CITATION: Jodha v. Dineen, 2015 ONSC 6848

COURT FILE NO.: CV-12-458146

DATE HEARD: November 4, 2015

ENDORSEMENT RELEASED: November 20, 2015

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: RONNIE JODHA v. PAUL ANTHONY DINEEN

BEFORE: Master R. Dash

COUNSEL: Glenn Bogue, for the plaintiff

Daniel Bernstein, for the defendant

Adam Pantel, for the proposed defendant

REASONS FOR DECISION

[1] The plaintiff moves to set aside the order of the registrar dismissing the action for delay and to amend the statement of claim by adding a defendant. The action against the current defendant, a lawyer, is for negligence in real estate transfers among family members between October and December 2011. The action was dismissed for delay on November 14, 2014. The plaintiff now seeks to add as a defendant his former lawyer in this action who has been off the record since May 15, 2013.

BACKGROUND

[2] The plaintiff’s parents separated and owned a property as tenants in common. An agreement was made between the plaintiff and his parents whereby (a) the plaintiff’s father would transfer his half interest in the property to the plaintiff in consideration of the plaintiff guaranteeing his father’s spousal support payments of $500 per month to his mother and (b) the plaintiff would purchase his mother’s interest for $200,000 and assume an outstanding mortgage of $14,500 as well as monies lent by the plaintiff to his mother of $55,000. Part of the $200,000 would be used to pay execution creditors registered against his mother’s interest. Apparently the family was concerned that the mother had other creditors who may soon further encumber her interest in the property.

[3] In October 2011 the plaintiff instructed his lawyer, the defendant Dineen, to effect the transfers, but registration was delayed during which time the plaintiff’s aunt registered a mortgage against his mother’s interest for $440,000. It appears the defendant registered the transfers without searching title and failed to notice the aunt’s mortgage. Title merged in the name of the plaintiff and the aunt’s mortgage now bound the entire property. The defendant tried to reverse this result by transferring title back to the parents as tenants in common, but that did not reverse the merger of the mortgage onto the whole property.

[4] In March 2012 the plaintiff retained lawyer Tracey Warne (“Warne”) to seek damages against Dineen and a statement of claim was issued on July 6, 2012. The plaintiff paid Warne a retainer of $5,000. Dineen retained counsel through the Lawyers’ Professional Indemnity Co. (“Law Pro”) who filed a notice of intent to defend on August 1, 2012, thereby engaging the commencement of the two year period to set the action down under what was then rule 48.14(1).[^1] On January 10, 2013 the plaintiff emailed Warne to express concerns that he had not heard from Warne and stated: “It seems that you are working together with the insurance company instead of against.” Warne responded the next day indicating he was on vacation, that he was getting no co-operation from the plaintiff’s mother or aunt but he was “confident you will succeed” as against Dineen’s insurer.

[5] On February 28, 2013 Warne reported on an offer made by LawPro, whereby LawPro would commence an action in the plaintiff’s name against the plaintiff’s father, mother and aunt at the sole cost of LawPro with its aim to rescind the original transaction and restore the mother’s half interest to the mother encumbered with the aunt’s mortgage and the other half, unencumbered, to the plaintiff. Warne recommended the settlement describing it “as if the conveyance never took place.”

[6] On March 6, 2013 the plaintiff rejected the offer because, with the aunt’s mortgage still registered against the mother’s interest, the aunt could always force a sale of the building. He instructed Warne to proceed with the action against Dineen and stated, “if you don’t want to, I will do it myself.” The next day Warne reported that nothing could be done about the aunt’s mortgage since his mother agreed to register it on her half of title. The plaintiff told Warne in an email on March 11: “It seems you are following the insurer’s instructions and demands and not mine. That’s why I question who you are representing.” Warne responded the same day, appropriately in my view: “In view of your position, I must decline to act for you further.” He asked the plaintiff to sign a notice of intention to act in person that he had sent him.

[7] During the currency of his retainer, Warne had sent three interim accounts between May 1, 2012 and November 5, 2012 exhausting the $5,000 retainer and leaving an outstanding balance of $1252. On March 12, 2013 he sent a final account for $2587 leaving a balance owing by the plaintiff of $3843 (with interest).

[8] On March 14, 2013 the plaintiff sent an email to Warne stating, “As far as I am concerned you ripped me off and I owe you nothing…you have stolen over $5,000.00 from me already. I want my money back as again your assistant did a little paperwork at the beginning and you and the insurer have been plotting your own ideas behind my back. I will be reporting all parties involved unless I get my money back.” It is clear that as of this date the plaintiff formed the view that he had a right to the return of his $5,000 retainer and made demand for it.

[9] On April 12, 2013, the Law Society received complaint against Warne signed by the plaintiff on March 12, 2013. In the complaint he states that Warne at first told him Dineen was negligent and must sue, but after speaking to the insurance company Warne said he couldn’t sue but could get the building back the way it was. He said he found this unacceptable because he couldn’t have his aunt force a sale under the mortgage. Under the heading on the form entitled “What do you hope will happen as a result of your complaint?”, the plaintiff stated: “Want my money back I paid him. He did nothing in any way to help me.” At the Law Society’s request the plaintiff subsequently provided a series of correspondence, emails and accounts as well as Master Peterson’s order of May 15, 2013 removing Warne as lawyer of record.

[10] On April 12, 2013 Warne served the motion to be removed as lawyer of record for the plaintiff returnable on May 15, 2013. In his affidavit sworn in support of the removal motion Warne referenced both the plaintiff’s refusal to follow his settlement advice and the plaintiff’s aggressive attitude including the accusation that he had been plotting with the insurer against the plaintiff’s back as examples of the irrevocable breakdown in solicitor-client relationship. Since the two year period before a status notice would issue ran from the notice of intent to defend filed on August 1, 2012, it would have been at least another 15 months from the date of the motion until a status notice would issue (and then another 90 days after that before the action would be dismissed). This was more than enough time to retain new counsel or take steps to move the action forward before there would be any risk of dismissal.

[11] On May 15, 2013, the return date of the motion, the motion did not appear on any court list, apparently due to administrative error by court staff. Warne’s articling student attended on the motion and was able to have the matter added to the court’s list. Master Peterson was concerned that the plaintiff may not have had proper notice that the matter was being dealt with that day and required the student to contact the plaintiff. Unknown to the student or to Master Peterson, the plaintiff had attended the courthouse intending to tell the master that he wanted his money back from Warne, but when he could not find the matter on any court list he returned home. The student was able to speak to him on the phone. According to the student, he asked the plaintiff if he would consent to the removal order and after some discussion the plaintiff told him “do what you gotta do to get it done”. He relayed this to Master Peterson. The Master handwrote in the preamble to the formal order: “the client having advised counsel that he would not be appearing to oppose.”

[12] In his proposed amended statement of claim the plaintiff pleads that Warne fraudulently advised the court that he had obtained the consent of the plaintiff to have Warne removed as counsel of record, whereas the plaintiff strongly objected to the removal unless a full refund of the retainer was paid. Under cross-examination however, the plaintiff admitted that once the student told him the purpose of the motion was to remove Warne’s firm as lawyers of record, he told the student: “well if that’s all it is, then fine, go ahead.” The plaintiff nonetheless took umbrage at being told it wasn’t necessary that he come to court. The order was served on the plaintiff by mail on May 16, 2015.

[13] On May 31, 2013, in response to a request by the plaintiff, Warne’s assistant told the plaintiff that he could have his file once his outstanding account was paid. The plaintiff responded that Warne had provided no services and again indicated that Warne owed him the return of his retainer.

[14] On July 10, 2013 the Law Society informed the plaintiff that there was insufficient evidence of professional misconduct with respect to his complaint against Warne and as a result they closed their file.

[15] On February 26, 2014 the plaintiff delivered his notice of intention to act in person and on April 22, 2014 the defendant served his statement of defence. Nothing further was done to advance the litigation; however on April 4, 2014 the plaintiff’s mother transferred her interest in the property to the plaintiff and on May 15, 2014 the aunt’s mortgage was deleted from title. The plaintiff indicated that he retained a lawyer to prepare and register those documents.

[16] On August 5, 2014 a status notice was issued by the court and sent to the plaintiff. At first the plaintiff denied receiving the status notice, but on cross-examination admitted he may have received it – he just didn’t know. He was not particularly interested in the litigation at that time and was back and forth to Guyana (to be discussed further in these reasons).

[17] When there was no response to the status notice (such as setting the action down or requesting a status hearing) the action was dismissed by the registrar on November 14, 2014 under what was then rule 48.14(4). Again the plaintiff may or may not have received the dismissal order sent by the court – he doesn’t recall.

[18] Prior to the dismissal there had been no affidavits of documents exchanged, no examinations for discovery conducted and no mediation arranged.

[19] The plaintiff’s current lawyer, Mr. Bogue, was retained in early May 2015. Mr. Bogue apparently discovered the dismissal order in the court file and on May 7, 2015 sent an email to Mr. Wardle, the lawyer for the defendant Dineen, attaching a draft notice of motion scheduled for May 26 to “reopen the action based on the medical condition of the plaintiff” and add as a defendant Ricketts Harris (“RH”), the firm where Mr. Warne was a partner. The motion was rescheduled for July 22 at the request of the defendant. Later on May 7 Mr. Bogue sent an email to Mr. Warne indicating he was retained to reopen the case and to seek a refund of the $6,000 (sic) retainer and indicated he would send a notice of motion by separate email. It is common ground that the referenced notice of motion was never sent to Mr. Warne. The court subsequently vacated the July 22 date because the notice of motion had not been filed on time.

[20] On June 26, 2015 the plaintiff served a notice of motion on both Dineen’s lawyers and on Warne to set aside the registrar’s dismissal and to add RH as a defendant. It is admitted that this is the first notice of motion served on (or even sent to) Warne. The plaintiff served his motion record on July 8, 2015.

[21] Although the notice of motion seeks only to add RH as a defendant, the proposed amendment attached to the motion record states that the plaintiff “makes a claim against his former counsel, Tracey Warne”, with no mention of RH. There was no draft amended statement of claim in the motion record. A draft amended statement of claim was later provided but it was deficient because there was no additional defendant added to the style of cause on the first page and the proposed changes were not underlined as required by rule 26.03(2).[^2]

[22] The draft amendments to the statement of claim begin with a heading: “The claim by Ronnie Jodha against Tracey C. Warne and Ricketts, Harris LLP”. Four paragraphs of facts to support the claim then follow as paragraphs 30 to 33 of the draft. The amendments end with paragraph 34 which states under the heading “Damages”: “Plaintiff now also makes a claim against his former counsel, Tracey Warne…” It is most unclear whom the plaintiff wishes to add as a defendant. The notice of motion seeking to add only RH was never amended.

[23] The motion came before me on September 28, 2015. Only 45 minutes had been booked for the motion. Although the plaintiff purported to confirm the motion for two hours, he never sought to book additional time and only 45 minutes were allocated on my list. Section 36 of the Consolidated Practice Direction for Toronto Region states in dealing with time estimates for the confirmation form: “Estimated time must not exceed time booked.” It was my view that even 2 hours was insufficient. As the motion time was underbooked, it was adjourned to a special full day motion before me on November 4.

PRELIMINARY ISSUE

[24] On September 28 I had provided counsel with a copy of my decision in Tracey v. Leon’s Furniture Ltd.[^3] Although that decision sets out the now well-known test for setting aside a registrar’s dismissal, I provided the case to highlight the necessity of providing medical evidence to support a claim that delay was caused by a plaintiff’s medical condition. Because the motion would have been heard on September 28 but for the time being under-booked, and because cross-examinations had been completed, I agreed with the submissions of defendants’ lawyers and ordered that no further materials could be filed (other than the draft amended statement of claim with proper underlining to comply with rule 26.03(2)).

[25] Contrary to my order, the plaintiff served a supplementary affidavit on October 13, 2015 setting out matters said to be confirmed at his cross-examination including the plaintiff’s description of his medical condition and his level of education. He also purported to add evidence to clarify how he found the registrar’s dismissal order and an email to Dineen’s lawyer attaching the notice of motion on May 7. In his affidavit the plaintiff stated that he made the affidavit “in response to learning” of my decision in Tracey v. Leon’s Furniture “and in support of” his motion. Although there had been some medical records in the original motion record, there was no further medical evidence in the supplementary affidavit.

[26] The defendants objected to my receiving the supplementary affidavit for use on this motion. Mr. Bogue stated that his main concern was to show that he acted promptly after learning of the dismissal order. Once I confirmed to Mr. Bogue that I was prepared to find that the plaintiff moved promptly after learning of the dismissal order whether he learned of it when the order was sent by the court on November 14, 2014 or when Mr. Bogue searched the court file on May 7, 2015, Mr. Bogue agreed to withdraw his supplementary affidavit. As a result its contents are not considered for purposes of this decision.

THE MOTION TO SET ASIDE THE REGISTRAR’S DISMISSAL ORDER

The Test

[27] The now well-known test for these motions has been addressed by a number of recent decisions of the court of appeal and has most recently been summarized in H.B. Fuller Company v. Rogers[^4]. The court must consider and weigh the four Reid factors[^5] and any other relevant considerations on a contextual basis in order to determine the result that is most just in the circumstances. The plaintiff need not rigidly satisfy each of the four Reid factors. While the plaintiff bears primary responsibility for the progress of an action, the defendant’s conduct in the litigation is also a relevant consideration.

[28] These motions involve the balancing of two important principles as set out in rule 1.04(1). One principle involves the interests of both parties and of the public in the timely resolution of disputes and in compliance with the timelines set out in the Rules. Finality of litigation is also a consideration in consideration of this principle. The other principle is the interest of the parties and of the public in determining disputes on their merits rather than terminating actions on procedural grounds. This latter principle usually favours an indulgence to a plaintiff particularly when delay has been caused by inadvertence or even negligence of counsel and not from the deliberate actions of the plaintiff or his lawyers. The court’s focus must be on the rights of the parties and not the conduct of their lawyer.[^6]

[29] The four Reid factors have been described as follows:

(1) 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... If either the solicitor or the client made a deliberate decision not to advance the litigation toward trial then the motion to set aside the dismissal will fail.

(2) 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.

(3) The Motion is Brought Promptly: The plaintiff must demonstrate that she moved forthwith to set aside the dismissal order as soon as the order came to her attention.

(4) 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.[^7]

Explanation of Delay

[30] The action was commenced on July 6, 2012, a notice of intent to defend was filed on August 1, 2012, the plaintiff refused to accept the defendant’s settlement offer on March 6, 2013 and Mr. Warne was removed from the record on May 15, 2013. There is no evidence that a statement of defence was demanded. The plaintiff delivered his notice of intention to act in person on February 26, 2014 and a statement of defence was served on April 22, 2014. A status notice was issued on August 5, 2014 and the action was dismissed for delay by the registrar on November 14, 2014. During this entire period, and indeed up until Mr. Bogue was retained in early May 2015, nothing was done to advance this litigation beyond pleadings. There have been no affidavits of documents exchanged, no productions delivered, no examinations for discovery and no mediation arranged.

[31] In his affidavit sworn May 21, 2015, the plaintiff states that “the stress of the title search failure, and the failure of Mr. Warne to refund my money led to a Post Traumatic Stress diagnosis, manifesting as extreme psoriasis, which left me with an inability to walk at times.” He states that he was advised by his doctor “to reside in a permanently warm climate in order to facilitate my recovery from extreme psoriasis.” He states that he has “now recovered sufficiently to properly pursue the case against Mr. Dineen and Mr. Warne”.

[32] The plaintiff attaches as an Exhibit to his affidavit the medical records of his “personal doctor” in support of his averments. I have reviewed Dr. Ho’s clinical notes from August 1, 2013 to April 29, 2014, a consultation from a Dr. Ali to Dr. Ho dated October 31, 2013 and several consultations from Dr. Sokoluk ( a rheumatologist) to Dr. Ho between February 10 and July 15, 2014. The clinical notes and records clearly confirm that the plaintiff was suffering from psoriasis and psoriatic arthritis primarily manifesting as pain, swelling and morning stiffness in the ankles and he was treated with topical medications and an injection. Dr. Sokoluk reported that the plaintiff had been suffering from diffuse psoriasis dating back approximately one year before his February 2014 examination. Dr. Ali reported on October 31, 2013 that his ankle pain had dramatically improved following an injection. Dr. Sokoluk reported on March 3, 2014 that the plaintiff is “feeling better now with less arthralgia” and on July 15, 2014 that “he has little joint pain…his psoriasis is stable.”

[33] Nowhere in the medical records do any of his doctors confirm that the plaintiff was advised to reside in a warm climate nor do they confirm that the plaintiff was left with an inability to walk at times. None of the records describe the psoriasis and arthritis as “extreme” or even severe. None of the medical records mention a diagnosis of Post Traumatic Stress. None of the doctors confirm that the psoriasis was brought on by stress, let alone by the stress “of the title search failure, and the failure of Mr. Warne to refund my money”.

[34] Most importantly, there is nothing in the medical records that suggest that his psoriatic arthritis would have prevented the plaintiff from taking steps to retain counsel to advance his lawsuit or to advance his lawsuit as a self-represented litigant.

[35] As I stated in Tracey v. Leon’s Furniture:

If the plaintiff wished to rely on her PTSD and depression as a justification for being “unable” to proceed with the litigation for over three years […] the court would have expected, at a minimum, a report from her health care provider substantiating that claim.[^8]

[36] In fact, on cross-examination, although he initially stated the main reason for not pursuing the action was because he was sick,[^9] the plaintiff admitted that his psoriatic condition did not prevent him pursuing this action. In particular when he was asked whether as of July 15, 2014 (the date of the Sokoluk report and four months before the dismissal) “was your medical condition any impediment to you dealing with your lawsuit against Mr. Dineen in any way?”, his answer was “no”[^10]. He did not know what his medical condition in the summer of 2014 had to do with his ability to pursue the litigation against Dineen.[^11] Indeed his medical condition did not prevent him from filing a notice of intention to act in person in February 2014. It did not prevent him from dealing with the title issues and retaining a lawyer to have his mother’s interest in the property transferred to him and having his aunt’s mortgage discharged in April and May 2014. Further, by July 2014 he was in Toronto and back to work at his print shop and his medical condition did not prevent him from working (although he could arrive late and leave early because he owned the shop).[^12]

[37] Rather, the plaintiff did nothing to advance his action after Warne was removed as his lawyer in May 2013 was because, at least by the time the status notice was issued, he “wasn’t really interested” in the lawsuit and was “fed up”[^13]. He “just mentally gave up” and “didn’t do nothing”.[^14] He also stated that and he was out of money and the action was too expensive to pursue[^15] although if he wanted to, he could have borrowed the money.[^16] He “just figured” he “got screwed and that was it.”[^17] With “the stress, it just wasn’t worth it.”[^18] He also admitted that getting his mother’s interest in the property transferred to him without the aunt’s mortgage in April and May 2014 was one of the reasons that he lost interest in pursuing the action against Dineen.[^19]

[38] Simply put, the evidence does not support the proposition that the plaintiff’s medical condition prevented him from pursuing the action after Warne was removed from the record, either by retaining a lawyer or by taking steps himself. Rather he had fixed the problem about his aunt’s mortgage being on title and having his mother’s interest transferred to him, he was low on money and was fed up with the whole litigation process. He simply lost interest in the action against Dineen. In my view that amounts a deliberate decision not to pursue the action.

[39] The first Reid factor as quoted by the court of appeal in Marché d'Alimentation Denis Thériault Ltée. v. Giant Tiger Stores Ltd. states: “If either the solicitor or the client made a deliberate decision not to advance the litigation toward trial then the motion to set aside the dismissal will fail.”[^20] While the law is now clear that the plaintiff need not rigidly satisfy each of the four Reid factors and that all relevant factors are to be considered and weighed on a contextual basis[^21], subsequent decisions of the court of appeal have clearly distinguished delay resulting from inadvertence or solicitor’s negligence from intentional delay or a deliberate decision to put the file in abeyance.[^22]

[40] The following observations by Ellies J. in the recent case of Madisen v. Nindon Investments Ltd. are apposite:

While the decision in Scaini casts some doubt as to whether a deliberate decision not to advance the litigation will always be fatal to the motion, it is hard to imagine a scenario where such a decision would not substantially impair a plaintiff's efforts to revive a lawsuit dismissed for delay.[^23]

[41] Although this action was dismissed in November 2014, I have considered as part of the context to the delay, the amendments to rule 48.14 that came into effect January 1, 2015 for actions not dismissed prior to that date. Pursuant to those amendments, actions will not be dismissed by the registrar until 5 years after they are issued.[^24] This demonstrates a greater tolerance for delay.[^25] I consider as part of the context that if the new rules had been in effect, the action would not have been dismissed by the registrar until July 6, 2017, a date not yet passed. If this were a case of lawyer neglect in the conduct of the litigation, the contextual factor of the longer deadline before dismissal would carry great weight. There has however not been a lawyer of record since May 2013 and I have determined that the delay or neglect of this action was deliberate on the part of the plaintiff personally. The context provided by the change in the rule is not a “get out of jail” card for every case of delay of less than five years. In my view that contextual factor is far outweighed by the plaintiff’s deliberate decision not to move the action forward.

[42] Even if the plaintiff’s deliberate decision not to advance the litigation until May 2015 is not fatal to the motion, clearly the plaintiff has failed to provide a reasonable explanation for the delay and he has failed to satisfy the first Reid factor.

Was the Dismissal a Result of Inadvertence?

[43] Was the penultimate dismissal on November 14, 2014 a result of inadvertence? The plaintiff’s affidavit is silent on whether he received the status notice issued on August 5, 2014,[^26] although in his factum he asserts that he did not receive the status notice and that he testified to that effect at cross-examination. That is misleading. Although he initially stated at cross-examination that he did not receive a document from the court providing him with notice that his action would be dismissed in 90 days if he did not take certain steps,[^27] he then clarified that further in the cross-examination by stating that he didn’t “recall” getting such a letter.[^28] When asked if he would have remembered getting a notice indicating his action was going to be dismissed, he answered: “To be honest with you, I wasn’t really interested. Well, I don’t know.”[^29] When asked “You weren’t really interested in the action at this point? Right?”, he answered, “Yes, I just…like I said, I was fed up man, I don’t know.”[^30]

[44] There is no dispute but that the address set out in the status notice was the Queen Street address where the plaintiff owned the print shop and where he also resided when he was in Toronto. When he was in Guyana, his mother received his mail. The plaintiff believed he was in Toronto in August 2014 because it was warm weather in Toronto.[^31] The plaintiff undertook to provide his passport to ascertain when he was in Toronto but both counsel agree that the stamps in the passport are inconclusive.

[45] I am unable to conclude whether the plaintiff failed to receive the status notice (which would have made the dismissal the result of inadvertence) or whether he paid no attention to it because he was fed up (which would have made the dismissal either deliberate or at least a result of wilful blindness). It is clear that even if he did receive it, he was not interested. The onus however is on the plaintiff to satisfy me that the dismissal arose as a result of inadvertence. He has failed to meet that onus. In my view the plaintiff has failed to satisfy the second Reid factor.

Moving Promptly

[46] Did the plaintiff receive the dismissal order on or shortly after November 14, 2014, the date it was issued and addressed to the plaintiff at his Queen Street address? Again, the plaintiff’s affidavit is silent on the issue. At cross-examination he initially stated that he received the order and got it from the court,[^32] but later said he did not recall receiving it, but it was possible that he did, but as it was in his motion record “then I got it”.[^33] Mr. Bogue then interrupted and accused Mr. Bernstein of “trapping” his client and put on the record that he, Mr. Bogue obtained the order from the court office in May 2015, showed it to his client and that is how the order made its way into his motion record. Of course Mr. Bogue has given no affidavit evidence himself and Mr. Bogue was not the affiant under cross-examination. The plaintiff then testified that he believes he was in Guyana on the November 2014 date,[^34] although his mother was at the Queen St. address and would tell him if there was mail for him.[^35] There is however some evidence that Mr. Bogue obtained the order on or about May 7, 2015, the date he sent an email to Mr. Warne indicating he was retained to “reopen” the case against Dineen.

[47] In the result it matters not whether the plaintiff received the dismissal order on or about November 14, 2014 when it was sent by the court or May 7, 2015 when it was retrieved by Mr. Bogue from the court file. The notice of motion was served on the lawyers for Dineen and the lawyers for Warne on June 26, 2015. In my view the plaintiff has moved promptly to set aside the dismissal once the order came to the plaintiff’s attention. The plaintiff has satisfied the third Reid factor.

Prejudice

[48] The action against Dineen was for negligence arising out of professional services rendered between October and December 2011. Notwithstanding that the action was commenced within the limitation period on July 6, 2012, by the time the action was dismissed in November 2014, the limitation period for an action against Dineen had passed.

[49] When a limitation period has passed by the time of the dismissal (as in this case), there is a presumption of prejudice, the strength of which increases with the passage of time. This is because the memories of witnesses fade over time giving rise to trial fairness concerns. Where the presumption arises, the onus is on the plaintiff to rebut the presumption. If the plaintiff rebuts the presumption, the onus shifts to the defendants to establish actual prejudice.[^36]

[50] The prejudice that must be considered is to the defendants’ ability to defend the action as a result of the delay or of steps taken following dismissal of the action.[^37]

[51] One method of rebutting the presumption of prejudice is for the plaintiff to provide evidence that all relevant documents have been preserved, key witnesses are available or that certain elements of the claim may not be in issue.[^38] On the other hand, if the case turns largely on documents or expert evidence, the availability and evidence of key witnesses may be less important.[^39]

[52] It is however not always necessary for the plaintiff to lead affirmative evidence that documents have been preserved and witnesses are still available in order to rebut the presumption of prejudice. Rather, in evaluating the strength of the presumption, the court must consider all of the circumstances including the defendant’s conduct in the litigation and whether the defendant’s actions are inconsistent with a presumption of prejudice or with any alleged actual prejudice arising from the delay in prosecuting the action.[^40]

[53] A defendant’s “lack of display of any sense of urgency”, or a defendant’s continuing to participate in an action notwithstanding delay undercuts a claim that the defendants would be prejudiced in defending the claim at trial.[^41]

[54] In this case the plaintiff has not provided one scintilla of evidence to address the presumption of prejudice. His factum under the heading “No prejudice to the defendants” states that Dineen’s insurer, Law Pro, is an entity set up to protect the public from lawyer malfeasance and then goes on to discuss Mr. Warne’s handing of the file and the demand for return of the retainer. It concludes with a statement that the actions against both Dineen and Warne are for malpractice and as such “justice and protection of public confidence are of paramount importance.” With respect, these statements do not address the issues of rebutting the presumption of prejudice to Dineen (the only current defendant) as a result of the delay and dismissal.

[55] In argument Mr. Bogue attempted to address the factor by arguing that the land register speaks for itself and the only witnesses would be the plaintiff and Dineen. There is absolutely no evidentiary foundation to support that proposition.

[56] The plaintiff does not give evidence as to what documents are relevant and preserved or what witnesses are available. He does not even make a bald statement that “all relevant documents are preserved and all witnesses are available” (which has been held in at least one case to satisfy the criteria if given by the lawyer with carriage and unchallenged)[^42]. In this case there have been no affidavits of documents exchanged and no productions made. There have been no examinations for discovery. The lawyers for Dineen point out that relevant witnesses would also be the plaintiff’s father, mother and aunt. There is no evidence of their availability, although there is evidence that the father now resides in Guyana and he is no longer co-operating in transferring his half interest in the property to his son as originally promised.

[57] Even after the plaintiff became aware of the dismissal of the action, he has had time to put together an affidavit of documents and make production or at least advise what documents are preserved and what witnesses are available. It would likely not have been a difficult task to rebut the presumption by providing at least some evidence of documents and witnesses, but for reasons never made clear, he has failed to do so.

[58] The presumption of prejudice has therefore not been rebutted by affirmative evidence. Likewise there is no evidence of any conduct or steps taken in the action by the defendant Dineen that would be inconsistent with a presumption of prejudice.

[59] The plaintiff has failed to rebut the presumption of prejudice and it is unnecessary for the defendant Dineen to adduce evidence of actual prejudice (and none was adduced). The plaintiff has failed to satisfy the fourth Reid factor.

Conclusion

[60] The plaintiff has failed to meet three of the four Reid factors - explanation of delay, inadvertence in missing the deadline and demonstrating an absence of prejudice. His affidavit evidence is sadly deficient and his cross-examination was particularly effective in dismantling his meagre explanation as to delay. In considering all factors on a contextual basis, but particularly the deliberate decision not to pursue the litigation because the plaintiff had lost interest in the litigation and was fed up, and in weighing the public interest in promoting timely resolution of disputes and finality of litigation as against the public interest in deciding actions on their merits and granting an indulgence when appropriate, it would not be just in all the circumstances herein to set aside the dismissal of the action.

MOTION TO ADD DEFENDANT TO ACTION

Preliminary Considerations

[61] As the action has not been revived, there is no action to which Warne can be added as a party. There is no legal basis or jurisdiction to grant the alternate relief first raised in oral argument of ordering that if a new action were commenced against Warne, it be deemed to have been commenced on the date that the amendment motion was served.

[62] In case I am wrong in my determination that the action should not be revived, I consider on its merits whether Warne or RH should be added as a party to the action. It is unclear whom the plaintiff wishes to add as a party. The plaintiff and Mr. Bogue have from time to time talked about adding Warne as a defendant and the heading in the plaintiff’s factum is “Adding Mr. Warne as a Party”, but the notice of motion in the motion record is for an order “adding Ricketts, Harris as a defendant”. Given my view that neither defendant should be added, it is not necessary to resolve this contradiction, however I will assume that the intention of the plaintiff was to add both Warne and RH as defendants.

The Draft Amendments

[63] The draft amended statement of claim pleads the following as material facts under the heading “The Claim by Ronnie Jodha against Tracey C. Warne and Ricketts, Harris LLP”. He pleads in paragraph 30 that on Feb. 28, 2013 Warne wrote the plaintiff with the good news that LawPro was offering to resolve the claim against Dineen by transferring half of the title back to the plaintiff free and clear of the $440,000 lien on the other half. In paragraph 31 he pleads that on March 6, 2016 (sic: 2013) the plaintiff wrote to Warne and instructed him to continue the action to recover monetary damages of $416,000 and not to settle for half a title with a $440,000 debt on the other half. Paragraph 32 pleads that Warne obtained an order removing his firm as lawyer of record while “misadvising” the plaintiff that he “should not be coming to court to address his concerns about a refund”. Finally paragraph 33 pleads that after falling ill due to the stress, the plaintiff hired current counsel who contacted Warne on May 7, 2015 and “(again) demanded either a refund of the $5,000 retainer or dates for a motion to add Mr. Warne/Ricketts as co-defendants” and when dates were given a notice of motion was mailed on May 7, 2015. (As previously noted, however, the plaintiff admits that the notice of motion was sent on May 7 only to Dineen’ s lawyer and not to Warne.)

[64] The draft amendments then have a heading “Damages” followed by paragraph 34 which, as limitations are an issue, is set out in full as follows:

34. Plaintiff now also makes a claim against his former counsel, Tracey Warne for:

1. a refund of the retainer paid, on the grounds that after filing a Statement of Claim on his behalf, Mr. Warne advised the Plaintiff he did not really have any cause of action;

2. fraudulently advising the court that Mr. Warne had obtained the consent of the Plaintiff to have Mr. Warne removed as counsel of record, to which the Plaintiff strongly objected unless a full refund of the retainer was paid;

3. damages in the amount of $100,000 for negligently causing additional pain and suffering:

a) by first advising the Plaintiff in writing that LawPro was going to pay the costs to correct the negligence of Mr. Dineen, then turning around and advising the Plaintiff that he had no case, and

b) for leaving the Plaintiff without counsel at a time Mr. Warne knew of the Plaintiff’s debilitating condition, which abandonment led to the dismissal of the Plaintiff’s action.

The Law

[65] Rule 26.01 provides that “on motion at any stage of an action, the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.” However, if a party is to be added by way of amendment to the pleading regard must be had to rule 5.04.

[66] Rule 5.04(2) provides that “at any stage of the proceeding the court may by order add…a party…on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.”

[67] While the court will not “conduct a detailed examination of the evidentiary merits of a proposed amendment”, the court is required to “scrutinize the proposed claim to ensure it is meritorious in the sense of raising a tenable plea”[^43]:

The amended pleading must be legally tenable. It is not necessary to tender evidence to support the claims nor is it necessary for the court to consider whether the amending party is able to prove its amended claim. The court must assume that the facts pleaded in the proposed amendment (unless patently ridiculous or incapable of proof) are true, and the only question is whether they disclose a cause of action. Amendments are to be granted unless the claim is clearly impossible of success. For this purpose amendments are to be read generously with allowance for deficiencies in drafting.[^44]

[68] If a party is to be added however, it may be “appropriate to consider the evidence proffered in support of the addition of the new party, as the court must consider whether the cause of action alleged against such party is tenable, as part of the process in determining whether such addition is just and reasonable.”[^45] The court however should not engage in a “detailed examination of the evidentiary merits” such as in “a summary judgment analysis.”[^46]

[69] Further, the proposed amendments must comply with the rules of pleading:

The proposed amendments must otherwise comply with the rules of pleading. For example the proposed amendments must contain a "concise statement of material facts" relied on " but not the evidence by which those facts are to be proved" (rule 25.06 (1)), the proposed amendments are not "scandalous, frivolous or vexatious" (rule 25.11 (b)), the proposed amendments are not "an abuse of the process of the court" (rule 25.11 (c)), the proposed amendments contain sufficient particulars - for example of fraud and misrepresentation (rule 25.06 (8)).[^47]

[70] If the amendments seek to add a party, then additionally the moving party must demonstrate that joinder is appropriate considering rule 5.02(2), 5.03(1) and 5.05, and must not be shown to be an abuse of process, such as adding parties for a tactical reason.[^48] These grounds are not raised on this motion.

[71] Further, when a party is sought to be added to an existing action, “there is an onus on the party seeking to add a party defendant to justify the request when made at a late stage of the proceedings…It is appropriate to require a valid explanation as to why no steps were taken in a timely manner to add a proposed party defendant in circumstances where the alleged need to do so has been known for months.”[^49] This is particularly appropriate in considering issues of discoverability on a limitations analysis, where the onus is on the plaintiff to demonstrate due diligence.

[72] Clearly, as stated in rules 26.01 and 5.04(2), an amendment will not be permitted if it will result in irremediable prejudice to the other party. One example of such prejudice is when an action is started or a party added after passage of a limitation period.

[73] Section 21(1) of the Limitations Act, 2002[^50] (“Limitations Act” or “Act”) provides:

21(1) If a limitation period in respect of a claim against a person has expired, the claim shall not be pursued by adding the person as a party to any existing proceeding.

[74] It is therefore clear that parties cannot be added to an existing action after the expiry of the limitation period.[^51] The common law doctrine permitting the extension of a limitation period due to special circumstances does not apply to actions governed by the Limitations Act which came into force on January 1, 2004. Rules 5.04(2) and 26.01 must now be applied so as to give effect to section 21(1) of the Act.[^52]

[75] The basic limitation period as set out in paragraph 4 of the Act is two years from the date of discovery of the claim:

4. Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.

[76] Establishing the day that the claim was discovered is governed by section 5 of the Act:

5(1) A claim is discovered on the earlier of,

(a) the day on which the person with the claim first knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or omission was that of the person against whom the claim is made, and

(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.

[77] It is therefore presumed that a claim was discovered on the day that the act or omission on which the claim was based occurred unless the moving party proves that the claim was not discovered and could not with reasonable diligence appropriate to the plaintiff have been discovered until a later date.

[78] Although the case law quoted below deals with discovery of the identity of a party the same principles apply to the approach a court should take to a motion to add a party when it is alleged that a claim against that party was not discovered and could not reasonably have been discovered within two years of the amendment :

What is the approach a judge or master should take on a motion to add a defendant where the plaintiff wishes to plead that the limitation period has not yet expired because she did not know of and could not with due diligence have discovered the existence of that defendant? In my view, as is clearly implied in Zapfe, the motions court must examine the evidentiary record before it to determine if there is an issue of fact or of credibility on the discoverability allegation, which is a constituent element of the claim. If the court determines that there is such issue, the defendant should be added with leave to plead a limitations defence. If there is no such issue, as for example where the evidence before the motions court clearly indicates that the name of the tortfeasor and the essential facts that make up the cause of action against such tortfeasor, were actually known to the plaintiff or her solicitor more than two years before the motion to amend, the motion should be refused. If the issue is due diligence rather than actual knowledge, this is much more likely to involve issues of credibility requiring a trial or summary judgment motion, provided of course that the plaintiff gives a reasonable explanation on proper evidence as to why such information was not obtainable with due diligence. That is not to say that such motion could never be denied if the evidence is clear and uncontradicted that the plaintiff could have obtained the requisite information with due diligence such that there is no issue of fact or credibility.[^53]

[79] Therefore, if the plaintiff actually knew of the facts that make up the cause of action more than two years before the motion to amend, the motion should be refused. If discoverability rather than actual knowledge is the issue, it is has been held that not much evidence is required to establish reasonable diligence at the pleadings amendment stage, however, one would expect to find evidence by way of affidavit setting out a list of attempts “to obtain information to substantiate the assertion that the party was reasonably diligent and provide an explanation for why she was unable to determine the facts.”[^54] There clearly must be evidence of such attempts:

Therefore, as long as the plaintiff puts in evidence as to steps taken to ascertain the identity of the tortfeasors and gives a reasonable explanation on proper evidence as to why such information was not obtainable with due diligence then that will be the end of the enquiry and the defendants will normally be added with leave to plead a limitations defence. This is not a high threshold. If the plaintiff fails to provide any reasonable explanation that could on a generous reading amount to due diligence the motion will be denied.[^55]

[80] There are three possible results of a motion to add a party when a limitations defence is raised depending whether on the evidence related to actual knowledge or discoverability the court is satisfied either that the limitation period has clearly expired, the limitation period has clearly not expired or it is unclear whether the limitation period has expired:

Motions to amend pleadings and/or to add parties where the expiry of a limitation period is raised in response may be divided into three categories.

The first category is the situation where it is clear that no limitation period has expired. In that situation the motions master or judge should grant leave to amend or to add parties.

The second category is the situation where it is unclear whether or not a limitation period has expired. In that situation leave to amend or to add a party should be granted, subject to the term that the responding party or parties may raise a limitation of action defence. In that situation the issue of whether a limitation period has expired is left to be determined on a motion for summary judgment or by the trial judge.

The third category is situations where it is clear on the evidence before the motions judge or master that a limitation period has expired. In that situation the motion to add parties or to amend a pleading should be denied.[^56]

[81] On a strict reading of section 21 of the Limitations Act, which states that a party cannot be “added” after the limitation period has expired, an order would have to be granted and the amendments made prior to the expiry of two years after the claim was discovered. That test however is too restrictive. The date of hearing of the motion and the date the judge or master decides the issue is beyond the control of the moving party. In my view the rights of the parties crystallize when the notice of motion to add the party has been served on all parties affected by the order sought.[^57] Parties affected by the order sought, and on whom the notice of motion must be served, would include the proposed defendant, particularly when limitations issues are engaged.

Analysis of the Proposed Claims

[82] With these principles in mind I will examine the claims proposed to be advanced against Warne and/or RH.

[83] Although Mr. Bogue advised Mr. Warne on May 7, 2015 that he had been retained to reopen the case against Dineen and seek a refund of the retainer that the plaintiff paid to Warne, the first time any notice of motion was served on Warne (or on RH) was on June 26, 2015. The May 7 letter mentioned no claim against Warne for anything other than return of retainer. Even the notice of motion (to add RH as a defendant) served on June 26 contained no description of the nature of the claims that would be advanced against RH or Warne. The first description of the nature of the claim was contained in the motion record served on July 8, 2015 which included one page of the proposed amendment setting out the nature of the claim. Nonetheless, June 26, 2015 is the date that the notice of motion was served to add RH as a defendant and in my view that is the date that the rights of the parties to the amended pleading crystallized. The plaintiff is required to demonstrate that he did not know and could not reasonably have discovered that he had a claim against Warne (i.e. that Warne’s acts or omissions caused or contributed to the plaintiff’s loss) before June 26, 2013.[^58]

(a) Paragraph 34(1): Return of Retainer

[84] The first claim advanced is a refund of the $5,000 retainer on the grounds that after filing a statement of claim against Dineen, Warne advised the plaintiff that he really did not have a cause of action. Although it is clear on the evidence that Warne never told the plaintiff that he did not have a cause of action against Dineen, I must, on a pleadings amendment motion not consider whether the evidence supports the claim but only consider if a tenable cause of action is set out in the proposed amendment assuming the facts pled to be true (unless “patently ridiculous or incapable of proof”). Using that standard, it is tenable to claim against a lawyer to return a retainer when the lawyer has wasted the client’s money starting an action that had no hope of success. Although the claim for return of retainer may have little chance of success on an evidentiary basis, it has been tenably pled.

[85] On the other hand, the claim for return of the retainer is clearly out of time. Warne recommended LawPro’s offer on February 28, 2013 and on March 7, 2013 told the plaintiff that nothing could be done about the aunt’s mortgage. The plaintiff first demanded that Warne return his $5,000 retainer and gave reasons why he was entitled to it on March 14, 2013. The plaintiff had also signed a complaint against Warne on March 12, 2013 which was received by the Law Society on April 12, 2013 (a) alleging that Warne at first told him he could sue Dineen but after speaking to Law Pro said he couldn’t sue and (b) indicating he wanted back the money he paid to Warne. That is precisely the claim advanced in the amendments. The plaintiff knew he had a claim against Warne for the return of his retainer based on the change in legal advice as early as March 7, 2013, but in any event no later than March 14, 2013. This is not a matter of discoverability but of actual knowledge that he had a claim against Warne for the return of the deposit. The limitation period expired at the latest on March 14, 2015, 3½ months before service of the notice of motion to add Warne as a defendant.

[86] I would add, because this is the one claim mentioned in Mr. Bogue’s email sent on May 7, 2015 to Mr. Warne, that even if the limitation period stopped running on May 7, 2015 for the claim for return of retainer, this was still more than two years after the claim was discovered.

(b) Paragraph 34(2): Claim for Fraudulently Telling the Court the Plaintiff Consented to the Removal of Mr. Warne

[87] The second claim advanced against Warne is “for fraudulently advising the court” (on the motion to be removed from the record) that he had obtained the plaintiff’s consent to the motion although the plaintiff strongly objected unless the retainer was repaid. In the facts supporting this “claim” the plaintiff pled that Warne obtained the removal order while misadvising the plaintiff that he should not be coming to court to address his concerns about a refund. There are two fatal problems with this claim.

[88] In the first place, the claim is out of time. The discussion with Mr. Warne’s articling student about whether it was necessary for the plaintiff to return to court (as described earlier in these reasons) took place on the date that the motion was heard, May 15, 2013. Master Peterson’s removal order citing in the preamble that “the client having advised counsel that he would not be appearing to oppose” was served by mail on the plaintiff on May 16, 2013. It is deemed to be served on May 23, 2013[^59] and the plaintiff admits having received it. The limitation period expired, at the latest, on May 23, 2015, more than a month before the notice of motion to add RH was served.

[89] Secondly the claim as set out in the proposed amendments is untenable and sets out no cause of action. The other claims advanced are for “refund of retainer” and “damages” for negligently causing pain, but for this claim the plaintiff states only that he makes a claim against Warne for “fraudulently advising the court…” He does not claim any damages arising from this alleged fraudulent advice nor does he seek any declaratory or other relief. In the absence of any damages or other relief claimed for Warne’s “fraudulent” statement to the court there can be no cause of action in fraud or otherwise.

[90] Even if the plaintiff had claimed damages for making a fraudulent statement to the court, I fail to see how damages could flow from Warne falsely telling the court that the plaintiff consented to the removal when he really objected unless the retainer was repaid. There would have been no basis for the court to have refused the removal even if the plaintiff had returned to the court and stated he objected to the removal unless the retainer was repaid. The plaintiff had told Warne that Warne had “stolen” from him and that Warne was plotting with Dineen’s insurer “behind [his] back”. Clearly the solicitor-client relationship had broken down, which is the basis for the court granting removal from the record under rule 15.04:

The test is not whether the client wants the solicitor to continue to act for him. The test is whether there has been such loss of confidence that justifies the solicitor's withdrawal. In my view it is obvious that the solicitor-client relationship has broken down. Mr. Nicolardi does not have confidence in Davis's competence, integrity or opinion. It was reasonable for Davis to ask to withdraw. It is asking the impossible of the solicitor to continue to represent a client in light of such criticism about the services that he has provided.[^60]

There is no possible cause of action arising out Warne telling Master Peterson fraudulently or otherwise that the plaintiff’s consent to removal was conditional on the return of his deposit.

[91] In any event, Master Peterson would have had no jurisdiction on a removal motion to order the return of the deposit.

[92] While the evidentiary foundation that could prove or disprove the proposed claim is not to be considered on the motion (and I have not considered it), I wish to make it clear that the claim made that Warne fraudulently advised the court that the plaintiff consented to the removal motion is clearly not true. Firstly, the preamble to the order refers to the plaintiff “having advised counsel that he would not be appearing to oppose” and does not say that the plaintiff “consented”. Secondly the plaintiff admitted on cross-examination that he told the student that he would not be re-attending to oppose and the student should just do what he had to do to get it done.

(c) Paragraph 34(3)(a): Damages for About-Face on the Viability of the Plaintiff’s Claim

[93] The third claim is for damages for “negligently causing additional pain and suffering by first advising the Plaintiff in writing that LawPro was going to pay the costs to correct the negligence of Mr. Dineen, then turning around and advising the Plaintiff that he had no case.”

[94] Again this claim is time barred. Warne told the plaintiff in writing that he was “confident [the plaintiff] will succeed” on January 11, 2013. Warne told him on March 7, 2013 that nothing could be done about the aunt’s mortgage. The plaintiff has known about this alleged about-face by Warne since March 7, 2013. In his complaint to the Law Society signed on March 12, 2013 the plaintiff complained about this very issue. The limitation period expired on March 7, 2015 at the latest, 3½ months before the notice of motion was served.

(d) Paragraph 34(3)(b): Damages for Leaving the Plaintiff Without Counsel When Plaintiff was Debilitated

[95] The fourth claim is for damages for “negligently causing additional pain and suffering …for leaving the Plaintiff without counsel at a time Mr. Warne knew of the Plaintiff’s debilitating condition, which abandonment led to the dismissal of the Plaintiff’s action”.

[96] This claim too is out of time. The plaintiff knew he was being “abandoned” as early as April 12, 2013 when the removal motion was served and at the latest on May 23, 2013 when he received Master Peterson’s order. The limitation period would have expired by May 23, 2015, more than two months before the notice of motion to add RH was served.

[97] The plaintiff argues however that damages from the abandonment did not accrue until the action was dismissed on November 14, 2014 and it was only at that time that there could have been a cause of action against Warne for getting off the record. I disagree. The plaintiff was well aware that he was “abandoned” by May 2013 and that he needed to do something about it.

[98] I any event, the claim that the dismissal on November 14, 2014 could have any causal connection to or that damages could flow from Warne being removed from the record 18 months earlier is “patently ridiculous.” The plaintiff had 18 months to take steps to proceed with the action and avoid the dismissal. In fact when the plaintiff filed a notice of intention to act in person on February 26, 2014 he would have been clearly aware that Warne had no further responsibility for the file and it was up the plaintiff himself to take steps in the action. On cross-examination he admitted to not pursuing the action because he had lost interest and was fed up. To some extent this resulted from the plaintiff having obtained a transfer to him of his mother’s interest in the property and the removal of the aunt’s mortgage as well as a lack of funds. He denied that his medical condition was an impediment to his dealing with the lawsuit against Dineen. It is clear that the claim against Warne on this ground is untenable and has no chance of success.

Section 7 of the Limitations Act

[99] Although not mentioned in the plaintiff’s motion record or factum, Mr. Bogue suggested in argument that the limitation period would be extended because of section 7(1)(a) of the Limitations Act which provides that the limitation period does not run during any period of time when the plaintiff “is incapable of commencing a proceeding in respect of the claim because of his or her physical, mental or psychological condition”. I have already discussed in that part of these reasons dealing with litigation delay that there was no medical evidence to support any claim that the plaintiff’s physical, mental or psychological condition prevented him from proceeding with this action. Similarly there is no medical evidence to support any claim that the plaintiff’s physical, mental or psychological condition prevented him from commencing an action against Warne or adding him to the existing action at a much earlier date. In fact the plaintiff admitted at his cross-examination that his medical condition had not prevented him from pursuing this action and that he failed to do so because he had lost interest and was fed up.

[100] In any event section 7(2) of the Act provides that a person “shall be presumed to have been capable of commencing a proceeding in respect of a claim at all times, unless the contrary is proved.” The plaintiff has clearly failed to rebut that presumption.

[101] There is no aspect to the plaintiff’s proposed claim against Warne that will be permitted.

COSTS

[102] The defendant Dineen was completely successful in opposing the motion to set aside the registrar’s order dismissing the action for delay and is entitled to his costs. His costs outline indicates actual costs incurred of $15,210 to the September 28, 2015 adjournment including $13,412 fees plus counsel fee of $734 on September 28 plus HST and disbursements. He seeks costs on a partial indemnity scale of $11,000 all inclusive consisting of $9,552 up to the September 28, 2015 adjournment plus an additional sum for the November 4, 2015 appearance.

[103] The defendant Dineen does not ask me to fix costs of the action (only costs of the motion). Dineen is of course entitled to have his costs of the action assessed if so instructed under rule 58.01 since the order of the registrar dismissed the action for delay “with costs” and that order has not been set aside.

[104] The proposed defendants Warne and RH were also completely successful in opposing the motion to amend the statement of claim by adding them as defendants to the action. They are entitled to their costs. Their costs outline indicates substantial indemnity costs incurred of $18,181 to the September 28, 2015 adjournment including $16,107 fees plus counsel fee of $734 on September 28 plus HST and disbursements. I would have considered a request for substantial indemnity costs given the allegations of fraud against Warne; however they seek costs only on a partial indemnity scale. They ask for partial indemnity costs of $12,000 all-inclusive consisting of $11,059 up to the September 28, 2015 adjournment plus an additional sum for the November 4, 2015 appearance.

[105] In determining the quantum of costs I must consider the factors in rule 57.01 and award costs that are fair and reasonable in all the circumstances and within the reasonable expectations of the losing party, rather than indemnifying the winning parties for actual costs incurred, even on a partial indemnity scale. Both defendants seeks cost on a partial indemnity scale.

[106] The motion was important to all three parties since both the continuation of the claim against Dineen and the ability to assert a claim against Warne were at stake. Both motions were relatively complex. Significant work was done by counsel for Dineen and counsel for Warne both of whom were dealing with very different issues. Both prepared a factum and authorities and Warne prepared a responding record. The hourly rates charged are reasonable and the hours spent, while considerable, are not beyond what was reasonably required. The cross-examination of the plaintiff was reasonable, necessary and provided significant evidence to defeat the plaintiff’s motion. The duration of the cross-examination was unnecessarily lengthened because of the conduct of plaintiff’s counsel who interfered with the cross-examination by an excess of improper interruptions and objections and attempts to reword his client’s answers and to put in his own evidence. This turned what could have been a short pointed examination into a 198 page transcript. The adjournment on September 28 was necessary solely due to plaintiff’s counsel substantially under booking the time required for the motion.

[107] Had the plaintiff been successful he would have sought costs of $13,053 on a partial indemnity scale based on substantial indemnity costs of $19,230 (inclusive of $17,100 fees). He would have sought half of that amount, $6,500, against Dineen and the other $6,500 against Warne.

[108] In all the circumstances I find costs of $9,000 all inclusive to Dineen and $10,000 to Warne to be fair and reasonable and within the plaintiff’s reasonable expectations. Greater costs are awarded to Warne since only he prepared a responding motion record.

ORDER

[109] I hereby order as follows:

(1) The motion to set aside the order of the registrar dated November 14, 2014 dismissing the action for delay is dismissed.

(2) The motion for leave to amend the statement of claim by adding Tracey Warne and Ricketts, Harris LLP as defendants is dismissed.

(3) The plaintiff shall pay to the defendant Paul Anthony Dineen his costs of the motion within 30 days fixed in the sum of $9,000.

(4) The plaintiff shall pay to the proposed defendants Tracey Warne and Ricketts, Harris LLP their costs of the motion within 30 days fixed in the sum of $10,000.

Master R. Dash

DATE: November 20, 2015

[^1]: Rule 48.14(1) required the registrar to serve a status notice on the parties if the action was not placed on a trial list within two years after the first defence was filed. By rule 48.14(0.1) “defence” included a notice of intent to defend. The status notice would require that the action be set down or a status hearing requested within 90 days. [^2]: Rule 26.03(2) provides “An amendment to a pleading shall be underlined so as to distinguish the amended wording from the original…” [^3]: Tracey v. Leon’s Furniture Ltd., 2012 ONSC 6116, [2012] O.J. No. 5305 (SCJ – Master). [^4]: H.B. Fuller Company v. Rogers, 2015 ONCA 173, paras. 20 to 28 [^5]: Factors summarized in Reid v. Dow Corning Corp., [2001] O.J. No. 2365 (S.C.J. – master), reversed on other grounds [2002] O.J. No. 3414 (Div. Ct.) [^6]: This summary has been adapted from my decision in Belay v. Ages, 2015 ONSC 2377, [2015] O.J. No. 1928. [^7]: Marché d'Alimentation Denis Thériault Ltée. v. Giant Tiger Stores Ltd. (2007), 2007 ONCA 695, 87 O.R. (3d) 660 (C.A.) at para. 12 [^8]: Tracey v. Leon’s Furniture Ltd., supra, at para. 29 [^9]: Jodha transcript of cross-examination taken August 6, 2015 (hereinafter “Transcript”) at questions 751, 754-758. [^10]: Transcript questions 798-799. [^11]: Transcript questions 810-811. [^12]: Transcript questions 783-784, 788-794. [^13]: Transcript question 725-726. [^14]: Transcript questions 393 and 815. [^15]: Transcript questions 747 to 752 [^16]: Transcript question 759. [^17]: Transcript question 816. [^18]: Transcript question 817. [^19]: Transcript questions 820, 1020-1025. [^20]: Marché d'Alimentation Denis Thériault Ltée. v. Giant Tiger Stores Ltd., supra, at para. 12 [^21]: Scaini v. Prochnicki, 2007 ONCA 63, 85 O.R. (3d) 179 at para. 21-25 [^22]: Aguas v. Rivard Estate, 2011 ONCA 494, [2011] O.J. No. 3108 (C.A.) at para. 15-16; Habib v. Mucaj, 2012 ONCA 880, [2012] O.J. No. 5946 (C.A.) at para. 7 [^23]: Madisen v. Nindon Investments Ltd., 2015 ONSC 3786, 126 O.R. (3d) 611 at para. 18. [^24]: New rule 48.14(1)1 in effect January 1, 2015. [^25]: Klaczkowski v. Blackmont Capital Inc., 2015 ONSC 1650 (Div. Ct.) at paras 29-33; Belay v. Ages, 2015 ONSC 2377, [2015] O.J. No. 1928 (SCJ –Master) at para. 55; Dang v. Nguyen, 2014 ONSC 7150, [2014] O.J. No. 5880 (Div. Ct.) at para. 3; Elkhouli v. Senathirajah, 2014 ONSC 6140, (SCJ – Master) at paras.43-48. [^26]: In the plaintiff’s supplementary affidavit which was withdrawn at the start of the hearing of the motion, the plaintiff stated that he did not receive the status notice, but that is not admissible evidence before me. [^27]: Transcript question 719. [^28]: Transcript question 721. [^29]: Tanscript question 725. [^30]: Transcript question 726. [^31]: Transcript questions 709-710. [^32]: Transcript questions 615-616. [^33]: Transcript question 649-6551 [^34]: Transcript questions 667-670. [^35]: Transcript questions 679-681. [^36]: Wellwood v. Ontario, 2010 ONCA 386, [2010] O.J. No. 2225, 102 O.R. (3d) 555 (C.A.) at para. 60 and 72 [^37]: MDM Plastics Ltd. v. Vincor International Inc., 2015 ONCA 28, [2015] O.J. No. 265 (C.A.) at paras. 25 and 33; Marché d'Alimentation Denis Thériault Ltée. v. Giant Tiger Stores Ltd., supra, at para. 12 [^38]: Wellwood v. Ontario, supra, at para. 62 [^39]: Hamilton (City) v. Svedas Koyanagi Architects Inc., 2010 ONCA 887, [2010] O.J. No. 5572, 104 O.R. (3d) 689 (C.A.) at para. 37 [^40]: MDM Plastics Ltd. v. Vincor International Inc., supra, at paras. 16, 32-35, 39; H.B. Fuller Company v. Rogers, supra, at paras. 38-39 [^41]: Aguas v. Rivard Estate, 2011 ONCA 494, [2011] O.J. No. 3108 (C.A.) at para. 18-19; MDM Plastics Ltd. v. Vincor International Inc., supra, at paras. 34-35; H.B. Fuller Company v. Rogers, supra, at para. 42 [^42]: Dang v. Nguyen, 2014 ONSC 7150, [2014] O.J. No. 5880 (Div. Ct.) at paras. 19 and 21. [^43]: Plante v. Industrial Alliance Life Insurance Company, 2003 64295 (ON SC), [2003] O.J. No. 3034, 66 O.R. (3d) 74 (SCJ- master) at para. 19 [^44]: Plante v. Industrial Alliance Life Insurance Company, supra, para. 21(b) [^45]: Homelife Realty Services Inc. v. Homelife Performance Realty, 2005 O.J. No. 2330 (S.C.J.) at para. 11 [^46]: Plante v. Industrial Alliance Life Insurance Company, supra, para. 19 [^47]: Plante v. Industrial Alliance Life Insurance Company, supra, para. 21(c) [^48]: Plante v. Industrial Alliance Life Insurance Company, supra, para. 27; Homelife Realty, supra, at para. 11 [^49]: Homelife Realty, supra at para. 11 [^50]: Limitations Act, 2002, S.O. 2002, c. 24, Sched. B [^51]: Joseph v. Paramount Canada’s Wonderland, (2008), 2008 ONCA 469, 90 O.R. (3d) 401 (C.A.) at para. 25. [^52]: Joseph v. Paramount Canada’s Wonderland, supra at paras. 13 and 27. [^53]: Pepper v. Zellers Inc., 2006 42355 (ON CA), [2006] O.J. No. 5042, 83 O.R. (3d) 648 (C.A.) at para. 18; Wong v. Adler, 2004 8228 (ON SC), [2004] O.J. No. 1575, 70 O.R. (3d) 460 (S.C.J. – master), affirmed (2005), 2004 73251 (ON SCDC), 76 O.R. (3d) 237 (Div. Ct.) [^54]: Wakelin v. Gourley, 2005 23123 (ON SC), [2005] O.J. No. 2746 (SCJ – Master) at para. 14, affirmed [2006] O.J. No. 1442 (Div. Ct.) [^55]: Wakelin v. Gourley, supra, at para. 15 [^56]: Garber v. Falconeri, 2013 ONSC 570, [2013] O.J. No. 484 (SCJ – Master) at paras. 25 to 28. [^57]: In Colin v. Tan, 2015 ONSC 5126, Master Hawkins was of the view that rights crystallize when the motion record is served. In my view that is too onerous. The notice of motion is the first step in the process of obtaining leave to add the party. On the other hand simply advising a party that a motion will be made or even obtaining a motion date, would not constitute such sufficient step toward obtaining leave so as to crystallize the rights of the parties. [^58]: Even if I were to consider May 7, 2015, the date that Mr. Bogue sent Mr. Warne the email as the crystallization date, that email related only to reopening the case against Dineen and seeking a refund of retainer from Warne. There was no mention made in the May 7 email of any other claims against Warne and the May 7 date would be applicable only to the claim for return of retainer. [^59]: Rule 16.06(2) states that service of a document by mail is effective on the fifth day after the document is mailed, but two more days must be added pursuant to rule 3.01(1)(b) which provides that where a period of seven days or less is prescribed, holidays shall not be counted. Under rule 1.03 a “holiday” includes any Saturday or Sunday. [^60]: Nicolardi v. Daley, [2003] O.J. No. 1303 (S.C.J. – Master) at para. 15