendants rely on the decision in Savundranayagam v. Sun Life Assurance Co. of Canada, 2008 CanLII 54788 (ON SCDC), [2008] O.J. No. 4215, where the Divisional Court upheld an administrative dismissal made at a status hearing. As in the case at bar, that action involved a claim for long-term disability benefits. The court noted the uniqueness of actions that involve claims for long-term disability benefits and the importance of the defendant being able to assess the file at an early stage to determine if further evidence is needed. It was held that prejudice to the defendant arises if it cannot make a determination as to whether further medical opinions are required. It was held further that it is the loss of opportunity to obtain a timely medical review of the plaintiff’s condition that cannot be compensated through costs or an adjournment.

[60] The plaintiff distinguished this case on the facts. Here, the plaintiff’s evidence as set out in the affidavit of Patricia Sim, at paragraph 44, is that the plaintiff has made lengthy documentary production regarding her damages, including OHIP records, clinical notes and records of her medical providers, prescription summary, WSIB file and her income tax returns from 2007 to 2013. Further, contrary to the plaintiff herein, the plaintiff in Savundranayagam had not delivered an affidavit of documents, which the court noted at paragraph 17 would have clarified the extent to which medical records remained available. Therefore, the plaintiff submits that there is no prejudice to the defendants as they have been able to assess the file from an early stage given the volume of production made by the plaintiff and the production of her sworn affidavit of documents.

[61] Similarly in Dynes v. Standard Life Assurance Co., 2012 ONCA 191, at para. 12, the Ontario Court of Appeal in a similar disability action accepted that long-term disability insurers can be prejudiced by the passage of time if the plaintiff fails to move the action forward and fails to produce medical evidence of the claimed disability, in that case of more than seven years, thus preventing the defendant’s early assessment of the basis for and the strength of the plaintiff’s disability claim over time.

[62] The plaintiff also distinguishes Dynes on its facts. In Dynes, the defendant insurer brought the motion to dismiss the action for delay under rule 24. The motions judge dismissed the action due to a nine-year delay and where the plaintiff, having declared bankruptcy, took no action to add the trustee as a party to the action and upon his discharge from bankruptcy, took no steps to advance the action despite repeated requests by the defendant’s lawyer for medical production in support of the disability claim. The plaintiff submits firstly that the delay in the case at bar was less than five years from commencement to September 2014 when the motion was brought. Secondly, it is argued that contrary to the plaintiff in Dynes, the plaintiff herein has made full production of documents relating both to the issue of entitlement of benefits and her damages from an early stage.

[63] In Cervo v. State Farm Mutual Automobile Insurance Company, 2006 CanLII 37119 (ON CA), [2006] O.J. No. 4378 (C.A.), at paras. 67-69, the Ontario Court of Appeal endorsed similar logic as in the prior cases regarding prejudice that may arise from the lost opportunity of not being able to speak to witnesses and evaluate the claim at an early stage. For the same reasons set out above, the plaintiff submits that given the plaintiff’s timely documentary production, the defendants cannot rely on any loss of opportunity argument.

[64] The employer submits that there is a presumption of prejudice given the passage of time and as witness memories fade. The allegations in the statement of claim include damages for breach of employment contract, loss of employment, failure to accommodate and punitive, aggravated, exemplary and general damages. The employer argues that these claims will rely on the memories of those involved in the events. It is submitted further that the parties have been unable to preserve witness memories through examinations for discovery and the defendants’ attempts to conduct examinations have been thwarted repeatedly by the plaintiff’s motions to amend the statement of claim, adjournments of motions, the status hearing and the first dismissal for delay.

[65] The plaintiff also made allegations of negligence against the employer and Reilly relating largely to the activities of BTP at the work site. The employer submits it is prejudiced by the plaintiff’s failure to preserve evidence from BTP with respect to the work it performed at the work site.

[66] For the following reasons, I find there is no presumption of prejudice to the defendants.

[67] The strongest point against a finding of presumption of prejudice is the fact that the defendants not only consented to the first dismissal order being set aside, they took no position on the motion to set aside the second dismissal order. The action was dismissed merely nine months after the second order setting aside the dismissal order.

[68] There is clear evidence that the plaintiff continued to make production of medical and damage documents throughout the action, as well as producing a sworn affidavit of documents. Further, there is no evidence that the defendants requested additional production of documents or that a motion for production was necessary.

[69] Furthermore, all parties have produced sworn affidavits of documents, albeit Reilly’s was not delivered until sometime after the order amending the statement of claim and service upon him. However, Reilly had early notice of the claim as the first attempt to serve him was only four days after issuance of the statement of claim. There is no issue regarding preservation of documents regarding the claims against him given the early notice.

[70] For the above reasons, I find that documents have been preserved and thus there is a solid documentary foundation upon which to conduct examinations for discovery and for the parties to refresh their memories regarding the alleged facts and allegations.

[71] In my view, the submission that the defendants are prejudiced due to the plaintiff’s failure to preserve evidence from BTP with respect to the work it performed at the work site is not well founded. Firstly, the plaintiff would not be in possession of BTP’s documents relating to their work; rather, Reilly would be the more likely party to be in possession of those documents. As Reilly is a party to this action and is the party who it appears contracted with BTP on behalf of the building owner and who likely communicated with BTP throughout the construction project, it is reasonable to assume that the relevant documents would be in Reilly’s possession, not the plaintiff’s possession.

[72] Lastly, I reject the defendants’ argument that they have been prejudiced by not being able to conduct an examination for discovery of the plaintiff due to delay in bringing the motion to add BTP as a party and to have all parties conduct examinations at the same time. In my view, there is no reason why the defendants could not have conducted an examination for discovery of the plaintiff by July 2011 in accordance with the discovery plan. Clearly the defendants had the intention to examine the plaintiff by that time; however, they agreed to delay discoveries until all necessary parties were joined to the action. Therefore, the defendants’ argument regarding prejudice is, with respect, without merit.

[73] There being no presumption of prejudice, the onus shifts to the defendants to demonstrate actual prejudice that arose after the subject dismissal order.

[74] There is no evidence that suggests documents have been lost, witnesses died, had disappeared or that their memories have been impaired. There were merely months from the plaintiff’s last day of work on September 11, 2008 to the insurer’s denial of benefits on December 15, 2008, followed shortly thereafter with plaintiff’s counsel’s letter regarding her claim for disability benefits dated January 17, 2009. By mid-January 2009, the insurer was aware that the plaintiff had retained legal counsel and of the likelihood of litigation. Similarly the employer was aware of the plaintiff’s status with respect to her disability benefits followed by its termination of her employment six months later in March 2009 and the possibility of litigation. Therefore, I find that both the employer and the insurer had early knowledge of the likelihood of litigation, thus it follows that they would likely have preserved relevant documents prior to this action being commenced.

[75] In conclusion, I find the defendants have not demonstrated any actual prejudice from the time this action was dismissed in August 2014. It follows that had the defendants suffered prejudice from delay in this action, they would have resisted the motion to set aside the second dismissal order; rather, they were not opposed.

Conclusion

[76] The plaintiff failed to satisfy her onus regarding the first two Reid factors. However, a plaintiff is not required to satisfy each of the four factors in order to have the dismissal order set aside. The court is required to take a contextual approach in order to achieve a result that is just in all the circumstances.

[77] In my view, there has been significant unexplained delay in this action. Examinations for discovery have not taken place in almost four and one half years since statements of defence were delivered by the employer and the insurer to the time this action was dismissed in August 2014. Discoveries were delayed; albeit on consent, primarily due to the plaintiff’s unexplained delay in bringing a motion to add BTP as a party defendant.

[78] Further, in my view, the timelines agreed to by all parties as set out in the discovery plan and the two timetable orders that resulted from the two dismissals were impracticable given the state of the action at the relevant times. Had plaintiff’s counsel taken a more thoughtful and logical approach to the timelines and included time to bring the two motions to amend the statement of claim, it is likely that the action would not have been dismissed once, if not the second time.

[79] It cannot be said that the plaintiff took no steps to advance this action. She amended the statement of claim, and attempted to do so a second time, she delivered an unsworn followed by a sworn affidavit of documents, produced schedule “A” documents, brought two motions to set aside dismissal orders. In my view, those steps demonstrate a clear intention to proceed with the action. Although it is not inactivity, the activity has proceeded at a very slow pace.

[80] For the above reasons and given my finding of no prejudice to the defendants if this action is permitted to proceed, in my view it is just in the circumstances to permit this action to proceed with tight timelines for completion of the remaining steps.

[81] Therefore, the plaintiff’s motion to set aside the registrar’s dismissal order is hereby granted.

[82] The following timetable shall apply:

1. Complete examinations for discovery of all parties by February 1, 2016;

2. Satisfy undertakings by May 1, 2016;

3. Schedule any undertaking and/or refusals motion by July 1, 2016;

4. Complete mediation by December 1, 2016;

5. Plaintiff shall set the action down for trial by January 13, 2017.

[83] Should any of these timelines be problematic, counsel may request that a timeline be varied by writing to me with short submissions explaining the reason, copied to all parties, within 14 days of this decision. If the proposed amendment is on consent, I would ask that requesting counsel please include a signed consent by all parties. If not on consent, any opposing party may make submissions within seven days of receipt of requesting counsel’s submissions.

[84] As the plaintiff was successful on this motion, the defendants would ordinarily not be entitled to costs. However, the defendants seek costs in the event that the motion is granted. As submitted by the employer, this is the plaintiff’s third attempt to revive this action after a status hearing and two administrative dismissals. The employer submits further that it opposed this motion due to the inordinate delay by the plaintiff.

[85] I am inclined to agree with the employer’s argument for costs; however, I have discounted the costs substantially to take into consideration that the defendants might have consented to a realistic but firm timetable for the completion of the steps in this action rather than oppose this motion given the steps the plaintiff has taken to advance the action and the fact that they did not oppose the setting aside of the second dismissal order.

[86] Therefore, pursuant to rule 57.01(2), the plaintiff shall pay costs to the employer and the insurer of $2,500 each, payable within 30 days.

(original signed)__

Master Lou Ann M. Pope

Released: September 9, 2015 _______________-