Catalano v. Ortega, 2016 ONSC 2542
CITATION: Catalano v. Ortega, 2016 ONSC 2542
COURT FILE NO.: CV-10-397739
DATE: 20160421
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MARTHA CATALANO and 1677329 ONTARIO LTD.
Plaintiffs
– and –
JARVIS ORTEGA
Defendant
Tolulope Adewumi, for the Plaintiffs
Kerry Nash, for the Defendant
HEARD: April 13, 2016
G. DOW, J.
REASONS FOR DECISION
[1] The plaintiffs, Martha Catalano and 1677329 Ontario Ltd. (“Catalano”) seek to set aside the Registrar’s Order of July 4, 2012 dismissing her action for delay. The defendant opposes the relief being sought.
Background
[2] It is clear Catalano has not been well served by members of the legal profession. Catalano’s action arises from $36,300 which was loaned to a client of the defendant, Jarvis Ortega (“Ortega”), a barrister and solicitor in the province and was allegedly to be secured by a second mortgage. Catalano gave the money to her lawyer (not her counsel of record today) who forwarded the funds to Ortega.
[3] The second mortgage was apparently never prepared and the funds not repaid, even after the property was sold. Catalano went to the lawyer she had provided the funds to initially and instructed him to commence an action against Ortega. The Statement of Claim was issued February 24, 2010.
[4] Counsel for Ortega served a Statement of Defence on or after March 9, 2011 and pointed out to counsel for Catalano that he was in a conflicted position and could not act. That counsel was non-responsive and this required a motion, returnable July 12, 2011 served by Ortega which was, ultimately, not opposed.
[5] The next lawyer retained by Catalano was in September, 2011 but did not proceed with the matter. As a result, Catalano filed a Notice of Intention to Act in Person in October, 2011. This was contrary to Rule 15.01(2) with regard to the corporate plaintiff. Catalano also apparently begins to have financial troubles at this time and deposed not receiving the Status Notice dated March 22, 2012. This Status Notice appears to have been issued only one year after the Statement of Defence was served (and presumably filed) rather than the two years indicated on the actual Notice.
[6] After the action is dismissed for delay July 2, 2012, it is not until December, 2012 Catalano contacts her current counsel and deposes he agreed to take on her case “on a contingency basis”. Catalano’s current counsel contacts counsel for Ortega and is advised of the dismissal order. This is confirmed in writing February 28, 2013. The current counsel promptly responds advising of his intention to bring this motion. The materials of Ortega indicate plaintiff’s counsel made efforts to secure a date on multiple occurrences without following through beginning in March, 2013 until January, 2016 when this motion is prepared and served, originally returnable February 28, 2016.
[7] Unfortunately, the motion did not proceed on that date as a result of court scheduling problems and the lack of judicial resources and was adjourned to April 13, 2016.
Issue and Analysis
[8] The case law sets out a four-part test for the plaintiff to satisfy:
explanation of the delay;
inadvertence in missing the deadline;
promptness in bringing the motion;
lack of prejudice to the defendant.
[9] This is set out in paragraph 8 of Reid v. Dow Corning Corp., [2002] O.J. No. 3414. More recent decisions from the Court of Appeal have attempted to weigh the need for cases to be determined on their merits while showing respect for the Rules of Civil Procedure so as not to undermine “public confidence in the capacity of the justice system to process disputes fairly and efficiently” (Justice Sharpe in 1196158 Ontario Inc. v. 6274013 Canada Ltd., 2012 ONCA 544 at paragraph 19).
[10] The merits of the plaintiff’s motion is tenuous with regard to the first three and particularly the third factor. However, I am guided by the comments of Justice Laskin in Finlay v. Van Paassen, 2010 ONCA 204 where, at paragraphs 32 and 33 he reviews the concern in depriving a party of its day in court due to the possibility of a negligence action against that party’s own lawyer. He concludes, and I agree, that “The court should be concerned primarily with the rights of the litigants, not with the conduct of their counsel”. I am satisfied, despite the questionable efforts of the plaintiffs’ counsel that the plaintiffs intended to pursue this claim. To dismiss this motion would, in my view, invite another action by the plaintiffs against another lawyer.
[11] I am reinforced in my conclusion given the evidence of the defendant with regard to the fourth factor, is limited to “memories of witnesses have faded”. This is not the type of prejudice cited by Justice Sharpe in 1196158 Ontario Inc. v. 6274013 Canada Limited, supra, where, at paragraph 31 examples were given such as the death of a witness, the inability to locate a witness or the loss of evidence, including documents. The defendant in this matter is a lawyer, with a file and has known about this claim well within the time he is obliged to maintain his file.
[12] As a result, I am prepared to set aside the dismissal on the following terms:
the parties shall serve their Affidavit of Documents by May 17, 2016;
Examinations for Discovery of each party is to be conducted by July 31, 2016;
the plaintiff shall certify the action ready for trial and serve and file its Trial Record by September 13, 2016;
a date for mediation shall be arranged before September 13, 2016.
[13] Should the plaintiffs fail to complete any of these terms, the defendant is at liberty to move to dismiss the action with reference to these Reasons.
Costs
[14] Counsel for the defendant prepared a Costs Outline which attributed $3,560 with regard to this motion on a partial indemnity basis. Counsel for the plaintiff did not have a Costs Outline available, contrary to Rule 57.01(6). In my view, the appropriate disposition for costs is that same be fixed in the amount of $3,560 plus HST of $462.80 for a total of $4,022.80 payable by the plaintiffs to the defendant in the cause.
Mr. Justice G. Dow
Released: April 21, 2016
CITATION: Catalano v. Ortega, 2016 ONSC 2542
COURT FILE NO.: CV-10-397739
DATE: 20160421
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MARTHA CATALANO and 1677329 ONTARIO LTD.
Plaintiffs
– and –
JARVIS ORTEGA
Defendant
REASONS FOR DECISION
MR. JUSTICE G. DOW
Released: April 21, 2016