SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Kamran Ameri v. Derek Brass

Court File No.: CV-11-433508

2015 ONSC 5633

HEARD: September 10, 2015

BEFORE: MASTER R.A. MUIR

COUNSEL: Jennifer Klotz for the plaintiff Stephen G. Gillies for the defendant

ENDORSEMENT

Master R.A. Muir -

[1] The plaintiff brings this motion pursuant to Rule 37.14 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) for an order setting aside the order of the registrar dated January 30, 2015 dismissing this action for delay.

[2] The defendant is opposed.

[3] This action involves a claim for damages by the plaintiff for what he alleges were false allegations of criminal behaviour made against him by the defendant. The defendant denies the plaintiff’s allegations.

[4] This action was started on August 24, 2011. A statement of defence was filed on November 14, 2011 and a reply was delivered on December 5, 2011.

[5] Documentary and oral discovery is mostly complete, subject to a few remaining issues involving undertakings and refusals. A motion addressing those issues was brought and adjourned. It cannot be rescheduled due to the dismissal of this action.

[6] The plaintiff also brought a motion to obtain an order exempting this matter from mandatory mediation and a motion for non-party production of a police file.

[7] In March 2014, the parties agreed to a timetable order that provided for a set down deadline of December 2014. The plaintiff did not comply with this deadline and this action was then dismissed for delay by the registrar on January 30, 2015.

[8] This motion was initially scheduled for June 17, 2015. It was adjourned to today as it appears that insufficient time was booked and because the plaintiff had served supplementary evidence just prior to the first return date.

[9] The law relating to motions for an order setting aside an administrative dismissal order is summarized in my decision in Grzenda v. Scott, 2012 ONSC 4314 (Master) at paragraph 5. Four factors are of central importance. The court must consider the explanation for the delay, whether the deadline was missed due to inadvertence, any delay in bringing the motion to set aside the dismissal order and prejudice to the defendant. Prejudice is the key consideration.

[10] In addition, the Court of Appeal has released a recent decision that appears to add some refinement to this test. The court has held that in most cases, the issue of prejudice figures largely in determining whether to set aside a dismissal for delay. See MDM Plastics Limited v. Vincor International Inc., 2015 ONCA 28 at paragraph 24. The Court of Appeal emphasized that judges and masters must balance any prejudice to a defendant against the prejudice to the plaintiff from having the case dismissed. See MDM at paragraph 26. Ultimately, the court must take a contextual approach and consider all of the circumstances of each particular case and make the order that is just. See MDM at paragraph 12.

[11] These are the factors and principles I have considered and applied in determining the issues on this motion. In my view, it is just that the dismissal order be set aside.

[12] In my view, there has been very little unexplained delay with this action. This action is four years old, well within the five years dismissal deadline in the current amended version of Rule 48.14. Almost all necessary steps have been taken in order to be ready to set this action down for trial. Production is complete. Oral discovery has taken place. An order has been obtained exempting this action from mandatory mediation. The plaintiff has taken positive steps to attempt to secure production from non-parties. A motion was brought to obtain answers to questions refused on the defendant’s examination for discovery.

[13] It is true that the refusals motion has been adjourned on several occasions because the master was not satisfied with the motion materials. However, that does not alter the fact that the plaintiff was taking real steps to advance this action to a point where it can be set down for trial. Motions of this nature should not turn into a detailed month by month examination of the conduct of an action. The court should take a broad view of what has been accomplished and what remains to be done. The plaintiff’s explanation for any delay does not need to be perfect. It simply needs to be adequate.

[14] In my view, the plaintiff has adequately explained any delay with this action.

[15] I am also satisfied that the set down deadline was missed due to inadvertence. The plaintiff was actively pursuing answers to refusals with its motion before Master Haberman. The motion was adjourned in January 2015 due to health issues on the part of Mr. Klotz. After the dismissal order was received, the plaintiff’s lawyer immediately contacted the defendant’s lawyer and advised that the plaintiff intended to seek an order setting aside the dismissal. This motion was then scheduled soon after. None of these steps are consistent with the actions of a plaintiff who has decided to abandon a claim. The failure to meet the set down deadline or to seek an extension of time must have been inadvertent. No other explanation makes sense in the circumstances. This factor has been met.

[16] The defendant concedes that this motion has been brought promptly as required by the Rules and the authorities. I agree. It was scheduled in a timely manner having regard to the schedules of counsel and the availability of court dates. The adjournment from June to September was unfortunate but not lengthy. This element of the test has been satisfied.

[17] I am also satisfied that the plaintiff has rebutted any applicable presumption of prejudice. First, the delay in this action is not that significant in my view and therefore the presumption of prejudice is not that strong. As I have noted, the claim is well within the five year dismissal period now found in the amended version of Rule 48.14. There is also no evidence of the defendant’s reliance on the finality of the dismissal order. The defendant knew almost immediately that the plaintiff intended to bring this motion and seek leave to continue with his action.

[18] In my view, the plaintiff has led sufficient evidence to rebut the presumption of prejudice arising from the passage of time. Production is complete. Oral discovery has taken place. Evidence has been preserved. All witnesses are available to give evidence at trial. The defendant has been aware of this action and represented by counsel from the outset. The defendant had ample opportunity to conduct an investigation and collect and preserve any necessary evidence. The refusals motion is ready to be scheduled as soon as the action is restored. Any further delay will be minimal.

[19] The defendant argued that he will be prejudiced in defending this action at trial as a result of the loss of the plaintiff’s diary and certain videotape evidence. It should be noted that none of this evidence was lost after the dismissal of the action. In addition, it is my view that these examples of prejudice do not arise as a result of any inordinate delay on the part of the plaintiff.

[20] Moreover, the defendant has apparently known about the lost videotape evidence since at least March 2013 when the plaintiff’s supplementary affidavit of documents was served. The defendant has known about the lost diary since February 19, 2014. Despite this knowledge, the defendant agreed to a timetable order in March 2014 that provided for a December 2014 set down deadline. This consent is not consistent with the actions of a defendant that was concerned about prejudice arising from missing evidence. See MDM at paragraphs 32 to 34. I acknowledge that the defendant’s lawyer wrote a letter to the plaintiff’s lawyer in September 2013 expressing his opposition to extending the set down deadline. However, it appears that by March 2014 the defendant had changed his position. The plaintiff has satisfied this part of the test.

[21] A significant amount of the evidence on this motion addressed the merits of this action. As I stated in my decision in Tribar Industries Inc. v. KPMG LLP, 2011 ONSC 1699 (Master) at paragraphs 34-39, the merits may be an appropriate consideration on motions of this nature but only in the clearest of cases and where the action is so clearly devoid of merit that it has no chance of success. To the extent that this view is contrary to any decisions of my colleagues I must respectfully disagree. In my view, this is clearly not such a case.

[22] The defendant argued that he still does not know the case he has to meet four years after this action was started. He takes issue with the nature of the claims advanced by the plaintiff and the manner in which they have been pleaded. The Rules provide remedies for such alleged deficiencies. The defendant could have sought particulars or moved to strike all or part of the claim. He chose not to. In my view, the sufficiency of the pleadings is not a relevant consideration on this motion.

[23] When deciding motions of this nature, the court is to adopt a contextual approach in which it weighs all relevant considerations to determine the result that is just in the circumstances. The court must, of course, balance the strong public and private interest in promoting the timely resolution of disputes with the entitlement of a plaintiff to have his claim decided on the merits. However, the general preference in our system of civil justice is for the determination of disputes on their merits.

[24] In my view, the plaintiff has satisfied all of the relevant factors, including the key consideration of prejudice.

[25] For these reasons, I have concluded that it is just in the circumstances of this action that the dismissal order of the registrar dated January 30, 2015 be set aside.

[26] The plaintiff seeks partial indemnity costs in the amount of $7,918.28. The defendant suggests no costs or costs to the unsuccessful party. I agree with the defendant that there is an element of an indulgence in the relief granted by the court today. For this reason, I understand the defendant’s position in requiring the plaintiff to provide some initial evidence in support of the relief sought. However, it is my view, on the whole of the record, that this motion should not have been opposed in the circumstances. The plaintiff has satisfied all of the relevant factors. Some reduction should be made for the requirement that the plaintiff deliver some evidence to justify the relief sought as well as for the attendance on June 17, 2015. I agree that the time booked was insufficient and the reply record was served late. In my view, it is fair and reasonable for the defendant to pay the plaintiff’s costs of this motion fixed in the amount of $3,500.00, inclusive of HST and disbursements. These costs shall be paid within 30 days.

[27] I therefore order as follows:

(a) the order of the registrar of January 30, 2015 is hereby set aside;

(b) this action shall be set down for trial by August 24, 2016 failing which is shall be dismissed by the registrar without further notice; and,

(c) the defendant shall pay the plaintiff’s costs of this motion fixed in the amount of $3,500.00, inclusive of HST and disbursements, within 30 days.

Master R.A. Muir

DATE: September 10, 2015