ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 10-47945

DATE: 2015/10/15

BETWEEN:

PAWAN DHAWAN
Plaintiff
(Moving Party)

– and –

AMADO WEHBE
Defendant
(Responding Party)

Susanne M. Sviergula, agent for the lawyers for the Plaintiff/Moving party

Mitchell Kitagawa, for the Defendant/Responding Party

HEARD: September 24, 2015 (at Ottawa)

REASONS FOR decision

Kane J.

[1] The plaintiff seeks an order to set aside the administrative dismissal order dated November 26, 2014, to permit reinstatement of this proceeding and to extend the time to set this action down for trial.

[2] Counsel for the plaintiff on this motion is appearing on behalf of the law firm which acts for the plaintiff in this proceeding (“plaintiff’s counsel”).

TIMELINE

2006

[3] This proceeding involves injuries to the plaintiff regarding a motor vehicle accident which occurred in November 2006.

2008

[4] This proceeding was commenced in Newmarket, Ontario on November 19, 2008.

[5] The plaintiff suffered injuries in a second motor vehicle accident which occurred in July 2008. The plaintiff commenced a second proceeding for the injuries suffered in that accident.

[6] The plaintiff applied for statutory accident benefits.

2010

[7] This proceeding was transferred from Newmarket to Ottawa in March 2010. That resulted in a change of counsel.

[8] The plaintiff was examined for discovery in this action in October 2010.

2011

[9] The defendant requested case management in August 2011. The defence in that request states that the second proceeding was being transferred to Ottawa from Newmarket and a timetable was required to allow the second proceeding to catch up and permit a trial of the two actions together.

[10] An examination to determine the plaintiff’s level of physical impairment was conducted in June 2011, in support of an Application for Catastrophic Impairment.

[11] Plaintiff’s present counsel was engaged in both proceedings in October 2011.

[12] A case conference was held on October 31, 2011, at which it was ordered that the two proceedings were to have a common timetable with all discoveries to be completed by February 2012 and both actions to be set down for trial by May 30, 2012.

2012

[13] The plaintiff failed to set this proceeding down for trial by May 30, 2012.

[14] The plaintiff in August 2012 ordered a psychological assessment in support of his catastrophic impairment application. The plaintiff did not receive the physiological impairment assessment report until May 2013.

[15] A 90-day notice of pending dismissal was issued by the court on August 24, 2012.

[16] In September 2012, the plaintiff requested an extension until December 31, 2012, to set this proceeding down for trial. The defendant consented to that request. It appears the plaintiff did not have the order issued.

[17] This proceeding was dismissed for delay on December 3, 2012 pursuant to Rule 48.14 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as a result of the inadvertence of plaintiff’s counsel in not having an order issued extending the time to December 30, 2012.

2013

[18] The court on January 24, 2013, at the request of the plaintiff and with the consent of the defendant, granted an order setting aside the administrative dismissal and extending the time to set this proceeding down for trial to May 30, 2013.

[19] The mediation scheduled for March 13, 2013, was cancelled. Plaintiff’s counsel asked for new mediation dates from the defendant 45 days later.

[20] The plaintiff received his psychological assessment report in support of his catastrophic impairment application in May 2013. An Application for Determination of Catastrophic Impairment for some unstated reason was not received from the attending physician until December 2013 and was not served on the defendant until February 13, 2014. It is unexplained why the preparation and completion of this application took 17 months but is relied upon by the plaintiff as to the inherent complexity and length of this proceeding.

[21] The court on May 31, 2013, issued a 90-day notice of pending dismissal.

[22] The plaintiff’s economic loss report was served in July 2013. Counsel communicated in July 2013 regarding discovery undertakings, answers thereto and sought consent to a new mediation date.

[23] December 23, 2013 was agreed upon as a mediation date but was not available for the mediator. Defence counsel thereafter was unavailable until July 2014. July 29, 2014 was agreed upon as a mediation date by counsel but was not suitable for the defendant in the second proceeding.

2014

[24] A new mediation date was selected in January 2014, namely September 17, 2014.

[25] The plaintiff in February 2014, sought consent to extend the time to set this proceeding down for trial to November 25, 2014, given the September mediation date. The defendant consented. A consent order to that effect was issued.

[26] The mediation proceeded in September 2014 and was unsuccessful.

[27] Plaintiff’s counsel instructed his law clerk to set this proceeding down for trial on September 30 and October 6, 2014. Plaintiff’s counsel omitted to ensure those instructions were carried out.

[28] This proceeding was not set down for trial by November 25, 2014.

[29] An administrative order dismissing this proceeding was issued on November 26, 2014.

[30] Through inadvertence, plaintiff’s counsel was unaware of this dismissal order before February 2015.

2015

[31] Plaintiff’s counsel on February 11, 2015, requested the defendant consent to set aside the November 26, 2014 administrative dismissal of this proceeding. The defendant refused to consent.

[32] Plaintiff’s counsel understood that the defendant, while not consenting, would not oppose the plaintiff’s motion to set aside the administrative dismissal.

[33] Plaintiff’s counsel expressed surprise when the defence filed opposing material on the plaintiff’s motion to set aside the November order dismissing this action. The plaintiff therefore on April 17, 2015, obtained an adjournment of his motion in order to file supplementary motion materials and re-schedule the motion for argument today.

[34] In summary, since the commencement of this proceeding in November 2008:

(a) Four time limits to set this proceeding down for trial have been missed by plaintiff’s counsel;

(b) The defendant has consented three times to extend the time to set this proceeding down for trial; and

(c) There have been two administrative orders dismissing this proceeding.

LAW

[35] The parties agree as to the relevant law on a motion to set aside an administrative order dismissing a proceeding.

[36] The court must consider and weigh all relevant factors to determine what is just in the circumstances of each particular case.

[37] Factors to be considered include:

(a) Explanation of the litigation delay;

(b) Inadvertence in missing the deadline;

(c) Prompt motion to set aside dismissal order; and

(d) Prejudice to the defendant since commencement of the proceeding or since dismissal.

Of these, prejudice to the defendant is paramount: Marché D’Alimentation Denis Thériault Ltée v. Giant Tiger Stores Ltd., 2007 ONCA 695, 87 O.R. (3d) 660, para. 12, and Scaini v. Prochnicki, 2007 ONCA 63, 85 O.R. (3d) 179, paras. 23-24.

[38] The plaintiff is not required to satisfy each of the above four factors. A contextual approach is required: Scaini at paras. 23-24.

[39] In weighing the relevant factors, the primary focus should be on the rights of the litigants and not the conduct of their counsel: Finlay v. Van Paassen, 2010 ONCA 204, 101 O.R. (3d) 390, paras. 32-33 and Giant Tiger, para. 28.

[40] The plaintiff has primary responsibility to ensure the progress of the proceeding: Wellwood v. Ontario (Provincial Police), 2010 ONCA 386, 102 O.R. (3d) 555, para. 60.

[41] The court may set aside an order by a registrar on such terms as are just pursuant to Rule 37.14 (1) and (2) of the Rules of Civil Procedure.

[42] The plaintiff must adequately explain the delay in the proceeding from its commencement to its dismissal, not just since the dismissal order was argued: Giant Tiger, para. 12(1).

[43] The court should not normally speculate as to the rights of action the plaintiff may have against their solicitor, absent deliberate conduct of plaintiff’s counsel: Finlay, paras. 32-33 and Giant Tiger, para. 28.

[44] Prejudice to the defendant may be presumed, particularly in the case of a lengthy time period after the dismissal order for a limitation period has expired: Wellwood, para. 60.

[45] The plaintiff has the onus to demonstrate that the defendant has not suffered significant prejudice in presentation of the defence as a result of the plaintiff’s delay, or as a result of steps taken following the dismissal of the action in which case the plaintiff must have evidence to rebut the presumption of prejudice.

[46] Prejudice to the defendant is not as argued limited to prejudice after the administrative order dismissing the proceeding: Giant Tiger, paras. 12(1) and (4).

[47] Prejudice to the defendant is that resulting in reviving the action after it was dismissed for the plaintiff’s delay, or as a result of steps taken following dismissal of the proceeding: Giant Tiger, para. 12(4).

[48] If the plaintiff rebuts the presumption of prejudice, the defendant will then have the onus to establish actual prejudice: Wellwood, para. 60.

Analysis

Litigation Delay

[49] There is an increased level of complexity to this type of proceeding. It can as in this case include an application for statutory accident benefits, mediation, catastrophic injury determination and expert reports as to income loss calculation and support service requirements. These must be processed in parallel and in addition to the standard steps in civil litigation.

[50] The complexity in this case also increased due to the injuries from the second accident injury and managing a second proceeding in parallel.

[51] The length of time before trial frequently increases with the level of complexity, as in this case.

[52] Notwithstanding the complexity in this case, this proceeding could have been advanced more expeditiously since 2008.

Inadvertence

[53] Plaintiff’s counsel admits inadvertence and responsibility for this and the previous dismissal order.

[54] The parallel steps to this proceeding undertaken by the plaintiff demonstrate his continuing intention to pursue this claim.

Motion Brought Promptly

[55] Plaintiff’s counsel proceeded promptly in bringing this motion, but only two months after it came to counsel’s attention for which inadvertence is again admitted.

Prejudice

[56] As to this proceeding being outstanding since 2008, the defendant acting reasonably has consented to time extensions on several occasions. Those consents render those time periods if considered separately, insufficient to maintain an administrative dismissal preventing adjudication of the merits.

[57] The level of complexity herein and the defendant’s consents to extend the time rebut the presumption of prejudice.

[58] As to actual prejudice, the defendant failed to answer inquiries of his counsel in 2012, long before the administrative dismissal in 2014. Counsel for the defence was frank that their current difficulty to locate and communicate with the defendant is not conclusive as to their ability to produce the defendant for trial.

[59] There is no evidence of lost documentation, experts, inability to present evidence at trial or actual prejudice.

[60] On balance as to the above four factors, this motion is granted. The administrative dismissal order dated November 26, 2014 is set aside.

[61] The plaintiff shall set this action down for trial within 30 days from the date of this decision, failing which this action will be dismissed with costs to the defendant.

Costs

[62] Notwithstanding the plaintiff’s success on this motion, this is an appropriate case to deny costs to the successful party and to award costs in this case to the defendant.

[63] The responsibility for the plaintiff’s delay and repeatedly missing set down dates in addition, is that of plaintiff’s counsel, not the plaintiff or the defendant.

[64] Inaction, inadvertence and non-compliance with orders as to dates by which this action was to be set down for trial by plaintiff’s counsel results in this cost award being payable by that counsel, not the plaintiff.

[65] The combined total of 60 hours by defence counsel or some 7.5 eight hour days, is high for a motion like this.

[66] Costs of this motion are set on a partial indemnity scale in the amount of $6,500 and are payable by McNally Gervan LLP to the defendant within 30 days of the date of this decision.

Kane J.

Released: October 15, 2015

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

PAWAN DHAWAN
Plaintiff
(Moving Party)

– and –

AMADO WEHBE
Defendant
(Responding Party)

REASONS FOR DECISION

Kane J.

Released: October 15, 2015