Court File and Parties
Heard: March 10, 2016
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Purchase v. Gaston
BEFORE: Master Joan Haberman
COUNSEL: Hennick, L. for moving party Serpa, T. for responding party
REASONS
Master Haberman:
1On March 10, 2016, I heard and dismissed this motion to set aside the registrar’s order dismissing this action for delay, with reasons to follow.
HOW WE GOT HERE
2The plaintiff is alleged to have been injured in a bicycle/motor vehicle accident on October 10, 2008.
3This action was commenced by statement of claim, issued on September 9, 2010, a month before the expiry of the 2-year limitation. The pleading is of the “boiler plate” variety, so provides no real indication of how it impacted on the plaintiff. According to the claim, he allegedly sustained injuries to most areas of his body and has suffered from a plethora of symptoms since the accident.
4By the end of April 2011, the claim had been served and the action defended. Pursuant to the old Rule 48 regime, the plaintiff had two years from that point to set this action down for trial. Both the case history and the plaintiff’s evidence are silent as to what transpired during that two year period, aside from the court having issued a status notice on April 15, 2013. I infer from the absence of evidence that nothing of note was done to move it forward during this time period. There is no evidence explaining why that was the case.
5On May 27, 2013, more than a month after receipt of the status notice, the plaintiff requested that a status hearing be convened. That event occurred on July 11, 2013, at which time a consent timetable was put in place for the action.
6Pursuant to that timetable, incorporated in Master Graham’s order of July 11, 2013:
Examinations for discovery were to have been completed by December 31, 2013;
Undertakings were to have been fulfilled by March 31, 2014;
Mediation was to have been booked by November 30, 2013 and completed by April 1, 2014;
The action was to have been set down for trial by April 15, 2014.
7Although a good start was made towards compliance with this order, none of the steps referred to was actually completed within the time lines ordered, or in fact, at all.
8Though examinations for discovery were commenced on December 16, 2013, so within the stipulated deadline, the event was not completed. At page 229 of the plaintiff’s transcript, Mr. Hennick makes that point. On page 231, defence counsel states that he was unable to complete the discovery as he did not receive responses to his letters back to 2011. In the context of what preceded this statement, it appears he had been seeking better disclosure.
9The examination ended with a discussion about the motion that the defence felt compelled to bring. They ended the day by stating that the discovery was adjourned, presumably to allow a return visit once productions were complete. There was no objection to this characterization of how the day ended.
10Despite this very clear statement and what came before it, in her affidavit submitted in support of this motion, in paragraph 22 of her affidavit, Norma Barron swore that examinations for discovery had been completed. Ms. Barron is a lawyer at the firm representing the plaintiff but it is clear she was not familiar with the file and had not fully informed herself fully as to what had transpired before her involvement.
11A review of the transcript indicates that by the time the first day of the plaintiff’s discovery had ended, he had given 14 undertakings; had taken 11 questions under advisement; and had refused to answer 16 questions. Although Ms. Barron maintains that all undertakings have been answered, the defence refutes that this is the case. Mediation was never scheduled, let alone completed and the action was not set down for trial in accordance with Master Graham’s order. Accordingly the action was dismissed for delay on May 6, 2014.
12The notice of motion to set aside the dismissal order was not served and filed until September 2015, and the matter was not heard until February 9, 2015, 9 months post-dismissal. At that time, the parties again reached a consensus, which was incorporated in Master Abrams’ order of that date. It provided as follows:
The dismissal order was set aside;
Unless the parties otherwise agreed, all undertakings were to be answered and all documentary productions were to be completed by April 2, 2015;
Mediation was to be booked by February 23, 2015; and
The action was to be set down for trial by September 10, 2015.
13There is no evidence before the court explaining why it took so long to get the above motion before the court.
14The only evidence I was taken to that demonstrated any effort made by the plaintiff to move this action forward between the timetable ordered by Master Graham in July 2013 and the dismissal order in May 2015 were a few request letters, but they not written until January and February 2015. This was well beyond the expiry of the deadline stipulated by Master Graham’s order. It was also very near the deadline set by Master Abrams’ order for compliance with undertakings, such that that deadline, too, was in jeopardy. Both orders were based on timetables the plaintiff had agreed to.
15From the exhibits to the Barron affidavit, it appears that responses to some undertakings came trickling in through February and March 2015, a full year past the deadline agreed to and incorporated in Master Graham’s order.
16For a second time, the plaintiff missed the deadline by which the action was to have been set down for trial. As a result, the action was dismissed for delay a second time on October 15, 2015. That is the order that I was asked to set aside.
THE EVIDENCE
Delay
17The evidentiary record provided by the plaintiff for this motion was problematic, something I pointed out to counsel at the outset. Despite the gravity of the motion, the supporting affidavit runs for a little over four pages, though the action was commenced in 2010 and has now been dismissed for delay twice. Further, Ms. Barron cites Mr. Hennick, counsel who appeared on the motion, as her source with respect to some highly significant and somewhat contentious information.
18The plaintiff filed no factum or brief of authorities, but counsel handed up three older but seminal cases during the hearing, apparently unaware of more recent developments in case law. Accordingly, I pointed out to plaintiff’s counsel that Law Pro usually appoints counsel to deal with actions that have already been dismissed.
19While it is not my place to recommend strategy to counsel, I expected that, having heard these comments, he would understand that he should seek an adjournment, one which I would likely have granted, subject to hearing the defence submissions, and on ordering the plaintiff to pay costs thrown away. However, no adjournment was sought and counsel maintained that he was following instructions from senior counsel. We therefore proceeded.
20There is no evidence at all on the record before me to explain what, if anything, was done by the plaintiff to move this action forward before Master Graham’s order of July 2013, and if nothing was done, why was that he case.
21There is also no evidence before the court to explain why all that was done in compliance with that order was commencement of discoveries. Although the onus is on the plaintiff in this motion, he has filed no evidence explaining:
why those discoveries were not completed;
whether plaintiff’s counsel ever provided their responses regarding the myriad of under advisements given, though it was obviously of concern to defence counsel; or
why the mediation was never booked.
22There is also no evidence about why the plaintiff failed to reschedule his discovery after Master Abrams’ order and why he waited until only a few months before the deadline for compliance with undertakings had expired before writing to non-parties for the materials he needed for compliance.
23The only evidence in that record that purports to explain any portion of the delay is found at paragraph 19 of Ms. Barron’s affidavit, which reads:
I am advised by Lawson Hennick, an associate lawyer with our office that he and Mr. Yermus have experienced difficulty communicating with the Plaintiff despite leaving telephone messages and writing to him. As such, securing instructions with respect to scheduling mediation and setting this matter down for trial has not been possible. Given these circumstances, this action could not been (sic) set down for trial as we have not been able to confirm instructions with the Plaintiff.
24In view of the long life of this action, the court expects a fairly detailed explanation as to why we are 5 ½ years post issuance of the claim and discoveries have yet to be completed. The record before the court does not come close to providing that level of disclosure.
25The phrase experienced difficulty communicating is a very open-ended one. Over what period of time were telephone messages left and starting when? Many other questions come to mind.
26The only reference at all about when this communication issue arose is found at paragraph 24 of Ms. Barron’s affidavit, where she states that the difficulties arose in advance of the September 10, 2015 set down date. What is also odd about this evidence that Master Abrams’ order is dated February 9, 2015. In that the timetable attached to it was one arrived at on consent, counsel would have had to consult with the plaintiff before agreeing to the various deadlines that they agreed to on his behalf, to ensure they could be met. Pursuant to the order, mediation was to have been booked by February 23, 2015, only two weeks later.
27How is it that counsel were able to locate, brief and take instruction from the plaintiff with respect to agreeing to the new timetable, yet still needed to confirm those instructions immediately after the order was signed? Further, why after only about two weeks were they unable to make contact with him?
28Counsel points to their difficulty (not their ability) in contacting the plaintiff to confirm his instructions as to why they took no further steps. They say they need to confirm his instructions before booking the mediation and setting the action down for trial. Yet, in paragraph 21 of her affidavit, Ms. Barron states:
The Plaintiff and his counsel at all times intended to proceed with this action.
29Insofar as she speaks for the plaintiff, this is hearsay evidence. Of greater concern is that this evidence completely conflicts with what Ms. Barron has already stated at paragraph 19. She cannot begin by saying that counsel could not move forward because they could not reach the plaintiff to confirm his instructions, but end by saying the plaintiff always intended to proceed with this action. If he is currently unavailable to provide instructions, Ms. Barron cannot guess at his current intentions.
30The fact that counsel felt they needed further instructions before booking mediation only two weeks after agreeing to a timetable which incorporated that mandatory step suggests that counsel were aware there was some hesitation or indecision on the plaintiff’s part. The fact that counsel was then unable to confirm those instructions within two weeks of agreeing to this timeframe undermines any suggestion that the plaintiff always intended to proceed with the action.
Prejudice
31It is in the context of dealing with prejudice that counsel revealed their motive for bringing this motion. Though they maintain they cannot communicate with the client, so clearly have no instructions to bring the motion, it seems counsel are now intent on removing themselves from the record. It is their view that they cannot book that motion until they deal with this one.
32In terms of prejudice, Ms. Barron states her belief that there would be none if the action were permitted to continue. She claims that all medical evidence including OHIP records, have been preserved and that affidavits of documents have been exchanged. She adds that discoveries have been completed and that all undertakings have been complied with.
33The evidence demonstrates that most of what she states is not accurate. Discoveries have not been completed, not have all of the undertakings been answered. The transcript of the plaintiff’s discovery evidence demonstrates that productions were not in order, at least at the time of that event. That this is why discoveries were not completed that day. There is no evidence before the court to suggest that a supplementary affidavit of documents have ever been filed.
34There is also a suggestion that the evidence of independent witness, Elicia Bell, has been preserved in the motor vehicle accident report. Ms. Barron states that a full statement was taken from each of the plaintiff and defendant by the investigating officer. There is no information in the motor vehicle accident report regarding Ms. Bell’s whereabouts at the time of the accident, in 2008, almost 8 years ago and though statements were taken from both parties, they are both perfunctory and short on details.
35The OHIP records have only been produced back to May 2006, although, based on the plaintiff’s theory that they need only go back three years pre-accident, what they provided is deficient. As the accident occurred in October 2008, the records should have been produced back to at least October 2005.
36Further, as the 2006 records show pre-existing issues with knee or leg from October 2006, the court would generally allow the defence to go back further than the standard three-year period if there was an overlapping pre-existing injury. For whatever reason, the entries for 2005 have been redacted and not produced. In view of the requests for opinions from Dr. Mah and Dr. Wood regarding the pre-existing issue with the left knee, earlier OHIP records would likely have been ordered by the court if not provided voluntarily.
37What is more problematic is that, from exhibit “H” to Ms. Barron’s affidavit, these two request letters, it appears that the plaintiff’s counsel was not only aware of a previous issue with the plaintiff’s left knee that pre-dated this accident, but that they explored it, received further information about it, but failed to pass it along to defence counsel, such that the latter only learned about it in the context of this motion record.
38On February 3, 2015, Mr. Yermus wrote to Dr. Mah, stating as follows:
We are aware that Mr. Purchase has recently had a procedure on his left knee to repair a torn meniscus. We are also aware that prior to the motor vehicle accident of October 10, 2008 that Mr. Purchase also had issue (sic) with respect to his left knee.
At this time we ask that you provide us with a brief letter, addressing whether you believe that the injuries sustained by Mr. Purchase in the motor vehicle accident caused and or/materially contributed to the damage to his knee, resulting in the recent arthroscopy.
39Dr. Mah’s response came more than a year later. On February 18, 2016, he wrote that he never received payment for his invoice, apparently requested in advance of his report. On March 19, 2015, the report was provided, though the invoice was not yet paid – but a copy of the report is not included in the record and has yet to be produced.
40In their responding affidavit, sworn by Richard Bickford, defence counsel handling this file, he notes that the letter to Dr. Mah was his first notice that the plaintiff had undergone a procedure to repair his left meniscus.
41The plaintiff’s family doctor, Dr. Wood, was sent a letter similar to that provided to Dr. Mah, on January 13, 2015, in which the same information was sought. Though the request was made more than a year ago, no report from Dr. Wood was ever provided to the defendant.
42Mr. Bickford states that his review of the letter to Dr. Mah and Dr. Wood were his first notice that there was a pre-existing injury to the plaintiff’s left knee and that there was now some question of whether the knee injury was even related to this accident. He has not been provided with any report that opines as to the causation between the torn meniscus and the accident. As matters stand, the defendant’s ability to access OHIP records before 2005 is now compromised because they were unaware of the pre-existing issues.
43Mr. Bickford also notes that he has yet to receive compliance with all undertakings and a proper affidavit of documents. Records from some of the plaintiff’s former employers are still missing and, to the extent that he now says one or more of these non-parties are no longer in operation, there is no schedule “C” to his affidavit of documents setting this out.
44Mr. Bickford has added the passage of time to the mix, noting that the failure to complete the plaintiff’s discovery and to retain notes and records will interfere with the defendant’s ability to defend herself at trial. In his view, liability remains in issue. The plaintiff acknowledged when examined that there was a large stone wall that would have required the defendant to pull out beyond the stop sign in order to observe north and southbound traffic. As a result, it is suggested that the plaintiff ought to have entered the intersection more cautiously.
45Instead, as the plaintiff had been traveling downhill just before the accident, he gathered momentum as he traveled, yet, on his evidence, he only slowed his speed a few inches from the intersection. He had neither a bell nor a light on his bike and was not wearing a helmet at the time of this event.
46In terms of damages, the plaintiff was around 19 years of age at the time of this accident and was apparently in college, in the second of a three year course towards a diploma in architecture and design.
47He is a poor historian. Although he advised his psychologist that he saw his family doctor, Dr. Wood, after the accident, it appears he did not do so until September 17, 2009, almost a full year post-accident. This is also inconsistent with his having told the psychologist that he experienced a number of symptoms immediately post loss.
48Physiotherapy treatments were sought, according to the psychologist, once per week over the course of five months. This conflicts with the plaintiff’s own evidence, to the effect that treatment for his back and shoulder was sought for only three months post-accident, once or twice per week.
49Though the psychologist reports that the plaintiff was in the midst of a course of studies at college when he was injured and that he was a full-time college student, she also said that he had been working full-time at that stage. The accident occurred at 2:35 on Friday afternoon which also suggests that the plaintiff was not in full time employment. The psychologist does report that the plaintiff took three months off work, as he stated, but that he lost no time from school.
50By May 29, 2010, the plaintiff had reported to his psychologist that he felt he was 70% improved from his physical injuries and that he had a 95% capacity to work.
51Although the plaintiff complained of left shoulder pain post-accident, he noted that as part of his weight training at King West Training, and within only months of the accident, he was doing cardio, lifting weights of 10-15 pounds and doing a shoulder/bicep workout involving weight of up to 35 pounds. He also lifted 25 pound dumbbells over his head, one in each hand.
52Despite being able to do all of the above, the plaintiff advised the psychologist in May 2010 that he could only carry out light duties at home and that his pain affected his ability to prepare meals, wash dishes, make the bed, vacuum, do laundry, mow the lawn, garden and more. Apparently, his insurer was paying for home care to manage these things for him, though he lived with friends in a condominium.
53Although it was almost a year post-accident before the plaintiff sought care from his family doctor, he told the psychologist that he began to have mood fluctuations and feelings of depression within five months of this event. The psychologist felt this was an extreme level when she saw him and she recommended psychotherapy. It is not clear if this was pursued further.
54The plaintiff appears to have changed jobs after the accident. By December 2009, a little after a year post loss, he was a customer and financial service representative at the TD Bank, having taken more than 10 computer courses to qualify for the position. He worked 30-35 hours per week but moved on again in May 2012.
55Mr. Bickford states that he was not aware of the breakdown in communications between the plaintiff and his counsel prior to seeing the motion materials.
56In summary, this accident occurred almost 8 years ago. If the dismissal order is set aside, there is still a lot of work to do before the matter can proceed to trial. Oral and documentary discovery is not yet complete and mediation has not taken place. The defendant would want and be entitled to at least one, if not more, defence medical examinations. I would be surprised if the matter could be ready for trail any earlier that 2018, 10 years post-accident.
57The plaintiff does not appear to be a good historian and the earlier OHIP records are now out of reach. An early defence medical examination pre-surgery is no longer available. There was no address to the one independent witness back in 2008. I have no evidence from the plaintiff to confirm that they have located her and that she even recalls any of this.
THE LAW
58It is trite law that this motion must be dealt with using a contextual approach. We start with the 4 Reid factors, but also considering any and all other relevant factors.
59In more recent years, the Court of Appeal has focused on whether the delay leading to dismissal and the prejudice caused by that delay that would interfere with the defendant’s ability to have a fair trial if the matter was permitted to proceed. All the relevant factors must be considered together to ensure that a fair trial is still available to him.
60In H.B. Fuller Company v. Rogers, 2015 ONCA 173, the court began its fairness analysis more generally, starting with the fact that the plaintiff’s counsel never received the status notice. This was a critical factor in the analysis.
61The court then noted that neither the Reid factors nor the two-part test articulated where actions have been dismissed as abandoned provided an exhaustive list of factors to be reviewed by the court. This stresses the contextual approach, which really involves assessing each case in the context of its own facts and circumstances. At the end of the analysis, the goal is to arrive at a just result, meaning one that is just to both parties.
62In Fuller, the Court of Appeal returned to the theme of competing interests already articulated in earlier case law. When assessing where to give priority as between the desire to provide justice in a timely and efficient manner on the one hand, while deciding cases on their merits on the other, they favoured a merits-based resolution over an administrative one. This was particularly the case where it was counsel’s the error that led to the dismissal.
63The defendant’s conduct is also considered to be a relevant factor. While that has been the case for some time where defendants have been uncooperative, the court’s view more recently expressed is that it should also be considered when the defendant has taken a passive role and sat back, doing nothing at its end to move the action along.
ANALYSIS AND CONCLUSION
64There is no suggestion of inadvertence. In their evidence, counsel effectively says that the plaintiff, himself, is responsible for the last year of delay as he has been incommunicado, so they have been unable to confirm instructions. That is the only explanation provided for any of the delay for the delay, none having been giving for all of the time that preceded late February 2015.
65This evidence is not mitigated by a closing submission from counsel, to the effect that the delay was not deliberate. Whether it was deliberate or not in only one factor to consider. Where a plaintiff loses touch with his counsel through his own doing immediately after agreeing to a timetable, his conduct is nothing short of reckless.
66There is no explanation at all for delay in the period leading up the first dismissal, or up to January 2015, when it seems that the plaintiff finally began to seek answers to undertakings and to explore the issue of whether the meniscus repair occasioned to the plaintiff’s left knee was required by pre-existing issues or by this accident. Again, there is no reference to inadvertence to explain away these delays.
67It is curious that, though two doctors were asked for their opinions with respect to the left knee, the reports/letters received in response have not been served or appended as exhibits to this affidavit.
68As I have outlined above, aside from starting examinations for discovery, nothing further appears to have been done by the plaintiff to advance this action until they began writing for compliance with undertakings in early 2015 – that was more than 6 years post-accident, 4 ½ years after commencement of the action and more than a year after examinations for discovery had begun.
69The discoveries have not resumed as it seems that some of the productions requested by the defence that had not appeared before the first examination were still missing. The evidence before the court (the transcripts) indicates that Mr. Bickford had written repeatedly to seek production before the examinations began, but that his requests elicited no response.
70Based on Ms. Barron’s evidence, the root of the problem appears to be a client who was reluctance to proceed. While it is not clear over what period of time instructions were sought to confirm what counsel had already agreed to do by set deadlines, it is clear that counsel appear to have been of the view that they had to confirm that the plaintiff did, indeed, want to proceed with scheduling mediation and setting the action down for trial. Ms. Barron states the firm needed confirmation of their instructions in this regard.
71The request letters to Dr. Mah and Dr. Wood, referring to a pre-existing issue with the left knee, is a further factor to be considered in the mix. That, and the fact that the medical reports provided in response were not shared with the defendant must be factored into my deliberations.
72The inference I draw from this is that these reports were not helpful to the plaintiff’s position regarding whether the left knee issue was caused by this accident. It is possible that, upon receipt of those reports, and on being advised of his doctors’ opinion, the plaintiff lost interest in the case.
73The fact that the plaintiff did not even see his own doctor for almost a year after the accident also raises questions about how he regarded the effects of this accident on what now appears to have been a pre-existing condition. All of this could have dictated the pace of the litigation.
74In view of paragraph 19 of Ms. Barron’s affidavit, I am not able to say that the plaintiff always intended to proceed with this action. My view is supported by the plaintiff’s failure to respond to counsel and provide the instructions they apparently sought to book mediation. As there is no evidence from the plaintiff as to why he has approached the matter in this way, I cannot find that the explanation for the delay is reasonable or acceptable. As the order that is just must do justice to both parties, it find that in these circumstances, it is entirely unfair to leave a defendant in an action when it is not at all clear it is one the plaintiff wishes to pursue.
75Further, I am of the view that there will be prejudice here, not compensable by costs, of such a degree as to threaten the defendant’s ability to obtain a fair trial. They were unaware of the divide that appears to have developed between the plaintiff and his counsel, nor do they appear to have known that the plaintiff had a left knee injury before the accident which led to surgery years later. The OHIP records before 2005 will no longer be available, and the opportunity to conduct a defence medical examination before the repair to explore the causation issue and the nature and extent of the damage, has also been lost
76The passage of time is a further problem in this case as I have already noted several inconsistencies between the plaintiff’s evidence and what he advised his psychologist, though he saw her less than two years after the accident. If he was a poor historian then, it seems highly unlikely that he will be any better placed more than eight years after the accident to be able to explain the events leading up to it and how his injuries progressed thereafter. There will be the added difficulty of sorting out the status of the plaintiff’s left knee, both before and after the accident in view of the apparent pre-existing problems
77Perhaps the biggest problem is that allowing the action to proceed on the basis of a tight timetable seems to be of no benefit to anyone, as the plaintiff’s counsel maintain that they are having difficulty contacting him and are unable to get instructions. What purpose would it serve to create yet another timetable, this time without the plaintiff’s consent, if he is unaware of this proceeding; apparently disinterested in the action; and has failed to comply with two previous court orders when his input was provided?
78While I am a great believer in “last chance” orders, after two dismissal orders, and in the context of the plaintiff’s current lack of response to his counsel, I am of the view that he has already used up his last chance. The just order in the circumstances, one that is fair to both parties, is a dismissal of this motion.
79If the parties are unable to agree as to the costs of the motion, I can be approached in writing within the next 30 days. The responding party is also entitled to her costs of action, to be assessed.
Master Joan M. Haberman
Released: March 17, 2016