Superior Court of Justice – Ontario

SHARMA v. PERALTA

Court File No.: CV-12-109262 Citation: 2016 ONSC 3997 (Motion Heard at Newmarket on June 16, 2016)

Endorsement

Master R. A. Muir

[1] The plaintiffs bring this motion pursuant to Rule 37.14 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) for an order setting aside the order of the registrar dated August 13, 2013 dismissing this action as abandoned.

[2] The defendant opposes the relief requested on this motion.

[3] This claim arises out of a motor vehicle accident that took place on May 19, 2010. A statement of claim was issued on May 2, 2012. Quite frankly, very little was done to advance this action for the next three years.

[4] An order was made by Justice Lauwers on November 27, 2012 which allowed the plaintiff until August 30, 2013 to serve the statement of claim. Attempts were then made to serve the statement of claim but by early 2015 it appears that the defendant had still not been served, at least strictly in accordance with the Rules and the extension order.

[5] The plaintiffs brought a further motion in the spring of 2015 seeking another order extending the time for and validating service of the statement of claim. That motion was ultimately heard by Master Brott on November 13, 2015. The defendant appeared and opposed this further extension motion. Master Brott granted the relief requested and validated service of the statement of claim. Importantly, Master Brott made the following findings:

• the plaintiffs’ evidence regarding delay was weak but the length of delay was not inordinate;
• the evidence of the plaintiffs was sufficient to explain the delay;
• the defendant contributed to the delay;
• the evidence of prejudice was not strong enough to deny the order being sought; and,
• the defendant’s absence from the country was not prejudice resulting from the delay as he had left Canada in 2011.

[6] After Master Brott made her order extending time and validating service, the plaintiffs served their affidavit of documents and scheduled discoveries. It was only after examinations for discovery had been agreed to that the defendant discovered the action had been dismissed in 2013. This fact was also not known to the plaintiff’s current counsel and it was obviously not brought to the attention of Master Brott at the hearing of the November 2015 motion. The plaintiffs then brought this motion in a timely manner from the date they learned of the dismissal order.

[7] In my view, the plaintiffs are entitled to the relief requested for two reasons.

[8] First, I view the registrar’s order as an irregularity and the plaintiffs are entitled to an order setting it aside as of right. Justice Lauwers made an order in November 2012 extending the time for service to August 30, 2013. The registrar made an order on August 13, 2013 dismissing this action as abandoned. The registrar’s order is obviously inconsistent with Justice Lauwers’ extension order of November 27, 2012. It cannot stand for this reason alone.

[9] Second, Master Brott has made findings of fact that are mostly dispositive of the issues on this motion. The law relating to motions for an order setting aside an administrative dismissal order is summarized in my decision in Williams v. Whitefish River First Nation, 2014 ONSC 1817 at paragraphs 15-18. Four factors are of central importance. The court must consider the explanation for the delay, whether the deadline was missed due to inadvertence, any delay in bringing the motion to set aside the dismissal order and prejudice to the defendant.

[10] Master Brott made specific findings that the plaintiffs’ delay had been adequately explained and that the defendant would not be prejudiced if this action were allowed to proceed. No appeal was taken from that decision. The defendant’s submissions today with respect to missing medical evidence and the lack of discovery of the plaintiffs could and should have been made before Master Brott. Perhaps I may have come to different conclusions given the evidence before Master Brott. However, it is not my role on this motion to second guess Master Brott. In my view, the defendant is now seeking to re-litigate issues that were squarely before and clearly decided by Master Brott.

[11] In any event, I do not see how the mere fact of the existence of the dismissal order would have altered Master Brott’s conclusions on that motion when it came to delay and prejudice. It should also be noted that the existence of the dismissal order is a fact the defendant could have discovered in November 2015 and brought to the attention of Master Brott. He did not do so. There is also nothing in the evidence to suggest that anything has changed since November 2015. In fact, the plaintiffs have now served their affidavit of documents and copies of productions. They are prepared to attend at discovery. These facts strengthen the plaintiffs’ position on prejudice to some extent.

[12] The other factors to be considered on this motion are inadvertence and promptness in bringing the motion. The motion has been brought promptly following the plaintiffs learning of the dismissal order. The defendant does not dispute this. I agree with the defendant that the evidence of inadvertence is not sufficient. The plaintiffs’ counsel made submissions about inheriting many files over a short period of time and how their usual tickler system was not applied to this file but none of that information is in evidence on this motion. I have therefore not considered it. However, on a motion of this nature the court is to apply a contextual analysis. The plaintiffs need not satisfy all relevant factors. Prejudice is the key consideration. See Williams at paragraph 15.

[13] For these reasons, I have concluded that it is just in the circumstances of this action that the dismissal order of the registrar dated August 13, 2013 be set aside. The defendant shall deliver his statement of defence by June 30, 2016. The registrar is hereby directed to accept the defence for filing. This action shall be set down for trial by May 2, 2017 failing which is shall be dismissed by the registrar without further notice.

[14] The parties suggest that there be no order for the costs of this motion. I agree. Order to go in the form of the draft order signed by me.

Master R. A. Muir Date: June 16, 2016