Court File and Parties

COURT FILE NO.: CV-07-335564

DATE: February 10, 2016

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: POMBO, Plaintiff/Responding Party

AND:

CANAC KITCHENS et al., Defendants/Moving Parties

BEFORE: MASTER RONNA M. BROTT

COUNSEL: S. Nasseri, For the Plaintiff P. Boshyk, for the Defendants

HEARD: December 18, 2015

ENDORSEMENT

[1] The plaintiff, Carlos Pombo, (“the plaintiff”) is a former employee of the defendant Canac Kitchens, a Division of Kohler Ltd. (“Canac”). He was employed as a maintenance supervisor from March 19, 1985 until his dismissal for cause on or about September 15, 2005 following an investigation conducted by the defendant, which determined that the plaintiff had removed property and had diverted business to a competing business in which he held an interest.

[2] The plaintiff Sandra Izarnotegui takes no position on this motion as her claims are to be dismissed.

CHRONOLOGY

[3] The within action was commenced on June 28, 2007. The defendants filed a Notice of Intent to Defend on July 19, 2007 and their Statement of Defence was filed on January 11, 2008. Examinations for discovery of the defendants were concluded on September 10, 2009.

[4] On or about January 18, 2010 the parties received a Status Notice stating that the action would be dismissed for delay within 90 days unless the plaintiff set the action down for trial, the action was terminated, or documents were filed in accordance with subrule 48.14(10).

[5] On April 12, 2010 Master Muir presided at a Status Hearing wherein the defendants waived their right to examine the plaintiffs, a timetable was set and the action was ordered to be set down for trial by January 18, 2011 failing which the action would be dismissed. The trial record was filed by plaintiff’s counsel on January 17, 2011. The action was struck from the trial list on or about February 29, 2012.

[6] On August 28, 2012 the solicitors for the plaintiffs removed themselves as solicitors of record. The Affidavit of Service indicates that the plaintiff was served with the Removal Order on September 4, 2012 and it was filed with the court on January 29, 2013.

[7] The defendants now bring this motion to dismiss the plaintiff’s action on the following basis:

(a) Rule 15.04(8) – Failure of the plaintiff to appoint counsel;

(b) Rule 60.12 – Failure of the plaintiff to comply with an interlocutory Order;

(c) Rule 24.01(1)(e) – Failure of the plaintiff to move for leave to restore the action to the trial list within 30 days after it was struck off.

Rule 15.04(8) – Failure to appoint counsel

[8] This rule provides that a party who is not a corporation shall, within 30 days of being served with an order removing their lawyer from the record:

(a) appoint a new lawyer by serving a notice under rule 15.03(2); or

(b) serve a notice of intention to act in person under rule 15.03(3).

[9] Pursuant to Rule 15.04(9) the court may dismiss a party’s proceeding if the party does not take one of the steps prescribed by rule 15.04(8) within 30 days.

[10] The former solicitors for the plaintiff removed themselves by Order of August 28, 2012 and served the plaintiff with the Order on September 4, 2012. Since then and up until this motion record was served on or about October 1, 2015, the solicitors for the defendants had not heard from the plaintiff.

[11] The plaintiff filed an Affidavit in response to this motion. His evidence is that after he was terminated by Canac, he hired Mr. Azevedo, a lawyer who could communicate with him in Spanish, as his English was very limited. Although he communicated orally with his lawyer/lawyer’s office in Spanish, the lawyer’s letters were written in English.

[12] By correspondence dated October 6, 2011, Mr. Azevedo advised Mr. Pombo that their firm would no longer be litigating wrongful dismissal actions. Counsel instructed the plaintiff to retain new counsel.

[13] The plaintiff’s next contact with Mr. Azevedo was on April 10, 2012 and following their conversation, Mr. Pombo ‘understood that his case was over.” By correspondence dated April 19, 2012 to Mr. Pombo, Mr. Azevedo confirmed their conversation as follows:

“You were under the impression that your claim had ended and you had lost.

Please note that your claim has not ended, that in fact it was listed for trial in order to protect your interests.

Please note that if you do nothing and fail to address your claim you could end up being liable for costs which could be substantial.

In accordance with my letter to you of October 6, 2011, I strongly recommend that you immediately retain a new lawyer.

I reiterate that we will take no further steps to protect your interests in this matter.

[14] Mr. Pombo’s evidence is that even following receipt of Mr. Azevedo’s April 12, 2012 letter, he understood that the case was over and he had lost. He states that had he known the case was not lost in 2012, he would have wanted to continue with the litigation. Mr. Pombo denies receipt in September 2012 of the Order removing Mr. Azevedo and his firm as solicitors of record. The plaintiff did not appoint or consult counsel until 2015 when he was served with this motion record.

[15] Based on a strict reading of Rule 15.04(8), there is no question that the plaintiff has failed to comply with its requirements. Even when the plaintiff was made aware first in October 2011 and then again in April 2012, that he must retain new counsel as Mr. Azevedo would no longer be acting for him, he did nothing. Plaintiff’s counsel asserts that Mr. Pombo’s English is poor and as the former lawyer’s letters were written in English, he misunderstood his lawyer’s advice. However, he failed to inquire from someone who might have been able to assist. In fact, he waited from October 2011 until April 2012 following receipt of the first letter to even contact his lawyer, and then from April 2012 until October 2015, he took no steps to make any inquiries until he was served with this motion. It seems strange that his lawyer’s letters and phone calls spurred no activity while this motion record did.

[16] My review of the case history indicates that counsel for the plaintiff on this motion never delivered a Notice of Intention to Act for the plaintiff. Although their responding materials on this motion were accepted for filing, the plaintiff is still listed as a self-represented party. Basically then, at this stage, there continues to be non-compliance with Rule 15.04(8).

[17] In Ford v Thorold (City), [2006] OJ No. 2839 (ONSC) Justice Quinn held that where a plaintiff shows no active interest in moving their action forward, the court may appropriately exercise its discretion and dismiss the action pursuant to rule 15.04(9)(a).

[18] Based on Rule 15 alone, I find that from the time Mr. Pombo was served with the Removal Order in September 2012 up until he was served with this motion in October 2015, the plaintiff showed no interest in this litigation. Because his response to the motion is indicative of some, albeit minimal, desire to carry on with the litigation, and to have counsel to assist him, I am unprepared to dismiss Mr. Pombo’s action based solely on Rule 15.

Rule 60.12 – Failure to comply with an interlocutory order

[19] Rule 60.12 provides that where a party fails to comply with an interlocutory order, the court may, in addition to any other sanction provided by the rules, dismiss the party’s proceeding. Here, there plaintiff failed to comply with the Status Hearing Order of 2010 and the Removal Order in 2012. In Vacca v Banks, [2005] OJ No. 147 (ONSC (Div Ct)) Ferrier, J. opined that our Rules of Civil Procedure should “not be rendered nugatory by failure of a court to impose appropriate sanctions in cases of breaches of orders”. Such breaches lead to an increased expense of the administration of justice.

[20] Plaintiff’s former counsel did set the action down for trial in accordance with the order of Master Muir. Although Mr. Pombo breached the Removal Order, once this motion record was served, he responded quickly. To dismiss the action due to a breach of that Removal Order would at this time be an extreme remedy. Certainly the plaintiff could compensate the defendants for the delay by payment of costs. Accordingly the defendants’ motion to dismiss Mr. Pombo’s claims pursuant to Rule 60.12 is dismissed.

Rule 24.01 – Failure of the plaintiffs to move for leave to restore the action to the trial list

[21] Rule 24.01(1)(e) provides that a defendant may move to have an action dismissed for delay where the plaintiff has failed to move for leave to restore an action that has been struck off the trial list, within thirty days after the action was struck off. This action was struck off the trial list on February 29, 2012.

[22] The Court of Appeal in Nissar v Toronto Transit Commission, 2013 ONCA 361 held that the test for dismissal for delay is conjunctive. Adopting its’ own the test in Faris v Eftimovski, 2013 ONCA 360, to provide consistency under Rule 48.14(13) and 24.01 the Court of Appeal held:

(a) The plaintiff must explain the period of delay in the litigation; and

(b) satisfy the court that it would not be unfairly prejudicial for the defendant to have the action restored to the trial list.

Delay

[23] From the time that the examinations for discovery of the defendants were conducted in September 2009, the plaintiff did little to move the action forward. Although former counsel for the plaintiff did set the action down for trial on January 17, 2011, there has been absolutely no activity on the file since then. In October 2011 Mr. Pombo was advised by his lawyer to seek new counsel. By the time Mr. Pombo contacted his former lawyer in April 2012, the action had already been struck from the list. (It was struck on February 29, 2012). In August 2012 his former solicitor removed himself as solicitor of record. The plaintiff failed to take steps to retain new counsel, to file a Notice of Intention to Act in Person, and/or to move this action forward. The plaintiff relies on his language barrier to explain some inactivity yet from the time that the action was commenced in 2007 until October 2011, he seemed to manage despite these barriers. Furthermore, when in October 2015 he was served with this motion record, he knew to take some action.

[24] In my view there is a paucity of evidence from the plaintiff to explain and/or account for the delay. The plaintiff has failed to provide a satisfactory explanation for the delays in this litigation.

Prejudice

[25] Prior to the plaintiff’s termination, Canac arranged for Mr. Austin, an employee of the parent company Kohler, to conduct an investigation on behalf of the defendants. The investigation was carried out from July 13-15, 2005. The results of that investigation lead to Mr. Pombo’s termination in September 2005. Mr. Austin is also the individual who was examined for discovery on behalf of the defendants in September 2009. All of the individuals who were interviewed by Mr. Austin for his investigation are no longer employed with Canac. Mr. Austin himself resigned his position from Kohler in April 2011 and the evidence is that no one from Kohler has seen or talked to him since his departure. Canac ceased operations in Canada in June 2008. The defendants maintain that despite significant effort, Mr. Austin cannot be located, and even if he could be, his recollection of events will have faded significantly as more than six years have elapsed since he was examined for discovery.

[26] The plaintiff submits that because Affidavits of Documents have been exchanged and all documents have been preserved, there is a good likelihood of a fair trial. The evidence from the plaintiff’s solicitor’s law clerk states that she was able to obtain two telephone numbers for Mr. Austin. It is submitted by the plaintiff that Mr. Austin will be able to refresh his memory with the use of the report which was prepared by him.

[27] Further, the solicitor for the plaintiff relies on Mr. Pombo’s language barriers to not only explain the delay, but also to explain his misunderstanding of Mr. Austin’s investigation, going to the merits of the his claims.

[28] The defendants take issue with the law clerk’s evidence. There is no confirmation that the phone numbers belong to the Mr. Austin involved in this proceeding nor that the voicemail belongs to him. Mr. Austin did not return any of the messages left on the voicemail.

[29] The plaintiff was terminated for cause in 2005 based on Mr. Austin’s investigation. The oral discovery evidence clearly identifies gaps in Mr. Austin’s memories of the circumstances leading to Mr. Pombo’s termination. As his memory had faded when he was examined for discovery four years after his investigation, certainly his memories will be even more faded ten plus years after the incident. This is particularly critical given that at trial, it will rest squarely on Canac to prove that the plaintiff’s dismissal for cause was justified.

[30] I find that there is real and non-compensable prejudice to the defendants. Even if Mr. Austin is located, he will likely be unable to recall the particulars of the events leading to the plaintiff’s just cause dismissal in any detail. The incident and the investigation occurred in the summer and autumn of 2005, more than ten years ago. As stated in Wellwood v Ontario Provincial Police, 2010 ONCA 386, 102 O.R. (3d) 355: “since the memories of witnesses fade over time the passage of an inordinate length of time after a cause of action arises or after an applicable limitation period expires gives rise to trial fairness concerns.”

[31] It would be unfair to force the defendants to continue with this action. The motion to dismiss the plaintiff Carlos Pombo’s claims pursuant to rule 24.01 is granted.

COSTS

[32] As agreed to by counsel, in the event that the parties are unable to reach agreement on the issue of costs, they may contact my Assistant Trial Coordinator, Christine Meditskos, to arrange an in-person attendance to argue the issue of costs.

(Original Signed)__________

MASTER RONNA M. BROTT

Date: February 10, 2016.