COURT FILE NO.: 07-CV-333540
MOTION HEARD: 20150120
REASONS RELEASED: 20150923
SUPERIOR COURT OF JUSTICE – ONTARIO
BETWEEN:
Dr. M. MARCINIAK
Plaintiff
and
LOMBARD CANADA LTD., PAUL LEE and PAUL LEE AND ASSOCIATES
Defendants
BEFORE: MASTER D. E. SHORT
COUNSEL: Derrick M. Fulton Fax: 416-225-7112
- for the Plaintiff
B. Robin Moodie Fax: 416-340-1862
- lawyer acting as agent for the Plaintiff
Julia Wilkes Fax: 416-351-9196
- for Lee Defendants
RELEASED: September 23, 2015
Reasons for Decision on Status Hearing
Transition Rule 48
[1] A number of changes to the Rules of Civil Procedure were enacted by Ontario Regulation 170/14 in late 2014. In particular the problematic concept of Status Hearings was largely altered. This motion relates to a Status Hearing that was scheduled in 2014 to be held in early January of 2015.
[2] The applicable amended portions of Rule 48 now reads:
Subject to subrule (12), every status notice served under this rule, as it read immediately before January 1, 2015, ceases to have effect on that date, if the action was not dismissed before that date.
If a status hearing in relation to a status notice was scheduled but not held before January 1, 2015, this rule, as it read immediately before that date, continues to apply to the matter.
[3] As a consequence I am addressing this motion under the former Rule 48 regime.
I. Overview
[4] This is an action for $400,000 dollars in alleged damages against a legal professional for failure to commence an action against an insurance company. It is premised on events that occurred in March of 1999, well over 15 years ago.
[5] The plaintiff, Dr. Marciniak is a medical doctor with offices in and around Toronto. In March 1999 he moved offices from Pickering to Toronto, during the move “his office equipment was damaged.”
[6] The defendants Paul Lee and Paul Lee and Associates (collectively “Paul Lee”) originally represented the plaintiff with respect to a claim for coverage and indemnity from his insurer, Lombard, for damaged equipment. The plaintiff terminated his relationship with Paul Lee in 2003.
[7] At the Status Hearing originally scheduled before me in October of 2014, it became clear that the defendants were asserting that the action ought to be dismissed for delay and as a consequence this was to be a seriously contested Status Hearing.
[8] As a result the plaintiff’s current counsel requested an adjournment to file materials etc. I granted that request on terms and established a timetable for the delivery of affidavits and the conducting of any cross examinations. The return date of the Status Hearing was established as early in 2015 and as indicated at the outset was based upon the “old rule”.
[9] The defendants argue that the plaintiff has no “acceptable” explanation for the delay occasioned since filing a trial record in June 2009 and that as a consequence the action ought to be effectively dismissed by me.
[10] The original pleadings provide an outline of the history of the matter from both perspectives.
[11] The Statement of Claim, issued May 24, 2007, reads in part:
Pursuant to the Insurance Contract a proof of loss was sent to Lombard Canada.
Lombard Canada rejected the proof of loss and refused to specify the basis in which the proof of loss was rejected.
Accordingly, Dr. Marciniak instructed Paul Lee and the Firm to commence an;. action against Lombard Canada to recover the amount owed pursuant to insurance contract.
Paul Lee and the Firm represented at all material times that a claim had been brought against Lombard Canada.
In or around 2003, Dr. Marciniak was not satisfied with the progress of the Claim and asked that the file be returned to it.
Shortly after Dr. Marciniak received the file, he discovered for the first time that no claim had been brought against Lombard Canada.
Dr. Marciniak retained the Firm and Paul Lee to act for him to pursue the Claim.
The implied terms of the retainer ('the Retainer") required that the Firm and Paul Lee to exercise the care and skill to be reasonably competent lawyer in performing their duties pursuant to the Retainer. Further, or alternatively, the Firm and Paul Lee owed a duty of care in that effect.
Further, or in the alternative, the Firm and Paul Lee agreed to exercise the care and skill to be expected of a reasonable competent lawyer in performing their duties pursuant to the Retainer to ensure that they proceed diligently to pursue Lombard Canada (the "Contract").
The Firm and Paul Lee were negligent or in the alternative breached the Contract by failing to take the following steps to pursue the Loss against Lombard Canada:
(a) they failed to take such necessary steps to ensure that proper proof of losses were delivered to Lombard Canada; and,
(b) they failed to take such necessary steps to commence and pursue an action against Lombard Canada.”
[12] The Statement of Defence responds with these allegations:
These defendants agree that the law firm was retained with respect to an alleged loss of goods belonging to Sports Medicine during a move or moves from Pickering Ontario to premises in Toronto.
The retainer, which was oral, authorized the law firm to prepare and file proofs of loss with Lombard Canada.
The firm prepared and filed such proofs of loss which were incomplete because of the failure of the plaintiff and/or Sports Medicine to provide details of the dollar value of the alleged loss.
In addition, the plaintiff or Sports Medicine failed to provide any valuation of the furniture and equipment allegedly damaged. The proofs of loss could therefore not be properly and completely completed to the knowledge of the plaintiff.
By letter dated December 27, 2000, Lombard Canada rejected the proofs of loss that had been filed by the firm .
The proofs of loss were rejected because among other things Lombard Canada properly determined that no damage arose from the moves to the furniture and equipment described in the proofs of loss. Rather, the equipment and furniture fell into three categories with respect to the claim:
i. there was no damage of any sort apparent;
ii. one-third of the equipment was suffering, only, from reasonable wear and tear arising from use and age and not the move; and
iii. one-third of the equipment was exercise equipment which was merely disassembled following the move, and required re-assembly.
Accordingly, neither the plaintiff nor Sports Medicine had suffered any loss with respect to this furniture and equipment as alleged or otherwise and the claim was properly rejected.
In any event, if the equipment and furniture were damaged as alleged, then the plaintiff and Sports Medicine made a claim for compensation from the mover, Hodori Express Canada which caused the loss. The plaintiff has received recompense from Hodori therefore, particulars of which are known to the plaintiff and not these defendants.
Subsequent to the rejection of the proofs of claim as detailed aforesaid, these defendants and the plaintiff discussed the commencement of an action to compel Lombard Canada to make payment of indemnity. He was not prepared to accept their advice that such action had no merit nor prepared to provide a retainer. He was therefore advised by these defendants that they would bring no action on his behalf. It was for this reason that these defendants did not bring an action against Lombard Canada.
At all relevant times, the plaintiff was advised that the contemplated action, that is the action referred to in the statement of claim against Lombard Canada, had no merit and was not worthwhile pursuing. The plaintiff accepted such advice.”
[13] Clearly there is a serious factual dispute regarding the nature of the instructions given and accepted, identified in the two pleadings which were subsequently amended in some respects.
[14] What is also clear to me is that the plaintiff now asserts that “in or around 2003” and that shortly after Dr. Marciniak “received the file”, he discovered for the first time that no claim had been brought against Lombard Canada.
[15] The evidence before me is that the file was returned to him by the Paul Lee firm on or about June 3, 2003. In the context of this over 15 year old case, it is difficult to establish how long is “shortly after” a particular date
[16] His current counsel, retained October 26, 2009 by the plaintiff, deposes in his affidavit to the following consecutive paragraphs:
“14. On February 6, 2003 the Lee Defendants returned Dr. Marciniak's file to him. Dr. Marciniak informed me and I verily believe that he was not satisfied with the progress of his case and that he requested his file from the Lee Defendants. ….
I am informed by Emma Gibson, D. Marciniak's office manager, (hereinafter "Ms. Gibson") that she contacted Lombard Canada on several occasions to discuss the Claim and Lombard were to retrieve their file and call her. On September 14, 2004 Ms. Gibson wrote to Lombard following up with them and requesting that they contact her. …
On January 17, 2005 Lombard informed Dr. Marciniak that their file was closed 3 years ago and that Dr. Marciniak's request for the file must be made through Lombard's Privacy Compliance Office…. “
[17] Significantly, in my view, there is no reference to the specific point in time when the plaintiff determined the failure to commence an action. Similarly the affidavit of the plaintiff filed on the motion simply reads at paragraph 6, “After receiving the file, I discovered that Paul Lee did not commence been brought against Lombard Canada and failed to protect my interests. Paul Lee missed the limitation period to commence an action against Lombard.”
[18] There is no positive assertion that this information was discovered prior to January 1, 2004. If it was not discovered by the plaintiff prior to that point in time, this action commenced in 2007, would seem to be potentially statute barred, based on the transition provisions in section 24(5) of the Limitations Act, 2002.
[19] I do not base my decision on the applicability of a possible limitation defence but do regard those circumstances and the delay in moving this case forward, as contributing to a contextual approach in this case.
[20] In any event, the plaintiff asserts that he “has always intended to pursue this matter and has been attempting to quantify those damages. The plaintiff asks this Court to restore this action to the trial list so that it may be decided on its merits.”
II. Onus and Applicable Test
[21] At a Status Hearing, the plaintiff bears the onus to establish both that (a) the matter should not be dismissed for delay and (b) there is no non-compensable prejudice to the defendants.
[22] On September 2, 2015, while this matter was under under reserve, Justices Sharpe, Lauwers and van Rensburg of the Ontario Court of Appeal released a decision which provided an overview of this area of the law and guidance on the approach to be taken in a similar situation.
[23] In Carioca’s Import & Export Inc. v. Canadian Pacific Railway Limited, 2015 ONCA 592, Justice van Rensburg was addressing an appeal from a motion judge’s refusal to restore an action to the trial list under rule 48.11. In reversing the judge’s order which had resulted in the action subsequently being administratively dismissed, the Court articulated these concerns and directions indicating the preference in all but the clearest of cases that an action should not be dismissed for delay. Her analysis considers earlier decisions in this area including Nissar v. Toronto Transit Commission, 2013 ONCA 361;115 O.R. (3d) 713 and 1196158 Ontario Inc. v. 6274013 Canada Ltd., 2012 ONCA 544; 112 O.R.(3d) 67:
“43. Where, as here, the refusal to restore an action to the trial list will result in its dismissal, the Nissar test, informed by the case law respecting rule 48.14 dismissals, will apply. This is because the inevitable result of the failure to restore the action to the trial list would be dismissal, as occurred here. As discussed in several decisions of this court concerning dismissal for delay, a motion judge must strike a balance between the need for efficiency and the need for flexibility, such that cases can be tried on the merits where there is a reasonable explanation for non-compliance with the rules: see 1196158 Ontario Inc., at para. 20, Fuller,[2015 ONCA 173] at para. 25, Faris v. Eftimovski, 2013 ONCA 360, 306 O.A.C. 264, at para. 24, and Kara v. Arnold, 2014 ONCA 871, 328 O.A.C. 382, at para. 9.
(i) Delay
- Nissar was an appeal from a refusal to restore an action to the trial list, where there had been many years of completely unexplained delay and no resistance by the defendant to moving the case along. The primary issue in Nissar was whether a Rule 48 or a Rule 24 test should be applied in a contested motion to restore. At para. 29, this court stated that the legal test for determining whether an action should be dismissed under rule 48.14 should be "adapt[ed]" to determine when an action should be restored the trial list. The plaintiff is required to provide an "acceptable explanation" for the delay and to satisfy the court that there would be no prejudice to the defendant if the action were to proceed: Nissar, at paras. 29-31. The court dismissed the appeal.
45 As to the nature of the explanation for delay, in the judgment followed in Nissar, 1196158 Ontario Inc., Sharpe J.A. referred variously to the requirement for the plaintiff to show an "acceptable", "satisfactory", or "reasonable" explanation for the delay. Therefore I take these adjectives to be interchangeable in this context. The motion judge in this case referred to the appellant's requirement to show a "reasonable explanation" for the delay, not an "acceptable explanation" as worded in Nissar. No error is alleged by either party with regard to the articulation of the test.
A motion to restore an action to the trial list is not a "blame game", where counsel should be required or encouraged to take a defensive stance and justify their conduct of the litigation on a month-by-month basis. Rather, in assessing whether a plaintiff's explanation for delay is reasonable, a motion judge should consider the overall conduct of the litigation, in the context of local practices, which can vary quite widely between jurisdictions. Practices for scheduling pre-trial conferences and trials differ throughout the province, because they must meet the needs of particular regions and courthouses. These practices can affect the expectations of the parties, their counsel and the courts as to timing.
…. a proper delay analysis does not consider the conduct of an action in a vacuum.” [my emphasis throughout]
[24] I therefore turn to a detailed examination of the conduct of this action to date.
III. History of Claim
[25] The action arises out of alleged damages to sports-medicine equipment and office furniture such as filing cabinets and tables (together, the “Property”) that the plaintiff claims to have owned at the time of the damage. According to the plaintiff, the Property was damaged during transport of the goods. The Property was insured by Lombard Canada Ltd. (“Lombard”) during the move.
[26] The plaintiff asserts that he retained Paul Lee and his firm to prepare and file Proofs of Loss with Lombard in respect of the damage caused to the Property. Lee arranged for a valuator to view the allegedly damaged goods. However, as a result of a conflict between Dr. Marciniak, and the potential appraiser, no appraisal was conducted at that time.
[27] The Proofs of Loss were submitted to Lombard with Dr. Marciniak’s estimates of the damages to the Property. Lombard denied coverage for failure to provide acceptable evidence of damage.
[28] The plaintiff asserts that the Lee defendants then failed to commence an action against Lombard. In 2007 (eight years after the initial loss) the plaintiff commenced this action against Lombard and the Lee defendants (for failing to sue the insurer in time).
[29] Examinations for discovery were completed by August 2008. The Lee defendants assert that the only evidence of the alleged damage to and value of the Property came from the plaintiff’s estimations included on his Proofs of Loss submitted to Lombard. In particular they assert, “No documentary evidence was attached to the Proof of Loss because (i) Dr. Marciniak got into a dispute with the appraiser and (ii) he did not provide any to the Lee defendants. This was one of the reasons that insurance coverage was denied.”
[30] The defendants’ factum notes that on his 2008 examination for discovery, the plaintiff refused to answer questions about the value of equipment and acknowledged the need for an appraisal report:
“Q: Okay. And sir, for the Apex bench press, again, what do you say was the value of the item immediately before the move?
• Mr. Radnoff: I’m not going to have him guess on that. If necessary what we will have to do is provide you with an expert report or any damage calculation. He’s not qualified to give that evidence.
• Mr. Adair: He’s not qualified to state the value of the equipment?
• Mr Radnoff: He’s not qualified to provide an expert report on the value of the equipment.
• Mr. Adair: I’m not asking if he can provide an expert report. I’m asking if he can tell me what the value would have been of the equipment immediately before the move.
• Mr. Radnoff: It would just be a guess and it would be information that is merely a guess.” [counsel’s emphasis]
[31] Mr. Radnoff issued the Statement of Claim in 2007 and was the Plaintiff’s counsel in this action until he obtained an Order removing himself as solicitor of record in August of 2009. A month earlier, on July 2, 2009 a Trial Record appears to have been filed by Dr. Marciniak’s counsel.
[32] Before me it was submitted that despite taking the position in April 2008 that Dr. Marciniak was not qualified to provide estimates of damages, “the plaintiff continues to cite his $400,000 estimate. Further, despite the acknowledgment that an appraisal report would be required to prove his damages, the plaintiff failed to serve an appraisal report in the subsequent six years.”
[33] I note in this regard that Master Hawkins appears from the Case History of this matter to have heard a refusals motion in February of 2009 relating to the 2008 discovery of the plaintiff by the insurer Lombard’s counsel. One of the directions made by Master Hawkins at that time reads:
“Question 1075 is proper as relevant to the amount of damages claimed in paragraph 1 (a) of the statement of claim, and to the defendant Lombard's denial that the plaintiff has suffered a loss alleged in paragraph 10 of its statement of defence.
The defendant Lombard is entitled to this information now as part of the discovery process. It is not obliged to wait until the plaintiff serves an expert's report on the quantum of loss. That report may possibly not be served until very close to trial. If the plaintiff does not personally know the answer, he is obliged to inform himself now as part of the discovery process.” [my emphasis]
[34] Also, at the time of the Refusals motion in February 2009, Master Hawkins approved a timetable for the completion of the various other tasks. Pursuant to the timetable, the matter was to be set down for trial by June 30, 2009. That timetable was met when the Trial Record was served en June 24, 2009.
[35] Prior to being set down for trial, the parties participated in a mediation on May 20, 2009. At that mediation, Dr. Marcinak and the Lee defendants agreed to dismiss the claim against Lombard on the basis that the plaintiff's claim was statute barred pursuant to the applicable limitation period for a claim under the policy.
IV. Problems Flowing from Removal of Plaintiff’s Counsel
[36] As noted above, Mr. Radnoff obtained an Order removing his firm as counsel on August 12, 2009. Although this Order had been obtained, no proof of service had been filed with the court, prior to the court faxing the Certification Form to set Pre-Trial and Trial Dates to the Radnoff Law Offices on September 11, 2009.
[37] For whatever reason it appears that a completed Certification Form was never filed with the court at any time prior to my holding the Status Hearing.
[38] I note in passing that the newly enacted rule (presently in force for newer actions), with my emphasis added, reads:
48.14 (1) Unless the court orders otherwise, the registrar shall dismiss an action for delay in either of the following circumstances, subject to subrules (4) to (8):
The action has not been set down for trial or terminated by any means by the later of the fifth anniversary of the commencement of the action and January 1, 2017.
The action was struck off a trial list and has not been restored to a trial list or otherwise terminated by any means by the later of the second anniversary of being struck off and January 1, 2017. O. Reg. 170/14, s. 10.
[39] No notice of such a pending dismissal is required and one might conclude that the drafters felt a period of two years from the date of striking was ample time to seek the restoration of a stricken case to the Trial List if a party wanted its action to proceed.
[40] I am advised that Dr. Marciniak retained Mr. Fulton, his present counsel, on October 26, 2009. Apparently Mr. Fulton experienced delay in obtaining the file materials. Counsel deposes that the Notice Appointing Strype Barristers as lawyer of record was served on defence counsel and mailed to the court via regular mail on January 7, 2010.
[41] However, for whatever reason the Case History does not reflect the filing of that Notice and in fact first records the filing of a Notice of Appointment of Solicitor by the plaintiff on July 25, 2014, following the sending of the Notice of Status Hearing in March 2014, to the party still on record, Dr. Marciniak who remained recorded on the Court’s records as an in person litigant.
[42] Mr Fulton’s affidavit evidence before me indicates that in February 2010, Mr. Fulton spoke with Mr. Adair, then counsel for the Lee defendants. Mr. Fulton's understanding from that phone call was that the real issue for the defendants was the quantum of damages. I understand from Mr. Fulton that he told Mr. Adair that he would contact him once he had obtained an appraisal.
[43] After speaking with Mr. Adair, Mr. Fulton wrote to the plaintiff on February 3, 2010:
“It appears that LawPro is simply waiting on a reasonable offer. And, they will pay an the amount if reasonable and if we can prove our damages. Unfortunately, this is a bit problematic. You have some photos of the goods and you have a general description of the goods. What we need to do is retain the services of an valuator [sic] to obtain
a number we can present to Mr. Adair. Without such a report, you would not be able to proper establish the value of the goods.”
[44] I interrupt the chronology to focus on various filing issues impacting on this case.
V. Known Unknowns
[45] Apparently Mr. Fulton’s then firm, Strype Barristers, was retained by the plaintiff in or around January 2010. The case history reflects that the action against Lombard and its Crossclaims were Dismissed on a without costs basis by Master Peterson on September 16, 2009 (prior to the entering of that retainer).
[46] However, the affidavit of service of the order removing Mr Radnoff was not filed until October 8, 2009.
[47] The very next Case History entry was made on November 1, 2010, being a date over a year later and over a year from the filing of the trial record. That entry indicates that by virtue of a direction by the registrar this activity occurred: “Result: Struck off Trial List-Administrative”.
[48] What I find troubling is that no one seems to have done anything to indicate an awareness or to respond to that event for over FOUR years.
[49] Internal changes of the specific counsel responsible for this matter for the Lee defendants were documented in court filings made in 2012 and 2013. BUT, the history is otherwise a tabula rasa until the court on February 20, 2014 saw fit to issue a Form 48C.2 , “Status Notice: Action Struck From Trial List”.
[50] That form indicates that the court records indicate the case was struck from the trial list and not restored within 180 days of being struck off . The Status Notice gives the parties 90 days to remedy the situation; otherwise the action will be dismissed for delay.
[51] The notice specifically provides that a status hearing may be requested, “to show cause why the action should not be dismissed”.
[52] Dr Marciniak is reflected as having filed such a request on February 25, 2014, five days after the notice was issued and sent to him (as he was recorded at that point a self-represented litigant).
[53] The History indicates it was not until July 25, 2014 that a Notice of Appointment of Solicitor was recorded as filed by the plaintiff appointing Mr Fulton and his current firm.
[54] Generally the case law tends to the view that “the longer the delay, the more cogent the explanation must be. Excuses that might be accepted a short time after the two year period has expired are less likely to be accepted later”. [ see Kara v. Arnold, 2014 ONSC 2647 at paras. 6-7, aff’d 2014 ONCA 871 at para. 17]
[55] The fact that the parties had incurred significant time and expense on the matter and that the matter was previously set down for trial is not a trump card for the plaintiff. In fact, these factors were considered by the Superior Court and Court of Appeal in Kara v. Arnold, supra, a very similar case to that before me. By the time of the status hearing, eleven years had passed since the defendant served the statement of defence (as opposed to seven years in this action). The Court considered that significant time and expense had been devoted to the case, and the fact that it was ready for trial. The plaintiffs testified that since the December 2010 discoveries, they had spent three years obtaining experts’ report. Nonetheless, the Court dismissed the plaintiff’s case for delay. The Court of Appeal upheld the dismissal.
[56] Here, to conduct a proper delay analysis I also need to considerer whether the parties entered into some form of “stand-still” arrangement.
VI. Was There Agreement Between Counsel?
[57] It is unclear what was the exact understanding between counsel with respect to the action not proceeding in 2010. Regardless of the precise understanding, is a failure of both sides to seek to dispose of the action or move it forward, over a four year period, relevant to a motion such as this?
[58] In a September 19, 2014 letter delivered in response to the contested status hearing, the plaintiff alleged that there was an “agreement” between the parties to hold the action in abeyance pending delivery of an appraisal report. On reflection the plaintiff’s counsel has altered that position somewhat. Instead, his counsel testified that there was an “understanding” between counsel. At question 141 Mr Fulton’s evidence was:
“But again, you keep going on about this agreement. It was sort of like more understood as being an understanding.”
[59] Mr. Adair testified that there was no such agreement or understanding to hold the action in abeyance.
[60] It seems at the conclusion of the conversation, Mr. Fulton agreed to get back to Mr. Adair. Mr. Fulton’s docket reads:
“Telephone call from John re file, will get back to him once I hear from my client re the report.”
[61] A few months after this discussion, on June 2, 2010, Mr. Adair wrote to Mr. Fulton threatening to bring a motion to dismiss the action for delay “unless there was some reason not to do so.”
[62] Mr. Fulton and Mr. Adair did not discuss this letter, but Mr. Adair's evidence was that from his perspective the reason not to bring a motion to dismiss the action for delay was if a bone fide appraisal was provided or if the plaintiff was self-represented (as the court might be inclined to grant an indulgence in that circumstance ).
[63] The next contact between counsel was over a year later, in September, 2011, when Mr. Adair wrote to Mr. Fulton to advise :
“There has been no activity in this matter since your appointment as lawyer of record in January of 2010. We have received instructions to bring a motion to dismiss the action for delay, with costs.”
[64] Almost another year later, on July 25, 2012, Mr. Adair again contacted Mr. Fulton. Mr. Adair called Mr. Fulton after determining that Mr. Fulton had changed firms. While neither individual clearly recalls this conversation, based on a review of Mr. Adair’s notes, both agree that (i) there was a discussion about Mr. Fulton filing a Notice of Change of Solicitors and (ii) Mr. Fulton advised Mr. Adair that an expert report had been obtained. Mr. Fulton testified that he would have also told Mr. Adair that he did not have instructions to release the report:
“I would not have told Mr. Adair that I had an expert's report, had I not told him also that I did not have instructions to release it. There would have been no reason for me to tell him I had an expert's report and not told him I did not have instructions to release it. That just would not have happened.” [my adjusted punctuation]
[65] Apparently, Mr. Adair in fact ultimately drafted a motion record another year later in 2013, but the motion materials were never served, nor was Mr. Fulton ever told that the materials had been drafted. Mr. Adair did not serve the motion materials in part because in 2013 he began setting up his own firm and was required to spend time dealing with transition issues, and because in the spring of 2013 it became clear that he would not be continuing with the file.
[66] Mr. Fulton does not deny that either the June 2, 2010 or September 13, 2011 letters were faxed to and received by Strype Barristers. However, it is Mr. Fulton's evidence that neither letter came to his attention.
[67] In the subsequent four years, the plaintiff never confirmed this “understanding” in writing or advised the Lee defendants why the expert report was not forthcoming. In fact, the plaintiff did not initiate any communication after the July 2012 call.
[68] Eventually, on November 8, 2013, Wardle Daley Bernstein Bieber LLP was appointed solicitors of record for the Lee defendants.
[69] Counsel contacted Mr. Fulton and advised him that the court records indicated that he was not on the record. “After her questions went unanswered, counsel for the Lee defendants advised Mr. Fulton that she had instructions to request a status notice.”
[70] Mr. Marciniak’s Affidavit notes that at this time in November 2013, Mr. Fulton’s file was in storage.
[71] It is clear to me that Dr. Marciniak has known since at least February 3, 2010 that it was necessary to obtain a report to establish his damages. In his letter of that date to Dr. Marciniak, Mr. Fulton stated:
“…You have some photos of the goods and you have a general description of the goods. What we need to do is retain the services of an valuator [sic] to obtain a number we can present to Mr. Adair. Without such a report, you would not be able to properly establish the value of the goods.” [emphasis added]
[72] Even if obtaining an expert report could be construed as a step in the litigation, it now appears that the report waswas obtained in May 2010 (not 2012). It is uncontested that the plaintiff failed to provide this report to the Lee defendants despite the plaintiff’s position that providing the report was the next step in the litigation and Master Hawkins’ February 2009 order.
VII. Contested Status Hearing
[73] By email dated February 25, 2014, the Lee defendants advised the plaintiff that they had requested a contested status hearing and that the action be dismissed for delay.
[74] Despite requests, Mr. Fulton did not take steps to be appointed counsel of record nor to respond to emails from counsel for the Lee Defendants. Again, the plaintiff seems to have elected to ignore this action and the requirements of the Rules.
[75] Although the status hearing form is clear on its face, Mr. Fulton testified that he did not understand that the defendants were requesting a dismissal. However, he testified that “within a few months” of February 2014, he learned that the Lee defendants were seeking to have the action dismissed for delay.
[76] At that time, the plaintiff did not advise the new counsel for the Lee defendants about (i) any understanding that the action was held in abeyance pending delivery of an expert report, (ii) advise the Lee defendants that he was still attempting to obtain an expert report, or (iii) provide a completed appraisal report.
[77] At the initial July 2014 Status Hearing before me , the matter was adjourned to be heard as a contested status hearing on October 8, 2014. Specifically I directed that materials for the hearing were to be filed by September 19, 2014.
[78] As noted above Mr Fulton was retained in October of 2009. On September 19, 2014, rather than provide his materials for the status hearing, the plaintiff delivered a “highly qualified” appraisal report of the 1999 loss, dated May 20, 2010[sic]. The appraisal report appears somewhat inaccurate in that in that it contains a certificate stating “I have made a personal inspection of the property that is the subject of this report”. However, under Statement of Assumptions and Limiting Conditions, the report states:
“With this file a major assumption was used with regards to the value of the assets. The assets were damaged approximately ten years ago and no longer available for viewing. Pictures were supplied by STRYPE but the assets to be appraised were not clearly identified in the supplied pictures. The assumptions made from the supplied written descriptions were (1) what the asset was, (2) the original condition before the damages and (3) the value of used office furniture in 1999.”
VIII. In Search of an Appraisal
[79] The Defendant’s assert that the plaintiff has failed to satisfy his onus on this motion.
[80] I agree with their position that the plaintiff failed to provide evidence of his alleged damages prior to setting the action down for trial in 2009. His new counsel advised him to obtain an appraisal of the allegedly damaged goods in February 2010. At that time, the plaintiff recognized that “only a selected few companies would be able to provide the appraisal”. Yet the only evidence about what he has done during the last five years is that he has sought a professional appraiser to provide a valuation in line with his belief as to the value of the Property. He has not particularized his efforts.
[81] As a result of the Status Hearing the defendants have now learned that Mr. Fulton obtained an appraisal from Maynards Appraisals Ltd. on May 21, 2010 2010. He met with Dr. Marciniak on June 4th of that year to discuss the appraisal.
[82] Mr Fulton’s evidence was that Dr. Marciniak had serious concerns about the Maynards' appraisal as he had contacted Maynards to discuss the contents of the report without success. Consequently, he told Mr. Fulton that he wanted to obtain a second opinion.
[83] The Plaintiff’s evidence is that subsequently, Dr. Marciniak’s office contacted various companies that were familiar with the specialized equipment to provide an appraisal. It was difficult to find a company that was familiar with the equipment. It was also difficult to obtain a report because the equipment had not been preserved during the tenure of the Lee defendants’ time as counsel for the plaintiff.
[84] In his affidavit served September 26, 2014, Dr. Marciniak explained that he obtained the appraisal of Maynards Appraisals Ltd. in May 2010. He “had questions and grave concerns” about the appraisal. Accordingly, Dr. Marciniak “continued to search for an appraisal company to provide a second opinion without success. [He is] still searching for an appraisal company to provide a second opinion.”
[85] The Defendants assert that Dr. Marciniak’s affidavit contains bald statements about searching for a second opinion and no details through which his assertion could be tested. I find merit in their argument that in any event, it is patently unreasonable to assert that five years have been entirely consumed in looking for an equipment appraiser – particularly after Dr. Marciniak acknowledged that “only a selected few companies would be able to provide the appraisal”.
[86] This is not a case where the delay was occasioned by the defendants’ counsel. It is clear on the record that, unbeknownst to the Lee defendants, Dr. Marciniak took it upon himself to obtain a second appraisal report. He failed to do so.
[87] The irony is that the defendant, Paul Lee, while counsel to the plaintiff, sought to obtain an appraisal of the allegedly damaged goods almost 15 years ago. As a result of a dispute between the plaintiff and the Lee defendants’appraiser, there was no timely professional appraisal..
[88] Counsel for the plaintiff argues that following being advised in February of 2014 that the defendants would be seeking to have the action dismissed for delay at the Status Hearing, Dr. Marciniak's search for a second appraisal continued to September 2014.
[89] Then in September of 2014 the plaintiff, authorized Mr. Fulton to release the Maynards' appraisal to the Lee defendants. Which was sent on September 19, 2014 (the last day for filing materials that earlier was established by me).
[90] When he served the Maynards report, Mr. Fulton suggested to Ms. Wilkes that they agree upon a timetable for the completion of the various steps in the action if they were not able to resolve the matter.
[91] Counsel asserts that the plaintiff “has made continuous efforts to obtain an appraisal from which damages could be properly assessed since this issue was first discussed with Mr. Adair in February 2010”.
[92] At his cross-examination, Mr. Adair agreed that the act of obtaining an expert report is a step in moving a claim ahead:
Q. Fair enough. But at least it was pursuing the claim, from what you describe, that it might lead to a settlement discussion. Again, if it is written on the back of a napkin, you are saying to me it wouldn't have been much of a discussion, but it’s a step in the claim that might take it somewhere. It might not make it ...
A. Sure.
Q .... to trial. It would take it to settlement discussions.
A... I agree.
[93] Is that sufficient to permit the case to proceed?
[94] The Plaintiff’s factum asserts:
“43. Until the Lee defendants brought the within motion, the plaintiff believed that the Lee defendants were holding their file in abeyance pending the delivery of an appraisal and then settlement discussions. The plaintiff did not understand that the Lee defendants would be moving to have this action dismissed for delay until February 25, 2014….
As the equipment was destroyed before this lawsuit was started, the damages will have to be assessed on the documents created shortly after the equipment was damaged. In this respect, this action was always to be decided on the documentation….
This action should not be dismissed for delay.”
[95] Yet I find it incongruous that Dr. Marciniak lawyer’s file was in storage until the Status Notice arrived. Clearly the plaintiff’s action was “going nowhere” and that situation might wellw have continued to be the case but for the Lee defendants’ efforts to bring it to a contested status hearing.
[96] Against this background I return to the guidance in the caselaw
IX. The Governing Principles at a Contested Status Hearing
[97] As indicated at the outset, is well settled that the test to be met at a status hearing is a two-fold test and the burden rests with the plaintiff to meet both elements of it.
[98] In Khan v. Sunlife, 2011 ONCA 650, the Court of Appeal confirmed that the plaintiff must demonstrate to the Court’s satisfaction that:
i. He has an acceptable explanation for the litigation delay; and
ii. If the action is allowed to proceed the defendants will not suffer non-compensable prejudice.
Acceptable Explanation for the Litigation Delay
[99] The test is conjunctive; both elements must be met by the plaintiff. The type or category of evidence from the plaintiff that will satisfy the first element is evidence that unexpected or unusual contingencies have made it impossible for the plaintiff to comply with the timing provisions in the Rules of Civil Procedure. Otherwise, plaintiffs are expected to be able to set their actions down for trial within two years or to restored the action to the trial list within 180 days as required by Rule 48. [see 119658 Ontario v. 6274013 Canada Ltd., 2012 ONCA 544 at para. 19,]
[100] The plaintiff concludes its argument on the first branch:
“59. The plaintiff has always intended to pursue this action and has taken steps to move the action forward and to provide the Lee defendants with the information needed to resolve this matter.
- In the history and context of this case, the plaintiff submits that this is an acceptable explanation for the delay.”
[101] In dismissing a case for delay, the Court will balance two competing values: (i) the need to enforce the Rules in a way that ensures timely and efficient justice, in the interests of plaintiffs, defendants, and society in general” and (ii) the interest of society and the parties in the resolution of disputes on their merits and in the availability of flexibility to avoid potentially draconian results, by providing the opportunity for parties to offer a reasonable explanation for delay when it takes them beyond established timelines.” While the courts will not take a mechanical or formalistic approach to the application of timelines, “rule 48.14 was designed to have some teeth”. [see Kara v. Arnold, 2014 ONCA 871 at para. 10,]
[102] I recognize the guidance approved by our Court of Appeal in Riggitano v. The Standard Life Assurance Company, 2009 CanLII 23892 at para. 45; aff’d 2010 ONCA 70:
“If the common submission, as made here, to the effect that a dismissal would be unfair to the plaintiff is permitted to always trump the provision in the rules contemplating a reasonably timely procedure for the disposition of actions, then the rule would be effectively gutted.”
[103] In my view the plaintiff has not described any unexpected contingencies – he has known since discoveries in 2008 (or at least 2010) that an expert report on damages was necessary. There is no evidence of any unusual contingencies. Accordingly, in my view his action must be dismissed on this branch of the test.
[104] If I am in error on that component, it is also the plaintiff’s onus at a contested status hearing to satisfy the Court that his delay has not caused prejudice to the defendants.
[105] As a matter of law, there is real and substantial prejudice when professionals are sued for substantial damages, accused of professional misconduct, and then “left hung out to dry” for two and a half years by the plaintiff. [see Gravelle (c.o.b. CodePro Manufacturing) v. Denis Grigoras Law Office, 2013 ONCA 339]
[106] In this case, the plaintiff has left the defendants out to dry for over seven years.
[107] The rule is that “the party who commences the proceeding bears primary responsibility for its progress. For this reason, the initiating litigant generally suffers the consequences of a dilatory regard for the pace of the litigation.” [See Wellwood v. Ontario Provincial Police, 2010 ONCA 386, at paras. 31 and 48]
[108] It was incumbent on the plaintiff to conduct his action in a proactive manner. The “fact that the [plaintiff] was occupied with other litigation and [his] personal affairs is not a sufficient explanation for taking no active steps to move an action forward.” [see Gravelle (c.o.b. CodePro Manufacturing) v. Denis Grigoras Law Office, 2013 ONCA 339, at para. 4, and Faris v. Eftimovski, 2013 ONCA 360, at paras. 46 and 50,]
[109] The plaintiff has maintained this action suspended over the heads of a legal professional for over seven years. In 1196158 Ontario Inc., supra Justice Sharpe stated:
“Another harm that flows from delay, properly relied on by the status hearing judge, is that it leaves the litigant with the claim hanging over its head in a kind of perpetual limbo. Fairness requires allowing parties to plan their lives on the assumption that, barring exceptional or unusual circumstances, litigation time lines will be enforced. "Litigants are entitled to have their disputes resolved quickly so that they can get on with their lives" and "delay multiplies costs and breeds frustration and unfairness" [citations removed]
[110] At the status hearing stage, the Court must have regard to the specific features and circumstances of the action under review. In this case there are a number of unique features that call for attention.
[111] In my view the Lee defendants have not contributed to the plaintiff’s delay in pursuing the action.
[112] There were no further steps to be taken by the Lee defendants as of February 2010. This is not a case where the defendants sat idly and took no steps to advance the litigation when there were steps to be taken. The Lee defendants filed their affidavit of documents, conducted examinations for discovery, and participated in a mediation. The matter was listed for trial on June 24, 2009 but was struck from the trial list due to the plaintiff’s inaction.
[113] There is no indication that the Lee defendants delayed the litigation by resisting the plaintiff’s attempt to move the action along by, for example, filing numerous pre-trial motions.
[114] While engaging in the litigation, the Lee defendants repeatedly took the position that the plaintiff must provide evidence of his damages. For seven years, the plaintiff failed to provide any appraisal report or invoices to substantiate his alleged losses.
[115] The Lee defendants on at least two occasions sent letters to the plaintiff urging him to take steps. The Lee defendants cannot be expected to incur further costs to check in regularly on the plaintiff. In my view it is simply not the defendants’ obligation to do so.
[116] The plaintiff suggests that the Lee defendants ought to be faulted for not bringing a motion to dismiss the case for delay. This seems a clear attempt to reverse the onus on the plaintiff to prosecute his case. It cannot reasonably be contested that it is the plaintiff’s onus to carry forward his action. In 1196158 Ontario Inc. v. 6274013 Canada Limited et al., the Court of Appeal held:
“Failing any initiative on the part of the plaintiff, to require the defendants to spend time and money to prepare for a case that, from all appearances, was dead on the vine, would, in my view, be to impose an unnecessary and unreasonable burden.” [emphasis added]
[117] The Rules of Civil Procedure governing the dismissal of actions for delay were recently amended. Under the new Rules, an action will be dismissed without notice from the Court if it has not been set down for trial or otherwise disposed of within five years of issuing the claim or if it has not been restored to the trial list within two years of being struck off.
[118] If this case were being determined under the new Rule, the plaintiff would fail both of these tests. The plaintiff filed his claim in 2007 and yet more than seven years later, it has not been disposed of. In June 2010, the matter was struck from the trial list, but over four and a half years later, it had not been restored.
[119] The new Rules do not apply to this action pursuant to the transition provision at Rule 48.14(12). However, taking guidance from the new Rules, together with my overall analysis, it is clear that this action ought to be dismissed for failing to proceed with it in a timely way.
No Non-Compensable Prejudice
[120] In concluding their argument that the within action should be restored to the trial list, and that the Lee defendants' motion to dismiss the action should be dismissed, plaintiff’s counsel submits :
“61. There is no evidence of non-compensable prejudice to the defendants in the case at hand.
The Lee defendants will not suffer non-compensable prejudice if this action is allowed to proceed. This case is about damaged equipment. The damaged equipment was disposed of before the action was commenced. The relevant evidence is preserved in the photographs and Proofs of Loss prepared during the time of the Lee defendants' retainer.
This case will turn on the valuation of the damaged equipment which will come from the documents. The evidence is no better or worse since this action was started. A fair trial is possible. This possibility has not been altered by the passage of time.
E. Conclusion
- On a contested status hearing the court is asked to balance the interests of the parties. In 1196158 Ontario Inc. v. 6274013 Canada Ltd. the Ontario Court of Appeal stated:
[19] Time lines prescribed by the Rules of Civil Procedure or imposed by judicial orders should be complied with. Failure to enforce rules and orders undermines public confidence in the capacity of the justice system to process disputes fairly and efficiently. On the other hand, procedural rules are the servants of justice not its master. We must allow some latitude for unexpected and unusual contingencies that make it difficult or impossible for a party to comply. We should strive to avoid a purely formalistic and mechanical application of time lines that would penalize parties for technical non-compliance and frustrate the fundamental goal of resolving disputes on their merits.
In the case at hand, the action has been delayed because the plaintiff has been attempting to provide the defendant with a fair assessment of damages from which a resolution can be crafted.
All of the usual steps in litigation have been reached. The final step is to go to trial. The parties are in a position to schedule pre-trial and trial dates.
The Lee defendants have not been prejudiced. Both parties have always had to rely on documentary evidence to have the damaged equipment assessed. A fair trial is possible.”
[121] In assessing these arguments I reflected on these portions of the Court of Appeal’s decision in Carioca’s (infra):
Prejudice
49 The issue of prejudice is a factual question. The plaintiff bears the onus of demonstrating that the defendant would suffer no non-compensable prejudice if the action were allowed to proceed. The mere passage of time cannot be an insurmountable hurdle in determining prejudice, otherwise timelines would become inflexible and explanations futile.
50 A defendant is not required to offer evidence of actual prejudice. However, the court is entitled to consider the conduct of the defendant in light of its assertions of prejudice. As Weiler J.A. noted in Fuller, it is an error for a judge considering dismissal for delay to fail to consider the respondent's conduct in relation to the question of prejudice: at para. 39.
[122] The delay here is not limited to the past five years. In fact, this action was based on events that occurred 15 years ago.
[123] If Dr. Marciniak had a problem getting an appraiser, it is a problem that he created. The present problem exists because the property no longer does and a timely second appraisal was not obtained.
[124] On July 6, 2000, when the Lee defendants were still acting as counsel to the plaintiff, they sent an appraiser to the plaintiff’s office. No appraisal was conducted because there was a dispute between the appraiser and Dr. Marciniak. In a July 12, 2000 letter to the plaintiff, Stephanie Tustin, a member of the Lee firm, wrote:
“Given the failed meeting with the appraiser, Mr. Wilson, of July 6th, and the July 11th deadline to file Proofs of Loss, we confirm your instructions to file the Proofs of Loss for the High Park, Bathurst, and Weston Road locations with your estimate of the replacement cost of equipment/furniture damaged at each location.” [my emphasis]
[125] In a transfer memo, Tustin stated:
“We sent an appraiser to view the damaged furniture and equipment, however, there was a dispute between our appraiser and Dr. Marciniak and the appraiser ended up leaving Dr. Marciniak’s office. As such, no appraisal was conducted and as a result, the proofs of loss are extremely vague.”
[126] On Dr. Marciniak’s instructions and using his own estimates of the loss, the Lee defendants submitted the Proofs of Loss to Lombard. Lombard denied coverage concluding that the plaintiff had failed to establish that he suffered any losses. The plaintiff is faced with the same issue in this litigation. Until September 19, 2014, the plaintiff had failed to provide any independent evidence of damages. The plaintiff has now provided a highly qualified report about which even he has “questions and grave concerns”.
[127] Finally, relevant witnesses (who may have known about the condition of the Property before and after the transfer of it) have never been examined. The events at issue occurred 13-15 years ago and memories fade.
No Acceptable Explanation for the Delay
[128] I have added my emphasis to a number of extracts from Justice van Rensburg’s recent observations in Carioca’s Import & Export Inc. v. Canadian Pacific Railway Limited, 2015 ONCA 592,:
“Delay
51 The motion judge's analysis focussed mechanically on whether blame could be attributed to the appellant at each stage of the litigation. Once he found delay, he failed to go on to weigh the evidence and evaluate whether the explanation provided was reasonable. Had he done so, he would have taken into account important factors such as the circumstances in which the action came to be struck from the trial list and the fact that the case was now ready for trial.
52 Applying too exacting a standard for restoring an action which has been struck from the trial list may well hinder the objective of an efficient justice system, as parties and counsel would argue over keeping matters on the trial list for fear that, once struck, they might never be restored. Fighting highly contested motions over cases being struck and restored to the trial list is not an effective use of scarce judicial and legal resources. Ontario courts are actively discouraging a "motions culture" among counsel, and the Supreme Court of Canada has called for a "shift in culture", citing the need for a process that is proportionate, timely and affordable: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 28.
53 While this court has stated frequently that the plaintiff bears the primary responsibility for moving a case forward, it has also acknowledged that the conduct of a defendant is a factor, especially where a plaintiff encounters some resistance when trying to move the action along: 1196158 Ontario Inc., at para. 29. The suggestion that it is normal and acceptable for a defendant, if not to actively delay, to simply wait for the plaintiff to make the next move, may be based on a conventional view of litigation strategy. The objectives of timely and efficient access to justice, and effective use of court resources require all parties to play their part in moving actions forward, and for counsel to act in a way that facilitates rather than frustrates access to justice: Hryniak, at para. 32. For these reasons, although the burden of proof on the motion is on the plaintiff, the conduct of all parties in relation to the litigation is relevant in determining whether to restore an action to the trial list.”
[129] Here I find the defendants made reasonable efforts to move the case forward without success. You can “lead a horse to water…” but at some point the metaphor shifts to “beating a dead horse”
[130] I have endeavoured to weigh the role of each side in delaying this matter with a view to following the Court’s guidance in Carioca’s:
54 The motion judge's approach here focussed almost exclusively on the appellant's conduct, and did not consider the overall dynamics of the litigation. This resulted in an imbalanced view of at least four aspects of the appellant's actions. First, at the time the motion below was heard, the case was ready to proceed to trial. Any objection raised by the respondent had been met, and the parties were capable of complying with the requirements of rule 53.03 for the exchange of expert reports. Keeping an action that is ready for trial off the list is punitive rather than efficient. Second, the action sought to be restored had been summarily struck from the trial list by a judge's order at an appearance where the parties were jointly seeking new dates for a pre-trial and trial, and not at the respondent's request. Third, the appellant had never lost sight of the need to restore the action to the trial list, had brought its motion reasonably promptly after the action had been struck, and, as the motion judge observed "had no motive to delay the action". Finally, the respondent had not indicated any serious concerns about the pace of the litigation until it opposed the motion to restore the action to the trial list.
[131] None of these factors are present to assist this plaintiff. If anything I find the defendants were more active in trying to move the case to a conclusion.
[132] In Carioca’s the Court reflects on the earlier decision in Nissar(supra):
55 The first part of the Nissar test involves a consideration of any relevant delay, but asks whether an "acceptable explanation" for any such delay has been provided. The context of the action and any other relevant factors that are specific to the case must be considered. These will include the overall progress of the action before it was listed for trial, the circumstances of how the action came to be struck from the trial list, and the conduct of all parties. Procedural rules cannot be mechanically applied but have to be interpreted in a contextual manner that pays heed to all relevant circumstances and consequences.
[133] Based upon my understanding of the history of this case I, somewhat regretfully, find the Plaintiff’s explanation for the delay in this case neither “acceptable” nor “reasonable” nor “satisfactory”.
[134] Turning to the second half of the test Justice van Rensburg observes:
“Prejudice
57 The second part of the test involves a consideration of prejudice to the respondent if the action were allowed to proceed. The prejudice at issue is to the respondent's ability to defend the action as a result of the appellant's delay, not as a result of the sheer passage of time: MDM Plastics Ltd. v. Vincor International Inc., 2015 ONCA 28, at paras. 25 and 33. This portion of the analysis does require some apportionment of responsibility for the delay.
59 The motion judge was required to consider the evidence in deciding the prejudice issue: Fuller, at paras. 38-39. In this case, the action was ready for trial, oral discoveries had been completed relatively soon after the events in question, transcripts were available (unlike in Nissar), and the documents authored by the missing witness were available. The record of the litigation did not indicate any serious concern on the respondent's part about the delay. Its consent to the previous motion to restore the action to the trial list, and its passivity in "to be spoken to" court when the court struck the action of its own motion, both suggest that no non-compensable prejudice would result from the action being restored to the trial list: MDM Plastics, at paras. 34-36 and 39; Fuller, at para. 42.
[135] Here prior to disposing of the equipment, the plaintiff never had the goods appraised. The Lee defendants attempted to have a valuator do so in advance of filing the Proofs of Loss, but he was unable to complete his appraisal as a result of a dispute with the plaintiff.
[136] The plaintiff disposed of the equipment so a proper valuation is nearly impossible. As time passes, it is less likely that the defendants can locate an individual familiar with the aging equipment to prepare a responding report. There is no evidence of what the plaintiff paid to purchase the equipment, what he paid to purchase replacement equipment, or what was the condition of the equipment just prior to transfer.
[137] The plaintiff cannot meet the second element of the status hearing test: it is his onus to establish that the defendant will not be prejudiced if the action continues, and he has failed to do so.
[138] In my view, the nature of the prejudice, the somewhat proactive conduct of the defendants and particularly the unavailability of a meaningful and factually based independent appraisal are sufficient to support a finding of sufficient prejudice to justify dismissing the plaintiff’s action, even if I am in error on the first prong of this test.
X. Conclusion
[139] Under Rule 48(13) at the status hearing, the plaintiff shall show cause why the action should not be dismissed for delay. If the presiding judge or case management master is not satisfied that the action should proceed, the judge or case management master may dismiss the action for delay.
[140] It is possible that the evidence may establish the action on the insurance policy was not started on a timely basis. But for a case to succeed requires all of a duty, a breech and damages to be proven. Here I am of the view that the efforts by the plaintiff to establish the quantum of his damages on a timely basis were inadequate.
[141] Based on the foregoing analysis I am not satisfied that this action should proceed and I am therefore dismissing the action at this time.
[142] As a consequence I have determined that (subject to any offers made to settle the motion) the defendant should have its costs of this motion on a partial indemnity basis. If the parties cannot agree on quantum within 30 days, I will provide directions, at the request of either counsel, for the filing of in writing cost submissions.
R.116/DS __________________
Master D.E. Short