The Canada Trust Company, Trustee v. 2054509 Ontario Limited et al., 2016 ONSC 4341

COURT FILE NO.: 07-CV-9338CM DATE: 20160629

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

THE CANADA TRUST COMPANY, TRUSTEE Plaintiff – and – 2054509 ONTARIO LIMITED, ANTHONY NEHME, JOSEPH NEHME, TEDDY PIERRE DAHER, BOULOS DAHER and HENRIETTE DAHER Defendants

Counsel: John H. McNair, Counsel for the Plaintiff David Silver, Counsel for the Defendants Boulos Daher and Henriette Daher

HEARD: June 20, 2016

THOMAS J.

DECISION ON MOTION

The Motion

[1] The plaintiff, The Canada Trust Company, Trustee (“Canada Trust”) brings this motion relying upon Rule 37.14 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, to set aside the Registrar’s Dismissal Order of May 3, 2013. The order administratively dismissed this action pursuant to former Rule 48.14.

Background

[2] It is clear that the decision as to whether or not a dismissal order should be set aside is a contextual one. As a result, due to the lengthy history of this litigation, this section must be set out in some detail. The content of the background is derived to a large extent from the uncontested factual sections of the factums filed.

[3] Canada Trust is the trustee for a self-directed mortgage managed as an investment for the R.R.S.P. account of Joseph Sasso (“Sasso”).

[4] The defendants, Anthony Nehme and Joseph Nehme are brothers. Together with their cousin, Teddy Pierce Daher, they had plans to go into business together.

[5] In 2004, they acquired a property at 1214 Drouillard Road, Windsor, Ontario. It was their plan to renovate the property but they needed money. They transferred the property to the defendant, 2054509 Ontario Limited and obtained a $180,000 mortgage from Canada Trust who was investing Sasso’s money.

[6] As security, they pledged four separate pieces of property which included 964 Lincoln Road. The Lincoln Road property was owned by the defendants, Boulos Daher and Henriette Daher for their son, Teddy. Boulos and Henriette Daher signed the mortgage. It seems uncontested that Boulos and Henriette Daher are of Lebanese decent, elderly and have a limited knowledge of the English language.

[7] All defendants were represented by a lawyer, John Paul Corrent (“Corrent”) who acted for them in this mortgage transaction. Boulos and Henriette Daher did not receive independent legal advice. The mortgage was executed on September 27, 2004. By September 24, 2006, the business venture had failed and the mortgage was in default.

[8] The statement of claim in this action was issued June 15, 2007 by Corrent. The statement of defence for Boulos and Henriette Daher was delivered August 3, 2007 by Gino Paciocco (“Paciocco”). The statement of defence pleads non est factum.

[9] All defendants but Boulos and Henriette Daher are bankrupt and default judgment in this action has been obtained against them.

[10] On February 18, 2008, new counsel for Boulos and Henriette Daher, Crista Rea, informed Corrent that she intended to move for an order removing Corrent as solicitor of record for the plaintiff as he was clearly in a conflict. Accordingly, a case conference initially scheduled for April 27, 2009 was adjourned.

[11] On June 3, 2009, the plaintiff terminated its retainer with Corrent and retained Gregory Wrigglesworth (“Wrigglesworth”).

[12] Boulos and Henriette Daher thereafter retained Claudio Martini of Martini Barile Marusic LLP (“Martini”).

[13] On November 12, 2009, Martini issued a third party claim against Corrent, seeking contribution and indemnity. Boulos and Henriette Daher maintained their claim that they have poor English language skills and alleged that Corrent:

(i) failed or neglected to properly explain the nature of the documents they signed;

(ii) misrepresented the nature of the documents they signed; and

(iii) acted in a conflict of interest.

[14] On April 23, 2010, a case conference timetable was approved which required that both the main action and the third party claim be set down for trial by January 31, 2011.

[15] Corrent retained Mason Greenaway (“Greenaway”) who delivered a statement of defence to the third party claim on April 26, 2010, more than five months after the third party claim was issued.

[16] In March 2011, the matter proceeded to examinations for discovery. However, following completion of discoveries, the progress of the action was again delayed pending the disposition of motions and appeals in the prosecution of the third party claim. On March 30, 2011, Greenaway informed Martini that he intended to amend the defence to the third party claim to plead a limitations defence, as the third party claim had been issued more than two years after service of the statement of claim. Greenaway sought Martini’s consent and provided him with a form of consent for execution and the proposed amended statement of defence. Martini did not respond.

[17] Greenaway served Martini with a motion for summary judgment to dismiss the third party claim on July 20, 2011. Greenaway’s motion was scheduled to be heard on January 23, 2012. In the interim, a status hearing scheduled for October 28, 2011 was adjourned to March 2, 2012.

[18] The third party’s motion for summary judgment did not proceed on January 23, 2012. On January 18, 2012, Martini served responding materials in which he took the position that the motion was premature in the absence of an amended defence, pleading the Limitations Act, 2002, S.O. 2002, c. 24, Schedule B. When Wrigglesworth learned of the adjournment of the summary judgment motion, he wrote to Martini and Greenaway expressing his concern regarding the impact of this further delay on the prosecution of the main action.

[19] On March 2, 2012, a proposed timetable was endorsed at the status hearing which required that a completed Form 24.1 identifying a mediator be filed with the mediation coordinator by November 30, 2012 and that the matter be set down for trial by February 28, 2013.

[20] The motion to amend the third party’s defence to plead the limitation period was finally argued on August 10, 2012, almost a year after service of Greenaway’s motion for summary judgment. Maria Marusic (“Marusic”) had, by then, assumed carriage of the file for the Boulos and Henriette Daher. On November 29, 2012, Master Pope issued reasons, granting the requested amendment.

[21] On November 30, 2012, Marusic’s assistant informed Wrigglesworth that Marusic was not prepared to proceed with mediation at that time and requested that the selection of a mediator be extended for six months. Wrigglesworth wrote to the court requesting an extension of the deadline to appoint a mediator to May 30, 2013. The requested extension of the deadline to appoint a mediator went beyond February 28, 2013, which was the date upon which the action was to be set down for trial, a fact that counsel seemed to miss.

[22] Boulos and Henriette delivered a Notice of Appeal of Master Pope’s decision on December 7, 2012. The appeal was scheduled to be heard on September 23, 2013. In the interim, on May 3, 2013, and pending the hearing of Boulos and Henriette’s appeal of Master Pope’s decision, both the main action and the third party proceeding were administratively dismissed by the Registrar because the action and the third party proceeding were not set down for trial by February 28, 2013 as directed in the timetable contained in the status hearing endorsement, dated March 2, 2012. Wrigglesworth immediately informed the plaintiff that the main action had been administratively dismissed.

[23] Wrigglesworth was unaware that the third party proceeding had also been dismissed, although that should have been assumed. On October 16, 2013, he wrote to Martini and Greenaway seeking information as to the disposition of the third party proceeding.

[24] On October 21, 2013, Greenaway informed Wrigglesworth that the third party claim had been administratively dismissed and that the third party had agreed to waive any claim for costs of the proceeding in exchange for the defendants’ agreement to abandon their appeal of Master Pope’s order. Marusic also wrote to Wrigglesworth, confirming that the third party proceeding had been administratively dismissed.

[25] It was not until February 25, 2014 that Wrigglesworth wrote to Marusic seeking the defendants’ consent to set aside the administrative dismissal of the main action and advising her of his intention to bring the within motion. Marusic responded on March 3, 2014 refusing consent.

[26] The within motion was served on April 13, 2015, originally returnable on May 12, 2015.

[27] Wrigglesworth has deposed and testified, on cross-examination, that his assistant was responsible for inputting significant dates into the firm’s paper and electronic tickler system. Wrigglesworth further deposed and testified that his assistant left on maternity leave in February 2013 and that he had three assistants, including a brief return of his original assistant, between February 2013 and January 2014, thereby impairing the progress of his files.

The Law

[28] Rule 37.14(1) and (2) state the following:

37.14(1) A party or other person who,

(a) is affected by an order obtained on motion without notice;

(b) fails to appear on a motion through accident, mistake or insufficient notice; or

(c) is affected by an order of a registrar,

may move to set aside or vary 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.

(2) On a motion under subrule (1), the court may set aside or vary the order on such terms as are just.

[29] In deciding if I should set aside the order of dismissal, I must consider the four-pronged test described in Reid v. Dow Corning Corp. (2001), 11 C.P.C. (5th) 80 (Ont. Master) at para. 41, rev’d on other grounds Reid v. Dow Corning Corp. (2002), 48 C.P.C. (5th) 93 (Ont. Div. Ct.) (Reid):

(1) Explanation of the Litigation Delay: The plaintiff 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. She must satisfy the court that steps were being taken to advance the litigation toward trial, or if such steps were not taken to explain why.... If either the solicitor or the client made a deliberate decision not to advance the litigation toward trial then the motion to set aside the dismissal will fail.

(2) Inadvertence in Missing the Deadline: The plaintiff or her solicitor must lead satisfactory evidence to explain that they always intended to set the action down within the time limit set out in the status notice, or request a status hearing, but failed to do so through inadvertence. In other words the penultimate dismissal order was made as a result of inadvertence.

(3) The Motion is Brought Promptly: The plaintiff must demonstrate that she moved forthwith to set aside the dismissal order as soon as the order came to her attention.

(4) No Prejudice to the Defendant: The plaintiff must convince the court that the defendants have not demonstrated any significant prejudice in presenting their case at trial as a result of the plaintiff’s delay or as a result of steps taken following the dismissal of the actin.

[30] The party seeking to set aside the order need not satisfy all four Reid factors. The judge must apply a contractual approach considering case specific factors as well to arrive at a just result in the particular circumstances of the case: see Scaini v. Prochnicki, 2007 ONCA 63; Marché D’Alimentation Denis Thériault Ltée v. Giant Tiger Stores Limited, 2007 ONCA 695; H.B. Fuller Company v. Rogers, 2015 ONCA 173, para. 21, (Fuller).

[31] In Kara v. Arnold, 2014 ONCA 871 (Kara), the Court applied a two-part test that was conjunctive. The plaintiff needed to show an acceptable explanation for the delay and that the defendant would suffer no non-compensable prejudice if the action proceeded.

[32] In Fuller, Weiler J.A. concluded that neither test was exhaustive, the entire context must be considered to arrive at a just result: see Fuller, at para. 23. That just result is to be achieved by considering the conduct of both parties to the litigation: see Aguas v. Rivard Estate, 2011 ONCA 494, at paras. 18-19, 21, (Aguas); and, Fuller, at para. 23.

[33] In Fuller, at paras. 25-28, Weiler J.A. commented upon the tensions at play in assessing the underlying circumstances of each individual case:

[25] The factors that guide the court’s choice between ending the plaintiff’s action before trial and forcing the opposite party to defend the case despite the delay require a judge to resolve the tension between two underlying policies. The first is that civil actions should be decided on their merits. The second is that civil actions should be resolved in a timely and efficient manner in order to maintain public confidence in the administration of justice: Kara, at para. 9; Hamilton (City), at paras. 20-21; Marché, at para. 25.

[26] When reviewing a registrar’s dismissal for delay under the former rule 48.14, the weight of authority from this court has leaned towards the first policy consideration. As Laskin J.A. stated in Hamilton (City), at para. 20, quoting with approval the motion judge’s comment, “[T]he court’s bias is in favour of deciding matters on their merits rather than terminating rights on procedural grounds.”

[27] The court’s preference for deciding matters on their merits is all the more pronounced where delay results from an error committed by counsel. As the court stated in Habib, at para. 7, “[O]n a motion to set aside a dismissal order, the court should be concerned primarily with the rights of the litigants, not with the conduct of their counsel.” In Marché, Sharpe J.A. stated, at para. 28, “The law will not ordinarily allow an innocent client to suffer the irrevocable loss of the right to proceed by reason of the inadvertence of his or her solicitor” (citations omitted).

[28] In determining whether to reinstate an action that has been dismissed for delay, keeping in mind the above observations, the court must consider the rights of all the litigants. This necessarily requires consideration not only of the plaintiff’s right to have its action decided on its merits, but also consideration of whether the defendant has suffered non-compensable prejudice as a result of the delay, whether or not a fair trial is still possible, and even if it is, whether it is just that the principle of finality and the defendant’s reliance on the security of its position should nonetheless prevail. See e.g. 119, and Wellwood v. Ontario Provincial Police, 2010 ONCA 386, 319 D.L.R. (4th) 412.

[34] Having focussed on that exceedingly helpful summary of the law set out by Weiler J.A. above, let me now turn to its application to this case.

Positions and Analysis

[35] The Reid factors have an appropriate application here:

(1) Explanation of the Litigation Delay

[36] There is no doubt that Wrigglesworth had instructions to see the matter through to settlement or trial. This is not a case where “the Solicitor put the file in abeyance and intentionally and stubbornly refused to proceed with the action (Marché, at para. 26) or where the delay was intentional (Wellwood, at para. 74)”: see Aguas, at para. 16.

[37] In considering the overall time period between the issuance of the statement of claim and the service of this motion (June 15, 2007 – April 13, 2015) different concerns arise. Effectively, it took two years (2007 – 2009) for Corrent to realize he was in a hopeless conflict and had to pass the plaintiff’s file to new counsel. That is, despite the fact that opposing counsel was demanding he step aside. This occasioned an adjournment of a case conference with the Master from April 27, 2009 to September 18, 2009, with the Master fixing a deadline of May 29, 2009 for Corrent to get off the record. Defendant’s counsel argues that there can be no adequate explanation for this delay and that it should inure to the benefit of his clients’ position, and I agree.

[38] The next stage of litigation delay relates to the late issuance of the third party claim and the nature of the defence to that proceeding. The third party claim was not issued by the defendant’s second counsel, Martini, until over two years after the statement of defence had been delivered (August 3, 2007 – November 12, 2009).

[39] The third party claim against Corrent occasioned a scheduling of a motion to summarily dismiss that claim due to the expiration of the limitation period. Several conferences/status hearings accomplished little but did establish a timetable that ultimately set the date for setting down the action on February 28, 2013.

[40] The defence to the third party claim required an amendment to plead the limitation period. The defendants argued prejudice. The responsibility for delay during this phase of the litigation was summarized by Master Pope in her decision of November 29, 2012 at paras. 30-32 and 35:

[30] Essentially, some ten months passed between March 30, 2011, when Martini had notice of Corrent’s intention to amend his defence, to January 18, 2012 when Martini served the responding material, that Martini did not respond to Greenaway. It was at that time in January 2012 that Greenaway learned of the Daher’s position; that is, that no formal amendment to plead the Limitations Act had been made and; therefore, there was no basis to grant summary judgment of the third party action against Corrent.

[31] In my view, had Martini consented to the amendment of Corrent’s defence, he would have had sufficient time to add Paciocco as a third party within the applicable limitation period. There was clearly no issue raised by Martini that the request to amend Corrent’s defence was made within the applicable limitation period.

[32] The Dahers have provided no explanation why they did not consent to the proposed amendment, nor is there any explanation for the delay in responding to Greenaway’s request. On the other hand, there is ample evidence of Corrent’s reasonable and timely attempts to deal with the proposed amendment in advance of the expiry of the limitation period for the Dahers to have added Paciocco as a third party to this action.

[35] Based on the facts herein, it is my view that by their own actions, the Dahers created the prejudice that they now allege was caused by Corrent. This is what has been referred to in earlier cases as “self-created prejudice.”

[41] Marusic, now acting for the Dahers, appealed from Master Pope’s order. Throughout this time period, Wrigglesworth was writing to counsel clearly frustrated by the main action being placed on hold pending the resolution of the third party issues. He did not, however, press to move the main action forward clearly believing that was of little value without the resolution of the motion to dismiss the third party claim.

[42] Appropriately, counsel for the defendants concedes that this time period cannot be held against the plaintiff. There has been adequate explanation for the litigation delay for the time period from the date of discoveries in March 2011 to the date of the administrative dismissal on May 3, 2013 (two years, one month).

[43] The final period of concern commences with the May 3, 2013 dismissal. Wrigglesworth appropriately wrote to his client advising of the event on May 14, 2013. Wrigglesworth had seen a notice of dismissal for the main action but not the notice used at the same time dismissing the third party claim. For some reason, he waited until October 13, 2013 to inquire of Marusic and Greenaway as to the progress of the third party litigation. On October 21, 2013, Greenaway told him it was dismissed.

[44] It was not until February 25, 2014, that Wrigglesworth wrote to Marusic seeking consent to set aside the registrar’s dismissal. Marusic declined on March 3, 2014.

[45] It was not until 13 months later that Wrigglesworth served this motion. His affidavit and cross-examination speaks of inadvertence and confusion in the face of support staff changes in his office. There is no adequate explanation for this final period. This period, as well, occupies factor (3) in the Reid analysis.

(2) Inadvertence in Missing the Deadline

[46] I have no doubt that the plaintiff always wanted to press this matter forward. Wrigglesworth was aware of the timeline created by Master Pope and the direction to set the action down by February 28, 2013. It seems he became distracted by the pace of the third party proceeding and the demand by Marusic to delay mediation for a further six months, effectively taking it beyond the set down date.

[47] There was a failure of his tickler system and a lack of support due to staff turnover. Counsel for the defendants suggest while these are possible causes offered for missing the deadline, there is no satisfactory evidence offered. I disagree. I accept the explanation of Wrigglesworth and find the penultimate dismissal arose as a result of “inadvertence” in the broadest sense of that word: see Vaccaro v. Unifund Insurance Co., 2011 ONSC 5318, at para. 45.

(3) The Motion is Brought Promptly

[48] I heard no argument on this factor. It is conceded by the plaintiff’s counsel that this motion to set aside the dismissal was not brought promptly. I agree.

(4) Prejudice to the Defendants

[49] The onus is on the plaintiff to convince me that the defendants have suffered no significant prejudice in presenting their case at trial as a result of the plaintiff’s delay or as a result of steps taken following the dismissal of the action.

[50] A consideration of the passage of time from the date of the events giving rise to the litigation is an appropriate part of the prejudice analysis, within the contextual framework: see Wellwood, at para. 81; and, 744142 Ontario Ltd. v. Ticknor Estate, 2012 ONSC 1640, at para. 51.

[51] I would suggest that of the four Reid factors, the assessment of prejudice is the most important: see Farrar v. McMullen, [1971] 1 O.R. 709 (C.A.).

[52] Counsel for the defendants argues the presence of significant prejudice in three areas:

(a) the presumptive or inherent prejudice occasioned by the passage of an inordinate time period;

(b) the actual prejudice at the loss of causes of action and claims of indemnity against Corrent and Paciocco; and

(c) the actual prejudice as a result of the declining health of both defendants.

(a) Inherent Prejudice

[53] The defendants point out to me that the cause of action (mortgage default) occurred approximately 10 years ago while the defendants executed the mortgage 12 years ago. In Wellwood, at para. 71, the Ontario Court of Appeal cited with approval the reasons of Master Dash in Woodhealth Developments Ltd. v. Goldman, which were accepted by the Divisional Court:

...It is presumed that memories fade over time, and an inordinate delay after the cause of action arose or after the passage of [a] limitation period gives rise to a presumption of prejudice. Where there is a presumption of prejudice, the defendant need not lead actual evidence of prejudice and the action will be dismissed for delay unless the plaintiff rebuts the presumption. The presumption of prejudice may be rebutted... if the presumption is rebutted then the action may still be dismissed if the defendant leads convincing evidence of actual prejudice.

[54] Cronk J.A. went on to say, at para. 72:

[A]s the memories of witnesses fade over time, the passage of an inordinate length of time after a cause of action arises or after an applicable limitation period expires gives rise to trial fairness concerns. In my view this is so even when timely notice of the claim has been provided.

[55] Plaintiff’s counsel reminds me that most of the delay should be attributed to the actions of the defendants and the late prosecution of the third party claim. I should accept the prejudice by delay as for the most part “self-created prejudice” as it was described by Master Pope.

[56] It is clear that without more, a simple assertion that memories will be hampered by the passage of time will not be enough particularly where witness statements were taken or the action relies on document production: see Finlay v. Van Paassen, 2010 ONCA 204, at para. 29.

[57] In the context of these proceedings, there is more. The defence here is non est factum. The essential evidence for the defence must come from the memories of an elderly couple of Lebanese decent who have a limited knowledge of English. It must come from their memories of what happened upon the execution of legal documents before a lawyer 12 years ago. While a portion of the time expired here because of the pursuit of the third party claim, the nature of their defence and the overall time expended causes serious concern as to trial fairness.

(b) Losses of Causes of Action

[58] While this argument was forwarded by counsel for the defendants, it was conceded that it was not the strongest argument on prejudice. While it is true that upon dismissal of both the action and the third party claim Marusic agreed to release Corrent in exchange for a release on costs, there was built into those minutes of settlement an understanding that if the main action was revived the defendants would not attempt to proceed to claim contribution. I suspect strongly that Marusic understood the appeal was likely doomed to fail and that the limitation period would be a complete defence.

[59] In addition, as pointed out in the reasons of Master Pope, Martini should have recognized that he needed to claim against Paciocco for his failure to commence a third party proceeding before the limitation expired.

[60] In other words, the loss of these two claims against two separate lawyers acting for the defendants cannot be blamed on the delay caused by the plaintiff.

(c) Actual Prejudice – Declining Health

[61] Shortly before the argument on this motion, the defendants delivered an affidavit from Dr. Ryan Carlini. Dr. Carlini has been the family physician for the Dahers for three years. He states that he is familiar with their medical history and medication treatment.

[62] He states at paras. 4 and 5 of his affidavit:

4. I most recently met with Boulos Daher and Henriette Daher on May 21, 2016. Based on my direct examination of both patients, in my view, both of these patients have medical conditions which make them unfit to further participate in this proceeding.

5. I have prepared and signed a medical note that I have included in my affidavit for this Honourable Court.

Exhibit “A” – Medical Note to Boulos and Henriette Daher

[63] His medical note attached lists a number of significant ailments encountered by his two patients.

[64] In addition, there is an affidavit from Boulos Daher, sworn May 25, 2016. The relevant paragraphs are set out below:

2. I am 78 years old and in very poor health.

3. Since this action was dismissed against me, I have had serious medical issues. In June 2014, I underwent major surgery to remove a part of my lung because Dr. Elalem Abdusalem, diagnosed me (in May 2014) with lung cancer. The surgery was invasive, and I had and still have trouble breathing and sleeping. I complained of these symptoms to my doctor, Dr. Carlini.

4. As stated in my doctor’s note, I also suffer from major anxiety, lung cancer (which has now been removed), major heart problems (significant blockage which I take regular medication), chronic bronchitis, and other serious medical issues as set out in my doctor’s note. I also suffer from mental conditions including major depression and generalized anxiety disorder. I take a lot of medication to help keep me alive on a daily basis. Unfortunately, my medical conditions and personal health have continued to deteriorate over the past 2 years.

5. This claim has been extremely stressful for me. My memory is also not good at this time. I am physically weak, have poor concentration, and have a short attention span.

6. As a result, my doctor does not believe that I am fit to further participate in this proceeding or give testimony at trial in light of my health issues.

7. I am not able to read and write in English. As a result, before signing this affidavit, my affidavit was translated to me by my daughter, Vicky Azar, in my native language, Lebanese, to ensure that I understood and confirmed that the information is accurate.

[65] Counsel for the plaintiff made a decision not to prolong this matter further and chose not to cross-examine Dr. Carlini or Boulos Daher. He argues that no weight should be given to Dr. Carlini’s opinion in that there is no explanation of the standard imposed by the doctor to determine fitness. Neither is there any information as to which conditions lead to that opinion and no evidence that these conditions have arisen during the time period following the dismissal of the action.

[66] I have the sworn evidence of the treating physician of Boulos and Henriette Daher. I am not in a position to simply disregard it. Neither am I in a position to minimize the evidence of Boulos Daher on his ability to recall events and actively participate in his trial. I find the recent affidavits to be convincing evidence of actual prejudice.

[67] It is my duty now to weigh the four factors contained in the Reid test that I have set out above and recognize the two-part test described in Kara. I am satisfied the missed deadline was inadvertent but the plaintiff has failed to satisfy the other three Reid factors. Considering the Kara test, I find I do not have an acceptable explanation for the fullness of the delay but most importantly I find the defendants would suffer non-compensable prejudice if I allowed the trial to proceed at this point. There is inherent or presumptive prejudice and actual prejudice to the defendants in these circumstances.

Conclusion

[68] I return to the language used by Weiler J.A. in Fuller, set out above:

[28] In determining whether to reinstate an action that has been dismissed for delay, keeping in mind the above observations, the court must consider the rights of all the litigants. This necessarily requires consideration not only of the plaintiff’s right to have its action decided on its merits, but also consideration of whether the defendant has suffered non-compensable prejudice as a result of the delay, whether or not a fair trial is still possible, and even if it is, whether it is just that the principle of finality and the defendant’s reliance on the security of its position should nonetheless prevail.

[69] I find that there is prejudice to the defendants that would significantly affect trial fairness and further that there is a need to confirm the finality brought to this litigation by registrar’s dismissal of February 28, 2013.

[70] The motion of the plaintiff is therefore dismissed.

[71] I will receive written submissions from the parties on costs within 30 days of the release of these reasons, no more than five (5) typed pages each excluding attachments. If I have not received written submissions within 30 days, there will be no order as to costs.

“original signed and released, Thomas J.”

Bruce Thomas Justice

Released: June 29, 2016