Court File and Parties
CITATION: Jadid v. Toronto Transit Commission, 2016 ONSC 1176
COURT FILE NO.: 08-CV-350370
DATE: 20160217
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Maimuna Jadid, Plaintiff/Moving Party
AND:
Toronto Transit Commission and John Doe Driver, Defendants/Responding Parties
BEFORE: S. F. Dunphy J.
COUNSEL: M. Shloznikov, for the Plaintiff/Moving Party
M. Ferreira (not appearing), for the Defendant/Responding Party Toronto Transit Commission
HEARD: February 10, 2016
ENDORSEMENT
[1] It is sometimes suggested that it is better to ask forgiveness than to ask for permission. That kind of locker-room advice was never good advice in a marriage and is not particularly useful in court either.
[2] Four years ago, the plaintiff in this case asked to set aside the Registrar’s order dismissing her action for delay in listing the action for trial and proposed as a condition for the indulgence sought that she would set the matter down for trial within 60 days. B. O’Marra J. granted her request, which was unopposed, and made the order setting aside the dismissal of the claim on the terms requested on February 17, 2012. The plaintiff was given a second chance to shepherd her claim to trial.
[3] I would have expected a display of exemplary diligence on the part of the plaintiff and her lawyer, Mr. Mazin, after this close call. A claim that I am asked to presume was important to her was very nearly lost. If it appeared that the deadline could not be met for unforeseen reasons, a timely application to vary could have been brought. Seeking permission is always better than presuming forgiveness. Unfortunately, the charms of Morpheus proved a more powerful draw than the plaintiff’s intermittent resolve to pursue resolution of her claim.
[4] The matter seems to have been returned for filing somewhere in the postal code of Sleepy Hollow shortly afterwards. There it promptly entered a deep sleep from which it was not disturbed in any material way for more than two full years. Even then it appears to have required a further year of delay before the plaintiff thought to look at the (ignored) order of B. O’Marra J. followed by a further delay of some nine months for the plaintiff and her lawyer to bestir themselves sufficiently to seek to actually address the problem.
[5] In the material before me is not a shadow of an explanation as to why this second-chance lifeline was simply ignored. No material obstacles existed to be overcome; no allegedly obstructive actions of the defendant have been identified. To the contrary, the defendant has acted with great restrain and demonstrated little inclination to hold the plaintiff’s feet harshly to the fire or even to demand minimum standards of diligence. The claim was a simple one that, judging by the settlement offer the plaintiff has decided to include in the material, should likely have been brought under the simplified procedure of Rule 76 in any event.
[6] I have been able to arrive at no explanation save that there was never a bona fide intention of respecting the order and setting this matter down for trial in a timely manner. Whether the plaintiff had no interest in pushing this claim to the point of risking a hearing on the merits – and her commitment if any to the claim is left to pure conjecture on the evidence – or whether her counsel made an economic decision to invest none of the amounts needed to retain experts and prepare for trial matters not. The holes in the record speak volumes.
[7] At what point does the desultory prosecution of an action become so egregious and abusively glacial as to cross the line from merely inexcusable negligence to contempt of an order of the court? In my view, this case has crossed the line to the latter or come so close to it as not to matter. It would be an abuse of process to sanction this blatant disregard of an express order of the court. If the line is not to be drawn here, I can think of no credible place to draw the line and retain any credibility as a court seeking to control the integrity of its own process.
[8] This court is not to be mistaken for a rubber stamp and its orders are not to be treated as mere suggestions to be followed or ignored as the mood or whim may suggest. If a party cares so little for a claim as to fail to advance it diligently or even to make a show of abiding by the orders of the court she has sought, there can be no prejudice in putting an end to the sorry spectacle before it consumes further resources of the court and of the innocent defendant.
[9] I am mindful of the admonitions that the court should be primarily mindful of the rights of the litigants and not be penalized unduly for the conduct of their counsel: Habib v. Mucaj (2012 ONCA 880). That directive is not to be taken as a license to ignore every instance of delay merely because a plaintiff may thereby deprived of a hearing on the merits. Conduct of counsel is seldom far from the list of items contributing to delay in motions under Rule 24 and Rule 48. However, the plaintiff in this case has utterly failed to discharge the burden of explaining (as opposed to merely cataloguing) the delay, has failed to demonstrate that inadvertence rather than indifferent commitment to the case was responsible for missing the deadline, has failed to show diligence in dealing with the action at any stage in the proceeding, but in particular in bringing this motion promptly and has failed to address or discharge the presumption of prejudice the lengthy delay in this case gives rise to.
[10] If our courts have demonstrated some leniency in applying the criteria for setting aside a Registrar’s order dismissing an action for delay, heightened scrutiny is called for when the same plaintiff comes to court a second time seeking to excuse her persistent delay and has the added burden of explaining her failure to abide by an express order of the court she sought. I cannot in good conscience grant the order requested in these circumstances and this notwithstanding the silence of the defendant TTC. This case well warrants the conclusion of Lauwers J.A. in Wallace v. Crate’s Marine Sales Ltd., 2014 ONCA 671 (at para. 22):
“There comes a time, in short, when enough is enough, and the civil justice system will no longer tolerate inordinate and inexplicable delay. A court may then eject the action as an exercise of its inherent jurisdiction, whether or not the relevant rules expressly mandate it. This is such an action.”
[11] While I must not allow the behavior of Mr. Mazin as counsel to distract me from a consideration of the rights of the litigants, it is the litigants (plural) that I must have in mind, not merely the hopes and desires of the plaintiff in isolation. I cannot peer through the veil of solicitor client privilege to determine in what degree fault for this delay must be attributed as between solicitor and client on a motion such as this. I must assume, absent evidence to the contrary, that the solicitor is acting on instructions and keeping his or her client informed of matters as they occur. However, the choice is not necessarily between depriving a client victimized by negligent legal counsel of a hearing and requiring a defendant to proceed to trial despite inordinate delay. If the fault for the delay in this case lies with Mr. Mazin, the plaintiff is not deprived of a remedy but may have to pursue it in a different forum: Marché D'Alimentation Denis Thériault Ltée v. Giant Tiger Stores Limited, 2007 ONCA 695 at para 29.
[12] I am dismissing this motion and staying further proceedings in this action. I shall expand upon my reasons below.
[13] There is one final matter that I am compelled to address here. During the course of argument, Mr. Shloznikov sought to refer to email correspondence about this motion exchanged with counsel for the respondent TTC who had not appeared. He wanted to argue that her non-appearance should nevertheless be construed by me as a form of “de facto” consent by TTC. Consent is a binary matter – counsel either consented or she did not. Under questioning from me, Mr. Shloznikov agreed that counsel for the TTC had not in fact authorized him to consent to the order sought, a fact which the defendant’s refusal to submit to discovery in September absent this order rather amply demonstrated. I made it clear that I would not brook any attempt to attribute “de facto” consent to counsel who was not present in court and who is perfectly well able to distinguish between consent to a motion and not opposing it. Unsworn evidence of negotiations as to the form an order might take if granted does not in any way imply joining in a request that the court grant it. The proposed evidence, apart from being unsworn, would have been utterly non-probative of any issue before me. I declined to accept the tender of the unsworn email evidence and made my ruling against the concept of “de facto” consent quite clear.
[14] At the conclusion of argument, Mr. Shloznikov asked if I would permit him to file additional written argument on the standard to be applied to this motion. As the matter was to be taken under reserve, I saw no reason to decline and agreed that he could file supplementary written argument on that issue if he wished. I was shocked to receive under the guise of written argument later that day an email from him that attached (unsworn) the very email correspondence that I had refused to receive in oral argument only hours earlier tendered in support of the same argument of de facto consent that had also been rejected quite explicitly by me.
[15] Such a deception – for no other description can be applied - is unworthy of a barrister and member of the Law Society of Upper Canada and displayed disrespect to this court. My ruling on the matter was clear and unequivocal and the request for leave to file additional argument made no mention of this surreptitious motive. I am left to conclude that the request to file supplementary written argument was nothing more than a Trojan Horse designed to open an avenue to introduce into a future appeal record unsworn “evidence” that was not filed and had been rejected at the hearing.
[16] The effort was misguided. Should Mr. Shloznikov have wished to refer to such evidence on appeal, if indeed that was his intent, I would happily have agreed to set forth my ruling on admissibility in my endorsement (as I have now done) so as to permit him to apply for leave to refer to it in the Court of Appeal. I ruled the material inadmissible and non-probative. The Court of Appeal may have differing views and his right to test that question is undoubted.
[17] If counsel disagrees with a ruling made by me, my feelings are not hurt. Judges are made of sterner stuff. All judges understand that counsel have a job to do on behalf of their clients and must do so resolutely. Avenues to question rulings of any judge are well established and available for that very purpose. Honest disagreement with a ruling is never to be held against anyone. While I was of course shocked by this behaviour and felt compelled to remark upon it here, I have not allowed it to influence my consideration of the plaintiff’s motion. I have assumed this to be a one-off but regrettable lapse of judgment due to an excess of zeal that shall not be repeated. I did not review the email correspondence.
[18] I consider the page turned on that incident.
Facts
[19] The plaintiff brought this motion to vary the order of B. O’Marra J. dated February 17, 2012. She evidently has no qualms in accepting the benefit of paragraph 1 of that order that set aside the order dismissing her claim for delay but seeks effectively to remove the condition to that indulgence contained in paragraph 2 by extending the time for setting this action down for trial to an unspecified future date instead of the date (now almost four years in the past) as ordered.
[20] The plaintiff filed no evidence of her own. Instead, an affidavit of her lawyer, Mr. Gary Mazin, was tendered. This affidavit appeared to contain all of his correspondence on the file and was intended to “explain” the delay. It has instead done little more than reinforce the impression given of a claim that has been prosecuted with neither conviction nor diligence.
[21] Apart from describing who sent what to whom and when, Mr. Mazin’s affidavit contains but one sentence relevant to the motion (in paragraph 94): “It has always been mine and the Plaintiff’s intention to proceed with this action and with this motion”. There follows a further opinion that there is no prejudice to the Defendant by reason of all of the documentation produced to date.
[22] This action arises from an accident that occurred on March 8, 2006 – just short of ten years ago. The plaintiff ran to catch a TTC bus at the Downsview Station while carrying some bags. The doors were closing. Nevertheless, she tried to board. She was caught in the closing doors and subsequently fell backwards when the doors opened again to release her. She was able to break her fall and did not hit her head. Although she made no complaint of injury at the time, she says that her injuries became manifest shortly thereafter.
[23] Mr. Mazin was retained on April 4, 2006 and promptly sent notification of his retainer to the TTC claims department. A Statutory Accident Benefits claim was processed, resulting in a settlement of that claim on June 1, 2007 for a not inconsiderable sum of money.
[24] Mr. Mazin’s materials disclose no further steps taken until two days prior to the expiry of the limitation period when the Statement of Claim was issued claiming damages for more severe injuries. The plaintiff agreed to defer demanding a Statement of Defence as the TTC adjusters requested copies of medical files for the purpose of reviewing this additional claim. These reports were sought and delivered at a leisurely pace over the next year.
[25] After having taken time to review the various medical and police reports produced by the plaintiff in late 2008 and early 2009, the TTC wrote to Mr. Mazin on April 15, 2009 delivering its statement of defence, jury notice and affidavit of documents (with documents attached). The cover letter, produced by Mr. Mazin, made it perfectly clear that the TTC would not under any circumstances contemplate paying any money on the claim. The TTC asked him to “proceed quickly and get a 5 day trial date”, proclaiming that the defendant was “very anxious to try this claim”.
[26] Such statements of eagerness to proceed to trial coming from a defendant ought to have been as music to the ears of a serious plaintiff anxious for the chance to vindicate her position before the courts. If it was music to Mr. Mazin’s ears, the tune sadly seems to have been mistaken for a lullaby.
[27] The next step in any civil procedure textbook would have been for the plaintiff to catch up to the defendant by preparing her own affidavit of documents so as to be ready to initiate or at least complete discoveries and set the matter down for trial without delay. Mr. Mazin does not appear to have done anything further on the file for more than a year beyond a short exchange of correspondence complaining of the hard-line position on settlement taken by the TTC.
[28] On November 2, 2010, Mr. Mazin delivered a Notice of Examination returnable April 14, 2011. He had not at this point delivered his own affidavit of documents and thus had no right to initiate examinations for discovery without consent. It was now approaching three years since the plaintiff had begun the action and approaching the fifth anniversary of the accident itself.
[29] The TTC responded on November 3, 2010 with its own notice of examination and reminded Mr. Mazin that it would not allow him to proceed as intended on April 14, 2011 unless the plaintiff’s affidavit of documents and production of documents were received at least 90 days before the scheduled discovery. There was plenty of time left to satisfy this very basic request that ought to have gone without saying.
[30] Mr. Mazin’s response to this quite moderate request was to file a motion seeking to be removed from the record on the basis he had lost contact with his client. He apparently had enough contact with his client to attempt to initiate discovery only a few days earlier but not enough contact to satisfy his obligation under the Rules to deliver an affidavit of documents. The motion was returnable on January 21, 2011. The plaintiff appeared in person at the hearing of the motion and Master Hawkins endorsed the record that the motion was withdrawn, Mr. Mazin having re-established communication with his client.
[31] Unfortunately, neither zeal nor diligence was a product of this reunion. It is not clear that anything was done to prepare for the scheduled discoveries until early April. No request to delay was made – this was the first instance of preferring to seek forgiveness before asking for permission.
[32] The discoveries did not proceed in April 2011 as originally scheduled. Mr. Mazin’s affidavit was unable to shed much light on why. I have concluded from the attachments to his affidavit that the TTC declined to proceed because the plaintiff had made late and incomplete documentary disclosure on the eve of the examination. I cannot fault the defendant for that.
[33] A status notice was issued by the Registrar a few days later on April 26, 2011 in the usual course. The status notice gave the plaintiff a deadline of 90 days to set the matter down for trial or request a status hearing. This ought not to have posed a significant problem to a diligent litigant. Neither option ought to have taxed the plaintiff.
[34] The Rules did not contemplate the third self-help option that the plaintiff appears to have found more appealing. Here was the second instance appearing to actually plan to ask for forgiveness instead of permission. No extension of time was sought via a status hearing. Instead, discoveries were re-scheduled for August 16, 2011 (outside of the 90 day window) and no order to extend the time was sought. The mind boggles.
[35] Of course that which was bound to happen did happen. In the absence of a request for status hearing, the Registrar duly issued an order dismissing the action for delay on August 9, 2011. This can have come as a surprise to nobody. The plaintiff’s attempt to get the discoveries completed on August 16, 2011 then foundered when the defendant TTC insisted on its (legitimate) right to examine first. The dispute was in any event a trivial one since there is no suggestion that either party needed as much as a day to perform this ritual. If Mr. Mazin disagreed with the TTC, he could have found the means to swallow his pride and get the job done. It was not to be.
[36] The plaintiff then moved to set aside the Registrar’s order by a motion dated September 1, 2011. In this instance at least admirable celerity was shown. The motion to set aside the Registrar’s order was swiftly filed and was initially scheduled for November 10, 2011. It was then adjourned at the request of the plaintiff until February 17, 2012. The reasons for that adjournment request are not disclosed.
[37] From August until February, there was plenty of time to get busy and complete discoveries. The opportunity was squandered. Tellingly, the affidavit is silent as to what the plaintiff’s plan for getting the matter set down for trial swiftly was. Subsequent events suggest quite strongly that there was none. The motion to set aside the Registrar’s order was made in the absence of any concrete discovery timetable or plan. Despite this, only 60 days was requested and no attempt either to complete discoveries or to finalize a discovery timetable was undertaken – at least none that have left enough of a trace in Mr. Mazin’s file to be disclosed in his affidavit.
[38] On February 17, 2012, the matter came on, unopposed, before B. O’Marra J. whose endorsement reads: “Defendants not opposed to this motion – application allowed – Order to go as per draft provided”.
[39] The draft order attached – being the order in the form requested by the plaintiff – simply set aside the Registrar’s order in paragraph 1 and gave the plaintiff a deadline of 60 days from the date of the order to set the matter down for trial in the second paragraph. It being a leap year, that deadline was thus April 17, 2012.
[40] This order was never actually issued and entered. A handwritten notation – apparently that of the Registrar – quite reasonably asked the plaintiff to fill in the blanks left on the draft order left at the desk to be entered (the date and judge’s name having both been left blank on the draft order submitted and there was no back page).
[41] Inexplicably the plaintiff seems simply to have downed tools at this point. The order was never entered (the plaintiff apparently has now done so in December 2015 as part of bringing this motion). Mr. Mazin’s affidavit passes this entire era over in silence.
[42] What signs of diligence – indeed, what signs of life – can be detected on a review of the file between February 17 and April 17 2012 when the order should have been in the process of being complied with? This is, after all, the time span the plaintiff had asked for and was granted to set the action down for trial. Amazingly, Mr. Mazin’s affidavit is completely silent as to what explanation can be offered for the hibernation of this file for those sixty crucial days. This lacuna bears repeating: no explanation at all for missing the self-imposed deadline in the order of B. O’Marra J. is offered on the record before me. Even after the sixty days had come and gone, the state of hibernation for the next two years was essentially uninterrupted.
[43] Indeed, hibernation would appear as a state of giddy hyperactivity beside the state of frozen in-animation displayed over the ensuing two years.
[44] I have examined Mr. Mazin’s list of activity on the file. Paragraph 94 of his affidavit lists the various medical reports produced to the defendant over the years. Almost all of the reports date from 2008 and prior. A notable absence from the list is any reference to an expert report. If Mr. Mazin wished to proceed to trial on a personal injury claim of this sort, he would almost certainly have had to invest in an expert report to make his case. The complete lack of activity in getting ready to set the matter down for trial since between 2012 and 2014 coupled with the lack of any sign of an expert report having been commissioned or delivered leaves me with very legitimate doubts as to the credibility of the ritual statement in his affidavit that he always intended to proceed with this action. I see no signs that either the plaintiff or Mr. Mazin were prepared to incur the expenses necessary to get this matter ready for trial. I conclude that there was no such conviction or intent on the part of either.
[45] As for the statement in paragraph 94 that Mr. Mazin and the plaintiff always intended to bring this motion, I have but one comment: what was stopping you?
[46] The first sign of spring appears on May 25, 2014 when Mr. Mazin asked for the TTC’s affidavit of documents despite the fact that it had been sitting unexamined in his file for FIVE YEARS. He was promptly rebuked on this score by the TTC’s counsel and asked to “please take a look at your file”. This advice to embrace diligence went unheeded. Had he looked at this file, this motion might at least have been brought 18 months or even two years ago. Perfunctory letters and the simulacrum of activity seeming are to some a simpler course than picking up the file and actually reviewing it to determine what needs doing.
[47] During this period of near-total hibernation of the plaintiff, the defendant had assigned new counsel to the file. Ms. Ferreira tried to advance matters somewhat and did not at first appear to have the possessed enough background of the Registrar’s dismissal order and B. O’Marra J.’s order to understand the limbo into which the plaintiff had plunged matters. She took the initiative to set up the discovery of the plaintiff on June 20, 2014. The plaintiff attended and for a brief time at least there was some activity on the file if only that of the plaintiff responding to the requests of the defendant’s new lawyer.
[48] In August 2014 Mr. Mazin attempted to schedule discoveries of the defendant(s) for March, 2015. These efforts were ultimately unsuccessful given the confusion of TTC’s new counsel as to the status of the action that Mr. Mazin was unable to resolve. Mr. Mazin drafted (but did not proceed with) a motion to compel the defendant to appear for discovery.
[49] Unable to determine the status of matters, Ms. Ferreira wrote Mr. Mazin on February 13, 2015 asking for a copy of the issued and entered order restoring the action following the Registrar’s dismissal. Mr. Mazin’s clerk located the endorsement of B. O’Marra J. and the un-entered draft order and sent both of these to the defendant on February 24, 2015 indicating that Mr. Mazin would be in touch. If the plaintiff had somehow forgotten about B. O’Marra J.’s order, this exchange should certainly have gotten the attention of all but the most deliberately blind to the problem that needed attention. If Mr. Mazin got in touch with Ms. Ferreira to discuss the matter, he had made no mention of it.
[50] On September 30, 2015, the defendant declined to permit Mr. Mazzin to conduct an examination for discovery of its representative due to the unresolved issue of the status of the action. How this can come as a surprise to Mr. Mazin in light of his having sent the file with the un-issued and ignored order to the defendant in February is a mystery. The penny finally dropped. Mr. Mazin contacted his insurer and began to take steps with insurance counsel to bring this motion to attempt to rectify matters.
Issues
[51] This motion raises the following three issues:
a. What standard ought to be applied to this motion to vary an order setting aside a Registrar’s order of dismissal?
b. Is this an appropriate case to vary the order as requested?
c. If not, is a stay of proceedings under s. 106 of the Courts of Justice Act appropriate?
Analysis and Discussion
(i) What is the standard to be applied?
[52] The plaintiff submits that the standard I should apply to this order is the standard applied in moving to set aside a Registrar’s order of dismissal. The four criteria (the “Reid criteria”) described in Reid v. Dow Corning Corp., [2001] O.J. No. 2365, 11 C.P.C. (5th) 80 (S.C.J.), at para. 41, revd on other grounds [2002] O.J. No. 3414, 48 C.P.C. (5th) 93 (Div. Ct.) have been applied by the Court of Appeal in a number of cases including Habib (supra) and Marché D'Alimentation Denis Thériault Ltée v. Giant Tiger Stores Limited, 2007 ONCA 695 (at para 12):
“(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.”
[53] While the four Reid factors are clearly the starting point for considering an appeal of a Registrar’s order of dismissal, this is not such a case. That was what the motion before B. O’Marra J. on February 17, 2012 was. What is before me now is a motion to vary the order that set aside the Registrar’s order. While the criteria applicable to the initial order are certainly relevant and may be turned to by way of analogy, they do not fully address the additional factor of a moving party who has been to the well for relief once and returns a second time. The Reid criteria are the minimum starting point, but more is required.
[54] I am persuaded by the reasoning of the Sharpe J.A. in 1196158 Ontario Inc. v. 6274013 Canada Limited, 2012 ONCA 544. In that case, the plaintiff had failed to progress the action beyond the pleadings stage (as is the case here) when the status notice was issued. At the status hearing conducted in January 2010 conditions were imposed including that discoveries be completed and the matter be set down for trial by June 2011. When this was not done, the matter came on for a new status hearing in September 2011 where the presiding judge dismissed the action for delay.
[55] The parallels between 1196158 Ontario Inc. (supra) and the present case are strong ones. The motions judge had dismissed the claim noting the failure of the plaintiff to comply with the “lifeline’ it had been given at the first status hearing, its ignoring of the timetable set and for the failure to show any meaningful progress. With minor variations, those same factors are present here.
[56] Sharpe J. A. upheld the dismissal of the claim. In motions of this sort, he found:
“[17] The civil justice system aims to resolve disputes fairly, on the merits and in a timely and efficient manner. The Rules of Civil Procedure provide that the rules are to be "liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits": rule 1.04(1).
[18] Achieving that goal in cases involving dismissal for delay requires a careful balance of two fundamental principles. The first is that civil actions should, if possible, be decided on their merits and procedural rules should be interpreted accordingly. The second is that the procedural rules that aim to resolve disputes in a timely and efficient manner can only achieve their goal if they are respected and enforced.”
[57] That in a nutshell is the balancing that I must perform in this case.
[58] While the defendant in 1196158 Ontario Inc. (supra) had filed no affidavit alleging actual prejudice, this was no bar to dismissing the action since (at para. 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.”
[59] Failure to enforce timelines frustrates the legitimate expectations of the parties and allowing a stale claim to proceed can work unfairness even if actual prejudice is not demonstrated. No evidence is needed to establish that memories fade over time and that the significance of documents may become faded as well. Excessive delay leaves a litigant hanging in limbo for years at a time with a claim hanging over their head. In the words of Sharpe J.A. “If flexibility is permitted to descend into toleration of laxness, fairness itself will be frustrated” (1196158, supra, at para. 42). I have also examined the case of Turczinski v. Fernandes, 2013 ONCA 643 in which the Court of Appeal upheld a dismissal for delay on similar grounds to those present here and the similar decision of Lauwers J.A. in Wallace v. Crate’s Marine Sales Ltd. (supra).
[60] In view of the foregoing, it is my view that I am to apply the four Reid criteria subject to the following additional comments.
[61] Firstly, the totality of delay in prosecuting the action both before the first lifeline granted on February 17, 2012 and since should be separately considered and weighed. The order of February 17, 2012 did not absolve the plaintiff of prior delay. The explanation for the total delay and the explanation for failing to meet the timelines established by way of a lifeline in the order of February 17, 2012 must be separately considered.
[62] Secondly, there is no absolute priority to be given to any single one of the four criterion over the others – the test is conjunctive and failure to satisfy any of the criteria may, in appropriate circumstances, be decisive. By the same token, the review of the facts is contextual and should not be driven by overweighting one factor to the exclusion of the others – it is not an all or nothing analysis. A failing grade in one test does not end the matter.
[63] Thirdly, the onus is not upon the defendant to establish prejudice on this motion and, indeed, prejudice may be inferred from the passage of time.
[64] Finally, the fact that this is a second lifeline being sought justifies a heightened level of scrutiny upon each of the four factors as well as a consideration of what explanation, if any, is offered for having effectively ignored the first lifeline.
(ii) Ought the order to vary be granted?
[65] I turn now to a consideration of the four Reid factors and in light of the four additional factors listed above.
[66] The first Reid factor is explanation for the delay. In this context, there are two delays to be explained. The first is the overall delay – the fact that it has taken the plaintiff almost ten years (and counting) since the accident and eight years since the claim was commenced to bring this case on to the trial list must be looked at. The second is the delay in complying with the order of February 17, 2012. I consider each separately.
[67] As for the overall delay in the action, the chronology above speaks for itself. The plaintiff – whose action this is – has not been able to leap over the match-box sized hurdle of completing discoveries in eight years of litigation of what can only be described as a very simple claim of low complexity. I attach very little weight to the minor level of activity shown by the plaintiff in 2014 in response to the defendant’s new counsel conducting an examination for discovery before she understood the limbo in which the action stood by reason of non-compliance with the order of B. O’Marra J. The plaintiff is expected to act as the quarterback of the claim he or she commences. The actions of the defendant – who has not set the matter down for trial – are not counted in the plaintiff’s column as positive steps taken towards preparing for trial.
[68] In fact, the plaintiff has not even managed to move to the point of closing pleadings. The plaintiff sued “John Doe Driver”. Of course John Doe Driver has neither been served nor appeared. There is no record of the plaintiff even asking the TTC for the name of the driver before starting the claim. The TTC provided the driver’s name (Mr. Diodati) – and a copy of his report of the incident – when it served its Statement of Defence in April 2009. The plaintiff did not attempt to serve him then or amend the style of cause. So, no. The plaintiff has not even moved as far as closing pleadings. Eight years after the accident, “John Doe Driver” remains un-served nor does it appear the claim has been discontinued. Of course, the limitation period has long since elapsed, but the failure to clean up even that detail speaks volumes.
[69] A review of the chronology contained in Mr. Mazin’s affidavit contains not a breath of explanation for any of the large periods of hibernation. He simply contented himself with describing the periods of delay by attaching what appears to be each and every piece of incoming or outgoing correspondence from the file. The story this correspondence tells does not explain the delay – it condemns it. Unanswered at every step is the question: why? What possible reason explains why nothing was done? The catch-all phrase “inadvertence” – not even offered here – explains nothing.
[70] The evidence shows that not a single step was taken by the plaintiff during the sixty days she was granted by the order of B. O’Marra J. to advance her case. Not one. In fact not one step in the proceeding was taken by the plaintiff for more than two years. There is no explanation of why nothing happened. Confessing to inaction is not the same as explaining it.
[71] The plaintiff’s factum argues that because some steps have been taken to advance the plaintiff’s claim over eight years, the delay “was neither intentional nor was the action abandoned”. The plaintiff’s burden goes beyond offering a bare conclusion premised on no relevant facts.
[72] I conclude that the plaintiff has given me no reasonable explanation for either the overall delay in prosecuting the action or the delay in either setting the matter down for trial by April 17, 2012 as required by the order of B. O’Marra J. or seeking a timely variation of it. The first Reid criterion has not been satisfied.
[73] The second Reid criterion is that of inadvertence in missing the relevant deadline. The deadline, it must be recalled, was April 17, 2012. The record before me is totally silent on this time period. I have no reason to believe the plaintiff ever expected to meet the deadline. As noted, there is no evidence of a plan or timetable during this period (or for the next two or more years). There is no suggestion that the defendant thwarted the plaintiff’s attempts at diligence. There is, in a word, nothing.
[74] The evidence should have shown me that the plaintiff was busy completing the steps necessary to set the matter down for trial and was derailed by some unanticipated obstacle. There should have been a pre-existing game plan that was inadvertently thwarted. If it couldn’t be followed, there should be reasons why this was so that could have been explained.
[75] On the record before me, I cannot find that the plaintiff ever intended to set this matter down for trial by April 17, 2012. I do not reach that conclusion lightly. The complete absence of forward motion in that time frame persuades me that there never was a plan to accomplish much in the first place. While I have no positive evidence of an intention to abandon the claim, the evidence establishes little more than intermittent interest in advancing the claim and none in obtaining an actual hearing. I have already commented on the telling lack of any real commitment to doing more than going through the motions on this file – no expert was hired and the plaintiff’s activities on the file can almost without exception be attributed to reactions to demands of the defendant. The record is one of a plaintiff treading water, reacting to events and seeking (occasionally) to appear active. This is not the record of a plaintiff evincing a genuine desire to have her day in court.
[76] The plaintiff suggests that failure to see to issuing and entering the formal order somehow explains the delay. The suggestion is absurd. The order was effective when made: Rule 59.01. The failure of the plaintiff to discharge the obligation to have the order issued and entered cannot be turned on its head into an excuse for failing to obey it. The task of correcting the error would at all events have occupied less than a minute of a clerk’s time – hardly an excuse for paralysis of the entire litigation process. The only reason the order was not issued and entered the first time was the excessive carelessness with which it was tendered to the office: lacking a back page, lacking the date, lacking the judge’s name or indeed just about any attempt to comply with the formal requirements.
[77] A second reason offered for failing to set the matter down for trial was that discoveries were not completed! That amounts to no more than saying that the order was not complied with because it was not complied with. The plaintiff can’t plead her own inaction as a basis for excusing her inaction.
[78] I find the second Reid criterion has not been satisfied. There is no reasonable or satisfactory explanation for failing to meet the deadline imposed by B. O’Marra J.
[79] The third Reid criterion is diligence in bringing this motion for relief. The plaintiff argues that Mr. Mazin only recently (September, 2015) realized that the order had not been taken out. That alleged epiphany – incredible as it sounds – is irrelevant. It is also not what Mr. Mazin’s affidavit says. His affidavit does claim that he “always” intended to bring this motion, but contains not a word of explanation of what prevented him from doing so.
[80] The order was effective when made. The issue the plaintiff needed to address with this motion for was not about taking the order out but about dealing with the plaintiff’s lack of compliance with it.
[81] Why was this motion not brought before April 17, 2012? There is no record of Mr. Mazin making any effort to get the matter set down during those sixty days or at any time before September 2015. If there were an obstacle to compliance, a motion could have been brought to deal with it. It is as if the plaintiff never intended to meet the deadline.
[82] Even the recent delay is inexplicable. Mr. Mazin sent a copy of the (unissued) order and endorsement to the defendant on February 24, 2015. Nevertheless, the penny somehow failed to drop for nine more months.
[83] I cannot find that this motion was brought promptly or with diligence. It was not and the failure remains unexplained.
[84] The fourth Reid criterion is that of prejudice. The plaintiff alleges there is no prejudice and points to the lack of evidence from the defendant. I am prepared to infer from the passive status of the defendant with respect to this motion that they have no decisive evidence of fatal prejudice to offer. The record before me establishes that the TTC driver and the supervisor originally offered for discovery have now retired although the driver appears to be willing to make himself available.
[85] The burden is not upon the defendant to show prejudice. Prejudice may be inferred from the passage of time and this is a case where I have no difficulty in doing so, even if that inference does not go so far as to establish fatal prejudice. The occurrence report filed by the driver the day after the incident is the only evidence the defendant has and will likely ever have to counter whatever the plaintiff’s version of events when she alleges negligence of the defendant. That report is terse – it is highly doubtful that it will be able reliably to be supplemented with revived actual memory this many years after the fact. The ability of this or any defendant similarly situate to defend a claim this old and of this nature on the issue of liability has certainly been compromised. Once sharp and persuasive evidence may lose a considerable amount of its punch when reduced to an antiseptic reading of an occurrence report ten or more years after the fact without the ability to contribute any meaningful additional details. Such prejudice is progressive and almost impossible to quantify. I conclude from the totality of the evidence before me that the defendant’s right to a fair hearing has been impaired by the passage of time through the inaction of the plaintiff.
[86] Furthermore, prejudice is a criterion that captures more than just the mechanical ability of a party to put evidence into the trial hopper for assessment. The burden of dealing with litigation for so many years is a form of prejudice in and of itself. Defendants have a right to receive a decision in a reasonable time frame or be left in peace. The right to pursue a claim is not an absolute – it must be tempered with the right of the defendant unwillingly called to account by a plaintiff to have the claim diligently managed through the litigation process. This defendant has done nothing to hinder or delay the plaintiff and it is the plaintiff who bears the primary responsibility of managing this litigation through to trial: Wallace v. Crate’s Marine Sales Ltd. (supra) at para. 18. The plaintiff’s shortcomings in advancing this case have all been of her own devising.
[87] I conclude that there is non-compensable prejudice to the plaintiff that can be attributed to the delay overall and the delay since April 17, 2012. The magnitude of the prejudice is difficult to measure, but there can be no doubt that there is material prejudice present in this case.
[88] I have therefore concluded that none of the Reid factors have been satisfied by the plaintiff in this case, still less the additional considerations applicable where a second lifeline is sought. The Reid criteria are not to be mechanically applied and a contextual approach is required: Scaini v. Prochnicki (2007), 2007 ONCA 63, 85 O.R. (3d) 179, [2007] O.J. No. 299 (C.A.). However, zero for four is a hard score to overcome no matter how much context is examined. Should I nevertheless ignore the plaintiff’s conduct and condone this conduct?
[89] The plaintiff urges that I must attach great weight to the risk of an innocent plaintiff being deprived of a hearing on the merits due to the faults of her counsel. I am of course concerned by the risk of visiting the consequences of a solicitor’s fault on the client. On the other hand, this consideration is almost always present where the court is asked to exercise its role of policing undue delay in the conduct of civil litigation. It is a consideration, and a serious consideration. However, it is a consideration that must be weighed in the balance against the values of preserving the integrity of the civil litigation system and the protecting the rights of innocent litigants in the manner described by Sharpe J.A. in 1196158 Ontario Inc. (supra) and Marché D’Alimimentation (supra). The plaintiff’s desire to continue with the case (which I am prepared to assume notwithstanding the lack of actual evidence) does not operate as a veto over the court’s ability to control its process and police delay. If indeed she has not contributed to the delay (and I cannot judge what has occurred behind the veil of confidentiality), she may well have other remedies available to her.
[90] If indeed I am to attribute all fault to the solicitor and none to the client (and I cannot so conclude), there are a number of parallels between this case and that of Marché D'Alimentation Denis Thériault Ltée v. Giant Tiger Stores Limited, (supra). Counsel in the Marché D'Alimentation case had apparently determined to take no further steps. Counsel in this case managed substantially the same feat, although I have no insights into his actual subjective intentions at the time beyond noting the fact of his aborted attempt to get off the record the year before and the lack of any evidence of his investing in positive actions such as retaining an expert. I adopt the conclusion of Shape J.A in Marché D'Alimentation (at para. 41):
[41] I conclude that the Master's analysis is appropriate because it takes account of important principles and values of the civil justice system. The solicitor's behaviour resulted in an excessive delay. Delays of this kind are inimical to the important goal of timely justice. The legal system should not condone the solicitor's behaviour as to do so would fail to provide appropriate incentives to those engaged in the justice system and would risk harming the integrity and repute of the administration of justice. Reinstating the action at this point would undermine the finality principle while refusing [to] reinstate the action does not interfere with the need to ensure adequate remedies.
[91] It is a grave error for a litigant to assume that court orders can be ignored as if they were minor speed bumps. The plaintiff has failed to satisfy me on any of the Reid criteria that I ought to exercise my discretion in her favour to revive an action that she and her counsel have shown such indifference to over the past years. The delay in this case has been extreme, the explanations non-existent and perfunctory. I have formed the view that the plaintiff never had a bona fide intention to adhere to the deadline ordered and only intermittent interest in advancing – or appearing to advance - this case. The plaintiff’s situation is aggravated by the fact that this is the second time the court’s discretion is invoked to revive this action, the first lifeline having been utterly squandered.
[92] Fairness and justice to all who use the system, including for the defendant who has had this case hanging over its head for so many years, are not advanced by tolerating such extremes of indolence and disregarding of court orders as have been demonstrated here.
i. S. 106 Courts of Justice Act
[93] The plaintiff was ordered to set down within 60 days of that order when the court agreed to set aside the Registrar’s dismissal order. The order was not complied with and there was no bona fide attempt to do so. I have dismissed the plaintiff’s motion and declined to vary that term of the order. The plaintiff has not complied with the condition subsequent imposed by the order and should not be entitled to its benefit in consequence.
[94] I have considered whether I should exercise my discretion to vary the order of B. O’Marra J. by removing the benefit conferred by the first paragraph thereof nunc pro tunc in light of the unexplained and unexcused failure to comply with the condition imposed in the second. While I have the jurisdiction to do so and would exercise that jurisdiction if need be, I think proceeding under s. 106 of the Courts of Justice Act to be the more direct and simpler path. Nunc pro tunc orders ought to be rare and I seen no need for it here with s. 106 available. The end result is the same.
[95] Section 106 of the Courts of Justice Act permits me to stay any action on my own motion on such terms as are just. This is but an instance of the inherent jurisdiction of this court to control its process and prevent the abuse of its process through undue delay: Marché D'Alimentation, (supra), at para. 24. I take this step not at the urging of the defendant but to preserve the integrity of the litigation process that I am charged to supervise.
[96] The defendant has placed the matter in the court’s hands without formally taking a position. The lack of a consent is clear and means at the very least that the defendant is seeking this court’s view of the matter rather than simply consenting. However, this motion puts at issue the integrity of this court’s process and its outcome does not depend upon the actions or circumstances of this or that individual defendant. The litigation aggression or conversely passivity of a given defendant is not a criterion to be weighed in determining whether delay has been excessive or inordinate or whether any of the Reid criteria have been satisfied on the evidence. The consequences of deliberate non-compliance with a court order coupled with excessive delay in dealing with it are the same for all litigants regardless of how aggressive or gun shy the defendant may be in a given case.
[97] It is appropriate in the circumstances for me to stay this action entirely and I am doing so. Anything less would bring the administration of justice into disrepute and signal open season to litigants to abandon any semblance of compliance with time lines in court orders or in the Rules. If the line is to be drawn anywhere, it must be drawn here.
[98] Enough is enough and the defendant has a right to move on. There are a great number of litigants in line who sincerely want and need their day in court. They should not have to wait one day longer in line in a court system encumbered with claims such as this, advanced by parties showing such utter disregard for orders of the court and for the rudimentary principles of diligence. The right to a day in court to resolve a claim must be earned by pursuing it diligently.
Disposition
[99] This motion to vary the order of B. O’Marra J. of February 17, 2012 is dismissed and I hereby order pursuant to s. 106 of the Courts of Justice Act that this action be stayed in light of the failure to comply with paragraph 2 of such order.
[100] As the TTC did not appear on this motion, I have made no order as to costs of the motion itself but I am awarding TTC its costs of the action excluding the motion. If the parties are unable to agree upon the amount, I shall receive written submissions from each as to the amount and scale. These should not exceed five pages excluding the Outline of Costs and be delivered to me within 45 days of the date of release of these reasons.
S. F. Dunphy J.
Date: February 17, 2016