SUPERIOR COURT OF JUSTICE – ONTARIO

FANT v. CATERPILLAR TUNNELING CANADA CORP.

CV-12-450270

2015 ONSC 6889

HEARD: November 6, 2015

COUNSEL: David Silver, counsel to the lawyer for the plaintiff

Jonathan Cocker for the defendants

ENDORSEMENT

Master R.A. Muir –

[1] This endorsement is in relation to a contested status hearing at which the plaintiff is required to show cause why his action should not be dismissed for delay pursuant to former Rule 48.14(13) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”).

[2] This is a wrongful dismissal action. The plaintiff’s employment with the Caterpillar defendants was terminated on January 9, 2012 after nearly 32 years of service. The defendants allege that the plaintiff was terminated for cause. The defendants allege that the plaintiff was involved in the theft of certain materials belonging to the defendants. The plaintiff denies the defendants’ allegations.

[3] This status hearing was first scheduled for October 6, 2014. It was adjourned on consent several times thereafter. It was finally argued before me on November 6, 2015.

[4] Rule 48.14(12) provides that where a status hearing is scheduled but not held prior January 1, 2015, the provisions of the former Rule shall nevertheless apply.

[5] The former Rule 48.14(13) provided as follows:

48.14(13) At the status hearing, the plaintiff shall show cause why the action should not be dismissed for delay and,

(a) if the presiding judge or case management master is satisfied that the action should proceed, the judge or case management master may,

(i) set time periods for the completion of the remaining steps necessary to have the action placed on or restored to a trial list and order that it be placed on or restored to a trial list within a specified time,

(ii) adjourn the status hearing to a specified date on such terms as are just, or

(iii) if the action is an action to which Rule 77 may apply under rule 77.02, assign the action for case management under that Rule, subject to the direction of the regional senior judge,

(iv) make such other order as is just; or

(b) 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.

[6] The applicable test to be applied on a contested status hearing is set out in the decision of the Court of Appeal in Khan v. Sun Life Assurance Co. Of Canada, 2011 ONCA 650 at paragraph 1:

[T]he appellant [plaintiff] bore the burden of demonstrating that there was an acceptable explanation for the involved litigation delay and that, if the action were allowed to proceed, the respondent [defendant] would suffer no non-compensable prejudice.

[7] The test is conjunctive. The presiding judge or case management master may still dismiss the plaintiff’s action even in situations where the delay has been satisfactorily explained or the plaintiff has demonstrated that the defendant would not be prejudiced. In 1196158 Ontario Inc. v. 6274013 Canada Ltd., 2012 ONCA 544, the Court of Appeal described the Khan test as follows at paragraph 32:

The test is conjunctive, not disjunctive. Even if the plaintiff can provide a satisfactory explanation for the delay, the action will be dismissed if there would be prejudice to the defendant. And if the plaintiff is not able to provide a satisfactory explanation for the delay, it is still open to the judge to dismiss the action, even if there is no proof of actual prejudice to the defendant.

[8] Rule 48.14(13)(b) provides that the presiding judicial officer at a status hearing may dismiss the action for delay. The Court of Appeal has held that it is “open to the judge to dismiss the action” [emphasis added]. The court’s decision is therefore a discretionary one. In applying the test, the court will almost invariably engage in a weighing of all relevant factors in order to reach a just result. See Kara v. Arnold, 2014 ONCA 871 at paragraph 13.

[9] This approach has recently been approved by the Court of Appeal in its decision in H.B. Fuller Company v. Rogers (Rogers Law Office), 2015 ONCA 173. The court emphasized that all of the circumstances of the case must be considered in order to arrive at a just result. See Fuller at paragraph 23. However, our system of civil justice favours the determination of disputes on their merits. See Fuller at paragraph 26.

[10] Although a plaintiff bears the primary responsibility for the progress of an action, a defendant’s conduct may also be a relevant consideration at a status hearing or on a motion to set aside a dismissal order. See Fuller at paragraph 23.

[11] Finally, the Divisional Court has recently held that the amendments to Rule 48.14 as of January 1, 2015 are an appropriate consideration for the court when conducting a contextual analysis. Rule 48.14 now provides that an action will be dismissed by the court five years after it is commenced, unless it has been set down for trial or otherwise disposed of within that time period. See Klaczkowski v. Blackmont Capital Inc., 2015 ONSC 1650 (Div Ct) at paragraph 33.

[12] These are the factors and principles I have followed and considered in determining the issues before me on this status hearing. Having done so, I have concluded that the plaintiff’s action should be allowed to continue.

[13] With respect to the first part of the test, I am satisfied, on balance, that the plaintiff has provided an acceptable explanation for the litigation delay. This action was started on March 30, 2012, just a few months after the plaintiff was dismissed by the defendants. It appears that the statement of claim was served on the Caterpillar defendants in a timely manner. Those defendants filed their statement of defence on June 19, 2012. The plaintiff provided his lawyers with comments on the defence in September 2012.

[14] It is true that nothing was done to move this matter forward between June 2012 and the date of the status notice, which was issued by the court on June 5, 2014. Two of the defendants were not served with the statement of claim. The plaintiff failed to serve an affidavit of documents. No efforts were made to schedule examinations for discovery.

[15] However, I accept the plaintiff’s explanation for the delay. The plaintiff was absent from Canada for extended periods of time between 2012 and 2015. He was working in remote parts of Turkey, India and Russia and only returned to Canada periodically. He experienced health issues while working abroad. I accept that his absences from Canada made it difficult for him to vigorously pursue this action and instruct his lawyers, although certainly the plaintiff could have done more to pursue this action when he did return to Canada from time to time.

[16] There are some inconsistencies with the plaintiff’s evidence in terms of when he was in Canada and when he was away. However, it is obvious from the evidence that he was frequently out of the country for extended periods of time.

[17] It is also clear from the evidence that at no time did the plaintiff abandon his claim. He was in contact with his lawyers from time to time when possible. He made efforts to retain new counsel and arranged meetings with a view to advancing this action. After the status notice was issued, the plaintiff returned to Canada and retained new counsel. He then delivered a proposed timetable to the defendants’ lawyer. I am satisfied that the plaintiff always intended to pursue this claim.

[18] It is also important to note that the defendants did nothing to advance this claim between June 2012 and June 2014. They have not served an affidavit of documents. It does not appear that the defendants made any effort to contact the plaintiff’s lawyer to inquire about the status of the claim.

[19] As well, I do not find the delay with this action as particularly lengthy in the circumstances. This action was only two years old at the time the status notice was issued. More importantly, the plaintiff’s claim did not arise until he was dismissed on January 9, 2012. Consequently, the limitation period applicable to this claim had expired just a few months before the status notice was issued. The delay with this action is not of the same magnitude as found in a number of the authorities cited by the parties. If the current version of Rule 48.14 applied to this action, it would not be dismissed until March 2017.

[20] The explanation for the delay need not be perfect. It simply needs to be acceptable and I find that it is.

[21] It is important to note that I have carefully considered the defendants’ argument with respect to certain inconsistencies with the plaintiff’s evidence. Initially, the plaintiff blamed his former lawyers for the lack of progress with this action. As this status hearing unfolded, it became clear that the plaintiff’s former lawyers were not at fault. The record is clear that the plaintiff’s former lawyers repeatedly warned the plaintiff of the consequences of not providing instructions and committing himself to advancing this action. I can see nothing blameworthy about the conduct of the plaintiff’s former lawyers. It appears that the plaintiff himself is responsible for the delay with this action. In this respect, the plaintiff’s initial affidavit evidence was misleading at the very least. However, based on the record before the court, I am not prepared to conclude that the plaintiff intended to deliberately mislead the court. It may be that the first affidavit was prepared hastily or that the plaintiff’s recollection was refreshed once he had a chance to fully review his records. There are other plausible explanations for the inaccuracies with the affidavit. I am not prepared to impose the ultimate sanction of a dismissal of the plaintiff’s action solely on the basis of this inaccurate evidence. Of course, the misleading nature of the initial affidavit may be a proper consideration when it comes to the issue of costs.

[22] I am also of the view that the plaintiff has met his onus with respect to prejudice. This is a straightforward wrongful dismissal action. There appear to be three issues. The first is whether the defendants had just cause to dismiss the plaintiff. Was the plaintiff involved with the theft of materials from the defendants? The defendants conducted an investigation at the time. Following that investigation, the plaintiff was dismissed. The results of that investigation are available today. There is no suggestion that any of the work product from the investigation has been destroyed or is no longer available.

[23] If the defendants are unable to establish just cause, two further issues will arise; length of common law notice and mitigation. These are very simple matters. There would appear to be no debate about the plaintiff’s position, length of service, age, salary or any of the other factors usually considered by the court in assessing damages in such actions. It appears from the evidence on this motion that the plaintiff’s mitigation documents are available. The evidence provides a detailed summary of the plaintiff’s efforts to find employment following his dismissal. In my view, the plaintiff has rebutted any presumption of prejudice in the circumstances of this action.

[24] The defendants argued that they will suffer actual prejudice if this matter is allowed to proceed to trial. They submit that certain named witnesses have left their jobs with the defendants and are no longer readily available to give evidence. I do not accept this argument. The defendants’ evidence provides no specifics of their efforts to locate the named individuals. The affidavit filed by the defendants on this status hearing simply contains a bald statement that efforts have been made and the witnesses cannot be located. Moreover, the plaintiff appears to have been able to locate the allegedly missing witnesses by conducting very basic social media searches.

[25] The defendants also argue that they will be prejudiced because the facility at which the defendant worked was sold by the defendants and they no longer have access to the plant in question. Aside from the difficulty I have in understanding the relevance of access to the site to the just cause defence, I note that the defendants have not provided any evidence of attempts to gain permission to access the site. There is no evidence that the defendants have even made a request of the current owner to visit the site in order to collect any necessary evidence, let alone such a request being refused. Furthermore, the facility was sold by the defendants in May 2013, long before there was any notable delay with this action and well before the expiry of the plaintiff’s limitation period. This action was extant with no prospect of it being dismissed when the plant was sold. If access was so important to the defence of this action, the defendants could have recorded the necessary evidence at that time or negotiated future access rights with the purchaser. It appears the defendants did neither.

[26] The defendants also raised the concern of fading memories and the passage of time. I repeat what I said above that I do not find the delay particularly lengthy. If the defendants had agreed to the timetable proposed by the plaintiff in the fall of 2014, this action would have been set down for trial by May 31, 2015. In my view, the defendants will not be prejudiced in their ability to defend this action at trial.

[27] I am therefore not prepared to dismiss the plaintiff’s action. The parties shall confer and attempt to agree on a timetable to govern the remaining steps in this action. If they are unable to agree they shall provide the court with written submissions by November 23, 2015. If the parties are unable to agree on the issue of the costs of this status hearing, they shall provide the court with written submissions also by November 23, 2015.

Master R.A. Muir

DATE: November 9, 2015