Chapdelaine v. Smith, 2015 ONSC 792

BARRIE COURT FILE NO.: 11-0725SR

DATE: 20150203

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Francois Luc Chapdelaine, Plaintiff

AND:

Ian Jeffrey Smith aka Ian Jeffery Smith, and Jennifer Lee Smith, Defendants

BEFORE: THE HON. MR. JUSTICE G.M. MULLIGAN

COUNSEL: O. Bremer, Counsel for the Plaintiff

J. Murphy, Counsel for the Defendants

HEARD: January 28, 2015

ENDORSEMENT

[1] This matter proceeded by way of a Status Hearing as a result of a notice sent by the court, June 5, 2014. The defendants submit that the plaintiff’s claim should be dismissed based on the plaintiff’s failure to place this matter on the trial list within two years after the defence was filed. The plaintiff opposes the relief sought and submits that in the alternative, the matter should proceed in accordance with a timetable agreed to by counsel or established by the court.

[2] The following timelines will provide background for the discussion that follows. The plaintiff commenced an action under the Simplified Rules claiming the repayment of $50,000 from the defendants with respect to a failed business venture. The Statement of Claim was issued August 5, 2011, and amended January 12, 2012. A Statement of Defence was served on February 8, 2012, and the plaintiff’s reply was served March 21, 2012. No steps were taken thereafter until the Status Notice was sent over two years later on June 5, 2014. A Status Hearing Motion originally scheduled for October 22, 2014 was adjourned to January 28, 2015, on consent.

[3] The plaintiff’s affidavit is brief. As to the explanation for the delay, the plaintiff states at paras. 7, 8, and 9:

[7] Following the exchange of pleadings, personal circumstances in my life took my attention away from this case. I left my long-time employment with the Canadian Armed Forces to start new employment. I also moved to a different home.

[8] Finally, I was not certain that I was in a financial position to pursue this matter, as I had three children in college, who I was assisting financially.

[9] These personal issues have now been resolved, particularly as two of my children are just completing their education, and I do wish to proceed with this claim. I do believe that I have a meritorious case and I am willing to abide by any timetable set by this Honourable Court for the completion of whatever steps are necessary in order to set this matter down for trial.

[4] The defendants submit that this matter should be dismissed pursuant to the provisions of Rule 48.14 and the case law as it has developed recently with respect to status hearings. The defendants submit that the plaintiff took no steps with respect to this matter for over two years. There was no affidavit of documents served and no discoveries were scheduled. The defendants submit that the onus is on the plaintiff to explain the delay and further, to demonstrate that there will be no prejudice to the defendant if the matter were allowed to proceed. The defendants note that the plaintiff’s affidavit is brief, does not address the prejudice that might be vested on the defendants, and further that the reasons for the delay do not rise to the level that would warrant the continuation of this action.

[5] I pause to note that Rule 48.14 was revoked and replaced with new Rule 48.14 on January 1, 2015. The registrar can now dismiss an action for delay if the matter has not been set down for trial by the fifth anniversary of the commencement of the action. However, the revised rule provides transitional provisions dealing with rule 48.14(12): “If a Status Hearing in relation to a Status Notice was scheduled but not held before January 1, 2015, this rule, as it read immediately before that date, continues to apply to the matter.” In the case at bar, the Status Hearing was originally scheduled for October 22, 2014, but adjourned on consent of the parties. Therefore, I am satisfied that the transitional rules have application to this case and this matter ought to be decided by Rule 48.14 as it read prior to January 1, 2015.

Analysis

[6] The Ontario Court of Appeal addressed status hearings in 1196158 Ontario Inc. v. 6274013 Canada Ltd., 2012 ONCA 544. As Sharpe J.A. stated for the Court at para. 32:

Even if the plaintiff can prove 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.

[7] In that decision, Sharpe J.A. provided the following overarching principles for consideration in cases such as this. As he stated clearly at para. 35:

It is surely not too much to expect a party to either set a matter down for trial within two years of the close of pleadings, or be able to offer a reasonable explanation for why that is not possible to do so.

[8] The Court of Appeal considered the matter further in Faris v. Eftimovski, 2013 ONCA 360. As Tulloch J.A. stated for the Court at para. 41:

The onus placed on the plaintiff under rule 48.14(13), therefore, is mandated not only by the plain wording of the rule, but also by the greater severity of the plaintiff’s delinquency in pursuing its claim.

[9] These cases and the principles enunciated by the Court of Appeal were applied by the Divisional Court in Deveratt Professional Corp. v. Canpages Inc., 2013 ONSC 6954. Justice J. MacKinnon upheld the decision of the Master dismissing an action for delay at a status hearing. At para. 17, Justice MacKinnon agreed with the proposition set out in para. 8 of Saini v. Sun Life, 2013 ONSC 4463, which stated:

[8] That said, it is now necessary to approach a status hearing under rule 48.14(8) with the attitude that “the initiating litigant generally suffers the consequences of a dilatory regard for the pace of litigation”. The thrust of the recent case law from the Court of Appeal is that the judge or master presiding at a status hearing is not to aim at fixing a tardy action, but at dismissing it, unless there is cogent evidence in the record establishing a reason not to do so. [Citation omitted.]

[10] The comments of Quinn J. in Sepehr Industrial Mineral Exports Co. v. Alternative Marketing Bridge Enterprises Inc. (2007), 2007 23175 (ON SC), 86 O.R. (3d) 550 at para. 21, and quoted by Sharpe J. in 1196158 at para. 38 bear repeating:

Legal proceedings are not to be undertaken lightly. Plaintiffs have a responsibility to prosecute their actions diligently and in accordance with the Rules of Civil Procedure. Our legal system, sagging as it is, under the weight of a heavy caseload, should not lightly tolerate anything short of that diligence.

Conclusion

[11] A Statement of Defence was filed in 2012. After more than two years of inactivity, the court issued a Status Notice in June of 2014. Still, it was not until just before the actual hearing on January 28, 2015, that the plaintiff delivered his affidavit. In my view, the reasons offered in the plaintiff’s affidavit do not rise to the level warranting a continuation of this action. There is nothing in the affidavit to indicate that the plaintiff turned his mind to this action or took any steps to advance the action, let alone set the matter down for trial. At no time did the plaintiff request the indulgence of the defendants or take any steps whatsoever until the Status Notice was issued.

[12] The plaintiff’s action is dismissed.

Costs

[13] This is a simplified procedure matter. Counsel are encouraged to settle the issue of costs. However, if no agreement on costs is arrived at, I will receive brief written submissions not exceeding two pages from the defendants within twenty days of today’s date, and reply submissions from the plaintiff within ten days thereafter.

MULLIGAN J.

Date: February 3, 2015