Court File and Parties
CITATION: Brinkhurst v. Bebluk, 2016 ONSC 4255
COURT FILE NO.: 09-CV-387376
MOTION HEARD: 20160302
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: DAVID BRINKHURST, DAVID BRINKHURST & ASSOCIATES, TORONTO FINANCIAL GROUP INC., plaintiffs
AND:
MARGUERITE BEBLUK, CYNTHIA O’BRIEN, dba O’BRIEN’S OFFICE SERVICES, CYNTHIA O’BRIEN, TERRENCE O’BRIEN, defendants
BEFORE: Master Lou Ann M. Pope
COUNSEL: Counsel for lawyer for the plaintiffs: Brian Pickard, John Cannings Barristers Fax: 416-591-0710
Counsel, for the defendants: Neil Searles, Zuber & Company LLP Fax: 416-362-5289
REASONS FOR DECISION
[1] The plaintiffs seek an order under rule 37.14 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“Rules”), to set aside the registrar’s dismissal order for delay dated June 2, 2015 issued pursuant to rule 48.14 for failure to set this action down for trial by May 5, 2015 as ordered by Master Hawkins at a status hearing on May 5, 2014.
Procedural History
[2] The plaintiff, David Brinkhurst (“Brinkhurst”), alleged that he slipped and fell on October 20, 2007, in a hallway in the defendants’ office building. Brinkhurst is an accountant and at the time of the alleged fall he was a tenant in the defendant, Marguerite Bebluk’s (“Bebluk”), building where he operated Toronto Financial Group Inc. and David Brinkhurst & Associates.
[3] This action was commenced by notice of action on September 18, 2009 by the plaintiffs’ former lawyer. The statement of claim was issued on October 18, 2009. The statement of claim sets out two causes of action. The first negligence claim arose out of the plaintiff’s fall in which he claims damages for injuries sustained in the fall. The second cause of action is for breach of lease between Brinkhurst and his landlord.
[4] A status notice was issued on May 3, 2012. The plaintiff requested a status hearing. Master Hawkins heard a contested status hearing on October 16, 2013. In his Reasons for Decision dated January 22, 2014, Master Hawkins allowed the action to proceed to trial with the exception of the claims that dealt with the conduct of other tenants in Bebluk’s building.
[5] Master Hawkins included in his Reasons for Decision a detailed history of the action up to the status hearing heard on October 16, 2013, which I have attached as Appendix “A” to these Reasons for Decision.
[6] The salient steps in this action are as follows:
September 18, 2007 Notice of Action issued
October 18, 2009 Statement of Claim issued
January 22, 2010 Order amending Statement of Claim
April 30, 2010 Statement of Defence delivered
May 11, 2010 Reply delivered
September 7, 2011 Bebluk delivered Affidavit of Documents
October 11, 2011 plaintiffs delivered Affidavit of Documents
May 3, 2012 Status Notice issued followed by plaintiffs request for a status hearing
June 3, 2013 plaintiffs retained new counsel (Dan Holland, Bensen, Percival, Brown)
October 16, 2013 contested status hearing
January 22, 2014 Master Hawkins Reasons for Decision released
May 5, 2015 Case conference; Master Hawkins ordered that the action to be set down for trial by May 5, 2015
June 2, 2015 action dismissed for delay by Registrar
Master Hawkins’ Findings
[7] In concluding that the action should be allowed to proceed to trial with the exception of the claims noted above, Master Hawkins made numerous findings which are set out below.
[8] He found that the plaintiffs had satisfactorily explained one but not both of the litigation delays in the action with the first being a significantly longer period of delay than the second.
[9] Further, he dismissed the plaintiffs’ claims for losses flowing from the conduct of the other tenants due to unexplained litigation delay which caused prejudice to Bebluk in her defence of those claims.
[10] Bebluk did not claim to have been prejudiced in her ability to defend the claims arising from the slip and fall accident of October 20, 2007 because one or more helpful witnesses had died or disappeared.
[11] Bebluk was not prejudiced in her ability to defend all the claims because her liability insurer retained an adjuster early on to investigate the claims. The adjuster’s documents were prepared fairly contemporaneously with the events underlying the claims. Those documents appear to have recorded the recollections of Bebluk and the co-defendants, Cynthia and Terrence O’Brien. On that basis, Master Hawkins drew an inference adverse to Bebluk given her evidence that her memory regarding many of the events relating to the action had been failing, that she was no longer able to live on her own and that she was 78 or 79 years of age at that time.
[12] The O’Brien defendants suffered no actual prejudice owing to the litigation delay.
Test to Set Aside the Registrar’s Dismissal Order
[13] This action was dismissed for delay on June 2, 2015 pursuant to Rule 48.14(1). It is important to note that the applicable rules regarding administrative dismissals were amended effective January 1, 2015 whereby former Rules 48.14 and 48.15 were revoked and replaced with the current Rule 48.14. Therefore, this action was dismissed under the current Rule 48.14. The effect of the amendments will be addressed in more detail later in this decision.
[14] Subrule 48.14(16) provides that an order under rule 48.14 dismissing an action for delay may be set aside under rule 37.14.
[15] Rule 37.14(1) provides that a party who is affected by an order of a registrar may move to set aside the order, by a notice of motion that is served forthwith after the order comes to the person’s attention and names the first available hearing date that is at least three days after service of the notice of motion. The court has discretion to set aside the order on such terms as are just. (subrule (2))
[16] The plaintiffs have the onus to satisfy the court that this action should be permitted to proceed.
[17] In considering whether the dismissal order should be set aside, the court will consider the following four factors while taking a contextual approach in order to achieve a result that is just in all the circumstances. It is not necessary for the plaintiffs to satisfy each of the four factors in order to have the order set aside. (Reid v. Dow Corning Corp. (2001), 11 C.P.C. (5th) 80 (Ont. Master), Finlay v. Van Paassen, 2010 ONCA 204, 2010 CarswellOnt 1543 (C.A.), at paras 27-29; Wellwood v. Ontario Provincial Police, 2010 ONCA 386; Habib v. Mucaj, 2012 ONCA 880, [2012] O.J. No. 5946))
a. Explanation for the litigation delay;
b. Inadvertence in missing the deadline;
c. Promptness in bringing the motion to set aside;
d. Prejudice to the defendants.
[18] In Ross v. Hertz Canada, 2013 ONSC 1797, Master Dash provided the following summary of the guiding principles:
A plaintiff need not satisfy all four of the Reid factors but rather a contextual approach is required;
The key point is that the court is to consider and weigh all relevant factors to determine the order that is just in the circumstances of each particular case;
All factors are important but prejudice is the key consideration;
Prejudice to a defendant may be presumed, particularly if a lengthy period of time has passed since the order was made or a limitation period has expired, in which case the plaintiff must lead evidence to rebut the presumption;
Once a plaintiff has rebutted the presumption of prejudice, the onus shifts to the defendant to establish actual prejudice;
Prejudice to a defendant is not prejudice inherent in facing an action in the first place but prejudice in reviving the action after it has been dismissed as a result of the plaintiff’s delay or as a result of steps taken following the dismissal of the action;
The party who commences the litigation bears the primary responsibility under the Rules for the progress of the action; and,
In weighing the relevant factors, the court should not ordinarily engage in speculation concerning the rights of action a plaintiff may have against his or her lawyer but it may be a factor in certain circumstances, particularly where a lawyer’s conduct has been deliberate. The primary focus should be on the rights of the litigants and not with the conduct of their counsel.
Analysis
[19] I will now address the four Reid factors.
Explanation for the Litigation Delay
[20] The plaintiffs 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 or an order that extends the set down date.
[21] By the status hearing on October 16, 2013, this action had been ongoing for some four years and no steps had been taken beyond pleadings and exchange of affidavits of documents.
[22] In explaining the litigation delay, a plaintiff must explain the delay from the commencement of the proceeding to the date of the hearing. As Master Hawkins heard submissions regarding the litigation delay in the context of the status hearing, I defer to his findings in that regard and I see no need for me to repeat that step. Therefore, I will now consider the plaintiffs’ explanation for the litigation delay following Master Hawkins’ decision on January 22, 2014.
[23] It is the evidence of plaintiffs’ counsel, Daniel Holland (“Holland”), that his instructions from the plaintiffs have always been to proceed with this action and the plaintiffs have never instructed him to delay, abandon or put this matter in abeyance. He states that the plaintiffs have been active in this case and have provided him with documents and affidavits for the contested status hearing and this motion. He further states that the delays in this action were the result of initiating the solicitor’s negligence action and to have that action defended and complete productions so that the two actions could proceed together. He contends that as the issues of liability and damages in this action are also at issue in the solicitor’s negligence action, he felt that the two actions should proceed together. Following that approach, he proposed joint discoveries and attempted to obtain dates from both defence counsel.
[24] It is Brinkhurst’s evidence that it has always been his intention to pursue this action to a conclusion and he has always communicated that to his lawyer. He says that he has assisted counsel with the prosecution of the action, including signing authorizations to obtain medical and other records, providing them with copies of his financial records, medical records, treatment accounts, giving settlement instructions early in the action, and signing an affidavit of documents. He further states that after the court issued the status notice he became concerned about the progress of the action and, thereafter, changed counsel and terminated his first lawyer’s retainer. He also states that he never gave his lawyer instructions to delay or abandon his action. He has never been advised by his doctors or healthcare providers that his medical records have been or will be destroyed and he has not lost or destroyed any relevant documents.
[25] The plaintiffs also adduced evidence from Santina Catalano who is a receptionist in Mr. Pickard’s office. Her evidence relates to searches that were performed which demonstrate that Brinkhurst’s physicians continue to practice in Ontario and his healthcare providers continue to operate. Ms. Catalano states that she telephoned each of the providers and verified that they are still in operation in Ontario.
[26] Following the release of Master Hawkins’ Reasons on January 22, 2014, Holland states that the plaintiffs took meaningful steps to move this action along to a conclusion. On pages 25 through 27 of his affidavit, he lists the steps taken after January 22, 2014. I note however that the majority of the steps relate to the plaintiffs’ new action against his former counsel for solicitor’s negligence which was commenced on August 8, 2014 (“solicitor’s negligence action”). Many of Holland’s letters to defence counsel in both actions purport to conduct joint discoveries and allude to moving the solicitor’s negligence action along so that the actions could be tried together; however, there is no evidence that the defendants in either action ever consented to that proposal nor did Holland bring a motion for same. I do not consider that the steps taken in the solicitor’s negligence action to be steps taken to advance this action.
[27] The steps taken by the plaintiffs after Master Hawkins’ decision on January 22, 2014 are as follows:
January 30, 2014 - Holland wrote to defence counsel and proposed a timetable for completion of the balance of the steps by November 29, 2014
Shortly after Master Hawkins’ decision was released, counsel dealt with the costs of the part of the action dismissed at the status hearing
Early March 2014, a few letters were exchanged between counsel regarding the timetable and payment of Master Hawkins’ cost order; plaintiff signed authorizations to obtain updated medical documents and defence counsel proposed the following modified timetable to which Holland agreed:
• Provide updated medical and financial productions by June 30, 2014;
• Complete discoveries by October 31, 2014;
• Motions arising from discoveries to be booked by January 16, 2015;
• Mediation to be completed by March 6, 2015.
April 11, 2014 - Holland wrote to defence counsel regarding the timetable
May 5, 2014 – case conference held to establish a timetable; Master Hawkins ordered that this action be set down for trial by May 5, 2015
[August 8, 2014 – plaintiffs commenced solicitor’s negligence action]
October 2014 - Holland requested plaintiff’s doctors notes and records; Holland wrote to defence counsel in both actions enclosing the statement of claim in the solicitor’s negligence action and requesting that the actions be tried together
November 2014 – Holland followed-up with Dr. Niedoba for his updated notes and records and sent Dr. Niedoba’s notes and records to defence counsel
December 2014 – Holland sent a letter marked “Urgent” to defence counsel in both actions, OHIP’s subrogated interest statement and provided dates for examinations for discovery between April and June 2015
January 13, 2015 – defence counsel responded to Holland’s letter of December 12, 2014 with a lengthy letter in which he pointed out the following: (1) that Master Hawkins gave the plaintiffs a “significant indulgence” by allowing the action to proceed given the delay, (2) plaintiffs’ late payment of the costs order, (3) plaintiffs’ proposed timetable for completion of steps by November 29, 2014, (4) defence counsel’s modified schedule allowing the parties more time to complete steps to March 6, 2015 to which Holland agreed, (5) plaintiffs’ delay in failing to abide by the agreed-upon timetable and instead pursue the solicitor’s negligence action and assessment of his former lawyer’s account
January 19, 2015 – in response to defence counsel’s letter of January 13, Holland stated that he wanted to move the matter ahead, requested a statement of defence in the solicitor’s negligence action so that discoveries could be scheduled, and advised that the plaintiffs’ updated affidavit of document would follow shortly
January 20, 2015 – Holland canvassed dates for discoveries with defence counsel
April 21, 2015 – Holland wrote to both defence counsel and advised that due to the impending tax deadline, Brinkhurst’s schedule was extremely busy and that once April 30 passed, Holland would meet with the plaintiffs to swear an affidavit of documents; thereafter he would like to arrange discoveries; he noted that there had been no defence filed in the solicitor’s negligence action
[set down date of May 5, 2015 passed and on June 2, 2015 the action was dismissed for delay a second time by registrar’s order]
July 3, 2015 – Holland requested updated records from Headwater Health Care Centre and a second request from Dr. Schmalfuss
July 22, 2015 – Holland wrote to defence counsel in both actions regarding the following: (1) updated counsel regarding the plaintiff’s treatments, (2) the plaintiffs were not making an economic loss claim in this action, (3) updated affidavit of documents would be provided once further medical records were obtained, (4) provided a copy of the dismissal order of June 2, 2015 indicating that he would arrange a motion, (5) asked for consent to have the two actions proceed together, (6) a statement that he had not received a defence in the solicitor’s negligence action
July 22, 2014 – the same day defence counsel responded to Holland and addressed the plaintiffs’ delay and the latest breach resulting in the second dismissal order
July 31, 2015 – plaintiffs served a notice of motion to set aside the dismissal order
[28] I note that copies of many of the communications relied on by the plaintiffs are not included in their evidence; however, as cross-examinations were not held, I have no reason to doubt their existence.
Periods of Delay
May 15, 2010 to October 11, 2012
[29] Master Hawkins found that there had been two periods of delay and that the first and longer period of delay of almost 15 months from May 15, 2010 to October 11, 2012, had not been explained. However, as he ultimately found that Bebluk had not been prejudiced in her ability to defend the negligence claim and the O’Brien defendants had not suffered any actual prejudice, he allowed the action to proceed. He noted however that by doing so, he was granting the plaintiffs a “significant indulgence”.
[30] The plaintiffs have not provided any further evidence to demonstrate any explanation for that same period of delay. Therefore, my finding regarding the delay from May 15, 2010 to October 11, 2012 is unchanged from Master Hawkins’ finding.
March 2014 to October 2014
[31] Following the release of Master Hawkins’ decision on January 22, 2014, there was a lengthy period of delay from March 2014 to October 2014 of some seven months.
[32] While counsel attended a case conference with Master Hawkins during that time on May 5, 2014, counsel had already agreed to a timetable as proposed by defence counsel in his letter of early March 2014. The plaintiffs agreed to provide updated productions by June 30, 2014. No explanation has been provided for failing to comply with that timeline.
[33] The parties agreed to complete discoveries by October 31, 2014; however, in the meantime on August 8, 2014, the plaintiffs commenced the solicitor’s negligence action.
[34] Holland’s explanation for not complying with the balance of the timelines is due to the commencement of the solicitor’s negligence action and his approach to move that action ahead so that there could be joint discoveries and the actions could be tried together. The difficulty I have with Holland’s explanation for the delay is firstly, there is no evidence that he obtained the consent of either defence counsel to that proposal and, secondly, even by April 21, 2015 he still did not have a statement of defence in the solicitor’s negligence action which was eight months after that action had been commenced. Moreover, even in Holland’s letter of April 21, 2015, he was not insisting on delivery of a defence – he merely made note of it.
[35] Although it was Holland’s approach to move ahead the solicitor’s negligence action so that both actions could have joint discoveries and ultimately be heard together, I find that his conduct in achieving that result is not consistent with his approach for the above reasons.
[36] Even if I were to accept the explanation after August 8, 2014 when the second action was commenced, there remains no explanation for no steps having been taken from March 2014 to August 8, 2014 of some five months.
January 20, 2015 to April 21, 2015 and thereafter
[37] There is no explanation for the three-month delay from January 20, 2015, when Holland provided available dates for discoveries, to his letter of April 21, 2015. In his April 21, 2015 letter to defence counsel, he said that due to his client being “extremely busy” due to the tax deadline of April 30th, he would not be able to meet with Brinkhurst until after April 30th to execute his affidavit of documents. Thereafter he said that he would arrange discoveries. This was the same letter where Holland “noted” that he still did not have a defence in the second action.
[38] I find that there is no explanation provided for this three-month delay.
[39] Furthermore, there is no explanation for the delay following April 30, 2015 when the tax deadline passed. The plaintiffs did not deliver Brinkhurst’s affidavit of documents nor were discoveries scheduled. In fact, in July 2015 Holland advised that because he had requested updated medical records, Brinkhurst’s affidavit of documents would not be delivered until receipt of them. This is contrary to his advice to counsel in his April 21st letter. Moreover, he requested defence counsels’ consent to have the action proceed together yet in the same letter he “notes” that no defence has been delivered in the second action. As stated above, Holland’s approach to having the action proceed together is not consistent with his conduct in achieving that goal.
[40] For those reasons, I find the plaintiffs have not provided an adequate explanation for the delay from January 20, 2015 to July 31, 2015.
Inadvertence in Missing the Deadline
[41] The plaintiff or his solicitor must lead satisfactory evidence to explain that they always intended to set the action down within the time limit set out in the order of Master Hawkins, or obtain an order extending the existing timetable, but failed to do so through inadvertence. In other words the dismissal order was made as a result of inadvertence.
[42] It is Holland’s evidence at paragraph 21 of his affidavit that as a result of a “calendaring error”, his office failed to note the deadline of May 5, 2015 to set the action down for trial.
[43] While I may accept that his office did not diarize the May 5, 2015 deadline, the onus is on the plaintiffs or their counsel to explain that they always intended to set the action down within the time limit set out in Master Hawkins’ order and they failed to do so through inadvertence.
[44] This second factor of the Reid test, requires more than a mere statement that the set down date was not diarized. If that were the case, the evidence on every motion to set aside a dismissal order for delay would contain the same statement which would render this step meaningless. This factor requires an explanation, something more than a bald statement, of the intention of the plaintiffs to meet the deadline, in this case, May 5, 2015. It is imperative that the explanation include the period of time from the date the extension order was made, here on May 5, 2014, to the new deadline which in this action was May 5, 2015.
[45] For the following reasons, I find that the plaintiffs have not provided a satisfactory explanation that they intended to meet the May 5, 2015 deadline through inadvertence.
[46] Firstly, it was in March 2014 that the parties agreed to a timetable to complete the steps in order to set the action down for trial by May 5, 2015 as ordered by Master Hawkins on May 5, 2014. I found there was unexplained delay from March 2014 to August 2014. Secondly, on August 8, 2014, the second action was commenced and it is Holland’s evidence that he intended to move the second action ahead so that both actions could proceed together. Therefore, it can be reasonably inferred that his focus was on moving the second action ahead, not on moving this action ahead to meet the May 5, 2015 deadline. Thirdly, in October and December 2014, Holland was still requesting updated medical records when he agreed to make production by June 30, 2014. Lastly, even by April 21, 2015, no defence had been delivered in the second action; therefore, it cannot reasonably be inferred that the plaintiffs intended to meet the deadline of May 5, 2015.
[47] Based on the evidence, I find it obvious that the plaintiffs had no intention to meet the timelines in the consent timetable including the May 5, 2015 deadline to set the action down for trial. In fact, Holland’s evidence is clear that there was delay due to the second action being commenced and although there were attempts to address the issues caused by the commencement of the second action, no motion was brought to amend the timetable, extend the set down date or to have the two actions be tried together. In other words, I find that the deadline was not missed through inadvertence; rather, it was missed due to delay caused by the commencement of the second action and, more importantly, the plaintiffs’ failure to take any active steps to extend the deadline.
Moving Promptly to Set Aside the Dismissal
[48] The action was dismissed on June 2, 2015. This motion was served on July 31, 2015. The plaintiffs have demonstrated that they moved promptly to set aside the dismissal order.
Prejudice
[49] This factor involves prejudice to the defendants as a result of the delay or upon reliance on the dismissal. The courts have held that of the four Reid factors, prejudice is a key consideration. A presumption of prejudice may arise due to the passage of time and expiry of the limitation period. The plaintiffs have the onus to lead evidence to dispel any such presumption and even if the plaintiffs can overcome a presumption, it is open to the defendants to lead evidence of actual prejudice.
[50] When this motion was brought on July 31, 2015, the limitation period had expired some seven years prior as the slip and fall incident occurred on October 20, 2007.
[51] Master Hawkins found that there was no prejudice to the defendants if the action were allowed to proceed. Specifically, he found that Bebluk had reported the accident to her liability insurer, and early on the adjusters had investigated the alleged slip and fall incident and the circumstances surrounding the plaintiffs’ claim for loss suffered as a result of Bebluk’s alleged wrongful termination of the lease. He found further that the results of the investigation were recorded in the form of reports that included interviews of Bebluk and Cynthia O’Brien.
[52] I defer to and adopt Master Hawkins’ findings of no prejudice to the defendants to the date of the status hearing on October 16, 2013.
Registrar’s Dismissal Order of November 20, 2013
[53] After Master Hawkins reserved his decision on the status hearing held on October 16, 2013, the registrar issued a dismissal order dated November 20, 2013. There is no dispute that the dismissal order was issued in error.
[54] I find that in consenting to set aside the dismissal order on May 5, 2014, the defendants cannot now argue that they suffered any prejudice up to that date. I disagree with the plaintiffs’ submission that given the defendants’ consent to set aside the dismissal order, they are now required to show evidence of actual prejudice that accrued after May 5, 2014. In my view, their reliance for that proposition on MDM Plastics Ltd. v. Vincor International Inc., 2015 ONCA 28, at paragraph 36, does not stand for that proposition. The onus does not shift to the defendants after consenting to set aside that order. Given the lengthy period of time that has passed since the limitation period has expired, the onus remains on the plaintiffs to lead evidence to rebut a presumption of prejudice. The law is that once a plaintiff has rebutted the presumption of prejudice, the onus shifts to the defendant to establish actual prejudice. I am satisfied however that up to May 5, 2014, the plaintiffs have rebutted the presumption of prejudice and the issue remains whether the plaintiffs are able to rebut the presumption from May 5, 2014 to June 2, 2015 when the second dismissal order was made.
[55] Therefore, for the above reasons I find that there was no prejudice to the defendants to May 5, 2014.
Prejudice to the defendants after May 5, 2014
[56] It is Brinkhurst’s evidence that none of his doctors or healthcare providers have ever advised him that any of his medical records have been or will be destroyed. Further he states that he has not lost or destroyed any relevant documents and his lawyer advised him that all of the documents he provided to his lawyer have been preserved in his file.
[57] Holland states that in October 2014 and July 2015 he ordered updated medical records. Holland’s evidence includes a copy of the plaintiffs’ unsworn affidavit of documents which lists 153 documents in Schedule A. The affidavit of documents was delivered to the defendants and all the Schedule A documents are preserved in the file. He further states that there were no witnesses to Brinkhurst’s fall; therefore, there is no issue with respect to critical witnesses being unavailable for trial.
[58] Mr. Pickard’s legal assistant gave evidence that based on her searches and inquiries of all Brinkhurst’s healthcare providers, all of them remain in practice and their offices continue to operate.
[59] Bebluk gave evidence that she is 81 years of age. In opposing this motion, she relies on her evidence given in her affidavit sworn on January 29, 2013 filed for the status hearing. In her former affidavit, she states that her heath declined after she was served with the statement of defence and her ability to recall specific events has eroded significantly. She lives with her son and daughter-in-law as she cannot satisfactorily care for herself on her own. She states that she has lost contact with various potential witnesses regarding Brinkhurst’s tenure at the subject premises as a tenant.
[60] The defendants rely on the general principles regarding prejudice as enunciated by the Ontario Court of Appeal in 1196158 Inc. v. 6274013 Canada Limited, 2012 ONCA 544 at paragraphs 43 and 44 (“119”). The court held that as time goes on, it will be more and more difficult to defend a claim that related to events that had transpired, in that case six years prior, and that would be even more remote by the time of trial. It was accepted that as more time passes, the more difficult it is to defend the case as memories fade and even if documents are not lost, their significance becomes shrouded. It was further held that another harm that flows from delay is that it leaves the litigant with the claim hanging over its head in a kind of “perpetual limbo”. The court went on to state that “fairness requires allowing parties to plan their lives on the assumption that, barring exceptional or unusual circumstances, litigation time lines will be enforced”. Further, litigants are entitled to have their disputes resolved quickly so that they can get on with their lives.
[61] The prejudice that a motion judge or master must consider is regarding the defendants’ ability to defend the action that would arise from steps taken following dismissal or which would result from restoration of the action following the registrar’s dismissal. (806480 Ontario Limited v. RNG Equipment Inc., 2014 ONCA 488, [2014] O.J. No. 2979, at para. 4)
[62] The court must balance any prejudice to the defendants against the prejudice to the plaintiffs from having the case dismissed.
[63] The defendants submit that the plaintiffs squandered the significant indulgence granted to them by Master Hawkins in allowing the action to continue. As such, they argue that if this action is allowed to proceed, particularly considering that discoveries have not been held, the prejudice to the defendants will be as stated by the Court of Appeal in 119, regarding the passage of time and finality.
[64] Notably, the defendants’ evidence fails to state the names of potential trial witnesses, and any attempts made to contact them to enquire as to their availability for trial. Further, there is no medical evidence that Bebluk is unable to give evidence at trial. It is accepted however that her memory and that of any witnesses’ memories regarding the events that took place in 2007, some 9 years ago, will have faded over time.
[65] It is also notable that the O’Brien defendants filed no evidence on this motion.
[66] It is important to remember that the period of time in issue at this juncture is one year from May 2014 when the defendants consented to set aside the first dismissal order to July 2015 when the plaintiffs served the notice of motion to set aside the subject dismissal order.
[67] I find that given the passage of time of approximately five years and nine months from the expiration of the limitation period and the commencement of this action to July 31, 2015 when the notice of motion was served, there is a presumption of prejudice. However, given my above findings, the only period of time in issue is May 2014 to July 2015.
[68] Again, it is important to state that the plaintiffs have the onus to lead evidence to dispel any such presumption and even if the plaintiffs can overcome a presumption, it is open to the defendants to lead evidence of actual prejudice.
[69] The plaintiffs’ evidence is specific with respect to all relevant documents that have been preserved, their continued efforts to update medical records and the current status of potential trial witnesses. On the other hand, the defendants do not raise issues regarding preservation of documents but rather regarding Bebluk’s ability, and that of potential trial witnesses, to recall the events in issue given her age, her health and the passage of time. As stated above, there is no medical evidence that Bebluk is unable to give evidence at trial, nor is there evidence of any medical condition that affects her brain and/or memory given her advanced years.
[70] For the period between May 2014 and July 2015, I am satisfied on the plaintiffs’ evidence that they have rebutted the presumption of prejudice. Further, I find that the defendants have not led any evidence of actual prejudice. In my view, the passage of almost nine years since the alleged incidents occurred and any prejudice to the defendants due to that passage of time is not sufficient to overcome the prejudice to the plaintiffs if this action were dismissed in not having the issues tried on their merits. Clearly the defendants have had this action hanging over their heads for almost nine years and they have a right to have the issues tried as quickly as possible; however, I accept that due to Master Hawkins’ dismissal of some of the plaintiffs’ claims, it was necessary to commence the solicitor’s negligence action which has delayed this action. On the other hand, it does not excuse the plaintiffs’ failure to address the delay and failure to seek an amendment to the timetable given the commencement of the second action. I also find that the plaintiffs never abandoned this action, rather there was significant delay. In my view and for the above reasons, these are not the appropriate circumstances to apply the principle of finality.
Additional Factor
[71] Recent amendments to rule 48.14 may be a relevant factor on a motion to dismiss for delay. The amendments became effective January 1, 2015. Actions commenced on or after January 1, 2015 will now be dismissed for delay by the registrar five years after the date of commencement if the action has not been set down for trial or terminated by other means. This action was commenced on October 18, 2009. Therefore, had the amendments applied to this action, it would have been dismissed for delay in on or about October 18, 2014, or just over seven months before it was actually dismissed on June 2, 2015. The fact that the subject dismissal order was made only seven months after it would have been dismissed under the new Rules, I find that the delay in this action is not excessive. This factor favours the plaintiffs. I have also considered this factor in arriving at my decision to allow this action to proceed.
Conclusion
[72] Although the plaintiffs have not satisfied all of the four Reid factors, taking a contextual approach, it is my view that the plaintiffs ought to be granted a further indulgence to have the issues in this action tried on the merits rather than being dismissed for delay.
[73] Although it has been almost nine years since the alleged incidents and considering the time it will take for this action to be tried, it is imperative that the plaintiffs ensure that dates are diarized and proactive steps are taken to advance this action quickly to trial. The steps will include scheduling discoveries immediately and, if not on consent, bringing a motion to seek to have the two action tried together.
[74] I am aware that the plaintiffs wish to have this action tried together with the solicitor’s negligence action and to have joint discoveries and joint mediation. The evidence of Brenda Casey sworn December 18, 2015 is that the plaintiffs’ former counsel, Robert Regan, delivered a statement of defence on or about October 16, 2015. She further stated that counsel for Mr. Regan advised plaintiffs’ counsel that he agreed to having the two actions tried together and common productions and discovery. I am unaware of the position of the defendants in this action on this issue; therefore, it will be difficult to fashion a realistic timetable. However, a new deadline must be given to set this action down for trial.
[75] Therefore, I am ordering the following tight timetable to this action which contemplates two scenarios depending on whether there is consent to an order that the actions be tried together:
If not on consent, within 30 days of the date this decision is released, the plaintiffs shall schedule a motion for an order that this action and the solicitor’s negligence action be tried together;
If all parties in both actions consent to the actions being tried together, counsel for the plaintiffs shall take immediate steps to obtain said order, and while he is doing so, examinations for discovery shall be scheduled and completed by October 17, 2016, undertakings shall be satisfied within 60 days of the date of discovery, and any discovery motion shall be scheduled within 45 days of the date undertakings were to be satisfied;
If the parties do not consent to the said order, then the plaintiffs shall include relief in their motion that a timetable be imposed for completion of discoveries, undertakings, discovery motions and mediation;
This action shall be set down for trial by July 31, 2017.
Costs
[76] Ordinarily the plaintiffs would be entitled to costs of the motion given their success; however, as they did not satisfy all of the Reid factors and considering that Master Hawkins had granted the plaintiffs a significant indulgence when he allowed the action to proceed, it is my view that it was reasonable for the defendants to oppose this motion.
[77] For those reasons, I decline to order costs to the plaintiffs. In my view, it is fair and reasonable that all parties bear their own costs of this motion.
(original signed)
Master Lou Ann M. Pope
Date: June 28, 2016