CITATION: Robilliard v. St. Thomas (City) Police Services, 2016 ONSC 1531
COURT FILE NO.: 1867-10
DATE: 20160307
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Jesse Allen Robilliard
Plaintiff
– and –
St. Thomas (City) Police Services Board, Detective Constable Geoff Gosse, London (City) Police Services Board, Sergeant Chris Perrin, Constable Dan Ainsworth, Constable Tanya Calvert, Constable Jeff Deleew, Constable Chris Bailey, Constable Marc Vaughan, John Does(s) and Jane Doe(s)
Defendants
Sabrina Seibel, for the plaintiff
Shawn Macdonald, for the defendants
HEARD: January 18, 2016
leitch j.
[1] The plaintiff seeks an order for leave to restore this matter to the trial list.
Background Facts
[2] In this action, the plaintiff alleges that he was wrongfully arrested and imprisoned as a result of a negligent investigation by one or more of the defendants.
[3] A Notice of Action was issued on July 27, 2010 and the Statement of Claim was issued on August 26, 2010.
[4] A status hearing was held on January 30, 2013. A timetable was consented to by the parties which required examinations for discovery of the plaintiff and the defendants no later than August 31, 2013 and any motions for undertakings and/or refusals to be completed no later than January 15, 2014.
[5] Examinations for Discovery of two of the defendants took place on May 22, 2013.
[6] The plaintiff was examined for discovery on May 24, 2013.
[7] The trial record was passed on January 27, 2014 by the plaintiff’s former counsel, who advised the plaintiff he would no longer be representing him.
[8] The action was spoken to in an assignment court on May 23, 2014 and adjourned to July 18, 2014 to allow the plaintiff time to obtain new counsel.
[9] On June 10, 2014 the plaintiff signed a Notice of Intention to act in person allegedly on the instruction of former counsel, which was served on counsel for the defendants on June 11, 2014.
[10] Mr. Thompson, counsel for the defendants, deposed in his affidavit sworn in response to this motion that he was contacted by the plaintiff on June 10, 2014 and then by the plaintiff’s friend on July 17, 2014 and advised that the plaintiff would not be able to attend the assignment court on July 18, 2014, but his friend would attend on his behalf. Mr. Thompson advised the plaintiff’s friend that he would be taking the position that the matter should be struck from the trial list. Indeed, that was the outcome in the assignment court. Mr. Thompson sent correspondence to the plaintiff July 18, 2014 indicating that the matter had been struck from the list “since there was no prospect of it being scheduled for trial in the circumstances”.
[11] Mr. Thompson sent follow-up correspondence to the plaintiff in September and November 2014.
[12] According to the affidavit filed in support of this motion, the plaintiff made numerous attempts to obtain new counsel. He ultimately contacted Mr. Jones, the current counsel of record, in December 2014. Mr. Jones spoke with Mr. Thompson on December 23, 2014 and thereafter took steps to review the plaintiff’s file.
[13] On April 16, 2015 the plaintiff served a Notice of Appointment of Mr. Jones as his new counsel.
[14] In April 2015 the “lawyer with day-to-day carriage of this matter” on behalf of the plaintiff advised that the plaintiff would be bringing a motion to have this matter restored to the trial list but she was then engaged in trial matters.
[15] In May and August 2015 Mr. Thompson wrote to Mr. Jones requesting information respecting the plaintiff’s intentions in relation to this action.
[16] In early August 2015 plaintiff’s counsel advised that they were in the process of preparing motion materials for a motion to restore this matter to the trial list.
[17] This motion was brought in September 2015.
Relevant Rules
[18] Rule 1.04 provides that all of the rules are to be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merit.
[19] Rule 48.11 provides that where an action is struck off a trial list by a judge it shall not thereafter be placed on any trial list except with leave of a judge.
[20] Rule 48.14, which was applicable at the time this action was listed for trial in January 2014 and subsequently struck from the trial list on July 18, 2014 provided as follows:
(2) Unless the court orders otherwise, if an action that was placed on a trial list and was subsequently struck off is not restored to a trial list within 180 days after being struck off, the registrar shall serve on the parties a status notice in Form 48C.2 that the action will be dismissed for delay unless, within 90 days after service of the notice, the action is restored to a trial list or terminated, or documents are filed in accordance with subrule (10).
[21] Rule 48.14 was amended effective January 1, 2015 to provide as follows:
(1) Unless the court orders otherwise, the registrar shall dismiss an action for delay in either of the following circumstances, subject to rules (4) to (8):
…2. The action was struck off a trial list and has not been restored to a trial list or otherwise terminated by any means by the later of the second anniversary of being struck off and January 1, 2017.
[22] As the defendants note, under the prior rule, the plaintiff should have taken steps to restore the action to the trial list within 180 days after it being struck off failing which the plaintiff would have received a notice from the registrar and the action would have been dismissed for delay unless within 90 days of receiving the notice the action was restored to the trial list.
[23] The plaintiff was not served with a status notice under the “old” r. 48.14. Under the new r. 48.14, there is a pending dismissal of this action on January 1, 2017. The action having been struck off the trial list it must be restored to the trial list by the later of the second anniversary of being struck off (January 18, 2016) and January 1, 2017.
Relevant Jurisprudence
[24] In Nissar v. Toronto Transit Commission, 2013 ONCA 361, 115 O.R. (3d) 713, at para. 31, the Court of Appeal helpfully stated that on a motion to restore an action to the trial list, a plaintiff bears the burden of demonstrating that there is an acceptable explanation for the delay in the litigation and that if the action was allowed to proceed, the defendant would suffer no non-compensable prejudice. The Court of Appeal made it clear that this test is conjunctive.
[25] The Nissar test was restated in Carioca’s Import and Export Inc. v. Canadian Pacific Railway Ltd. 2015 ONCA 592, 128 O.R. (3d) 143, at para. 43 as the appropriate test where “a refusal to restore an action to the trial list would result in its dismissal”.
[26] It was noted in Carioca’s that the relevant events in that case took place prior to the amendments to the r. 48.14 which came into force on January 1, 2015.
[27] The court held that it was appropriate to apply the Nissar test in Carioca’s where the parties had received notice of an impending administrative dismissal because the action had not been restored to the trial list within 180 days of being struck. At para. 43, the court made clear that if a refusal to restore an action to the trial list will result in its dismissal, the Nissar test will apply and explained that “this is because the inevitable result of the failure to restore the action to the trial list would be dismissal”.
[28] The court cautioned at para. 5 that it was an error in legal principle in applying the Nissar test if the delay issue was decided “based on an allocation of blame for delay rather than whether there was a reasonable explanation for it” and if the prejudice issue was decided “by a mechanical application of a presumption based on the passage of time, rather than considering prejudice of a question of fact in the particular circumstances” of the case.
[29] However, where there is no impending dismissal the Nissar test is not applicable as the court made clear in Carioca’s at para. 42:
The decision whether to restore an action to the trial list is discretionary and where there is no impending dismissal, the question on a r. 48.11 motion is simply whether the plaintiff has shown that the action is ready for trial within the meaning of r. 48.01, that is, whether it is at a stage where pre-trial and trial dates can be scheduled. If restoration to the trial list is premature the court should consider the imposition of a timetable or terms.
The Position of the Parties on this Motion
[30] The plaintiff emphasizes that on the third attendance in the assignment court on July 2014 when the matter was struck from the list, he had no counsel and there had been a nine-month delay before he was able to retain new counsel.
[31] The plaintiff also emphasizes that he is ready for trial and had offered to have the matter spoken to in the fall assignment courts and set for trial in January 2016.
[32] The defendants assert that the old rule r. 48.14 should apply on this motion. The defendants acknowledge that if the new rule applies, the plaintiff has two years to restore the matter to the trial list and in this case, those efforts must be made before January 1, 2017.
Analysis and Disposition
[33] In my view the old r. 48.14 is not applicable. It is significant that the plaintiff was not served with a status notice under that rule.
[34] There is no impending dismissal of the action. Therefore, consistent with the guidance in Carioca’s, the Nissar test is not applicable. As explained in Carioca’s, the principles relating to dismissal for delay apply in circumstances where there is impending dismissal. I do not see these circumstances as analogous to those on a motion to dismiss for delay because there is no impending dismissal of this action until January 1, 2017 if it were restored to the trial list.
[35] Therefore, the issue is, to use the words of the court in Carioca’s, whether the plaintiff has shown that the action is ready for trial within the meaning of r. 48.01, in which case the action would be restored to the trial list and if such restoration is premature then a timetable or terms will be imposed.
[36] In my view, this matter is ready for trial. Discoveries have been completed. Indeed, it appears that the only outstanding issue is in relation to the satisfaction of undertakings, which is in progress. I note that there has been no motion made by the defendants in relation to the satisfaction of those undertakings and it is my understanding that there are only two undertakings that are outstanding. I also note that if the matter is restored to the trial list the fact that the action is placed on a trial list does not relieve the plaintiff from complying with undertakings given on his examination for discovery as set out in r. 48.04(2)(a).
[37] In any event, if the Nissar test informed the consideration of the issues on this motion, the plaintiff was in the difficult position of retaining new counsel after the matter had been placed on the trial list. I acknowledge there is no affidavit from the plaintiff to explain the delay from June 2014 to April 2015, as the defendants emphasize. However, it is clear that Mr. Jones, the potential new counsel, required a reasonable time period to review the file from December 2014 to April 2015. The motion was not brought promptly after April 2015 and there was a delay until August 2015 when it was confirmed that this motion would be brought, which it was. There is a reasonable explanation for the delay. Further I am satisfied that the defendants will not suffer any non-compensable prejudice if the action is allowed to proceed particularly considering the nature of the action and the fact that there are notes and witness statements available to the defendants and the delay is relatively modest. In all of the circumstances I find it appropriate that the matter be restored to the trial list, as it is now ready for trial.
Costs
[38] At the hearing of the motion, counsel helpfully agreed that the appropriate award of costs to the successful party is in the amount of $3,000, all inclusive. Costs of $3,000 are therefore awarded to the plaintiff payable by the defendants.
“Justice L. C. Leitch”
Justice L. C. Leitch
Released: March 7, 2016
CITATION: Robilliard v. St. Thomas (City) Police Services, 2016 ONSC 1531
COURT FILE NO.: 1867-10
DATE: 20160307
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Jesse Allen Robilliard
Plaintiff
– and –
St. Thomas (City) Police Services Board, Detective Constable Geoff Gosse, London (City) Police Services Board, Sergeant Chris Perrin, Constable Dan Ainsworth, Constable Tanya Calvert, Constable Jeff Deleew, Constable Chris Bailey, Constable Marc Vaughan, John Does(s) and Jane Doe(s)
Defendants
REASONS FOR decision
LEITCH J.
Released: March 7, 2016