Court File and Parties

COURT FILE NO.: CV-09-379191 MOTION HEARD: 20160602 REASONS RELEASED: 20160729 SUPERIOR COURT OF JUSTICE – ONTARIO

BETWEEN:

Muralitharam Subramanian Plaintiff

and

Ravi Bhawaneesingh and Patricia Bhawaneesingh Defendants

BEFORE: MASTER D. E. SHORT

COUNSEL: I. Liebner for moving plaintiff F (905) 629-8041 A. Wilkinson for defendants F (416) 367-8821

RELEASED: July 29, 2016

Reasons for Decision

I. Nature of Motion

[1] This is a 2009 action arising out of a June 2007 motor vehicle accident.

[2] Apparently the action arises out of injuries the plaintiff sustained when his vehicle was struck on the driver’s side by a left-turning vehicle driven by one of the defendants.

[3] The action was struck off the trial list on July 25, 2014.

[4] The plaintiff filed a Notice of Motion on November 10, 2015 for an order granting leave to restore this action to the trial list.

[5] The sole affidavit filed in support of the application is sworn by the lawyer having carriage of the file at the firm acting for the Plaintiff.

[6] Counsel for the defendants opposes the granting leave in this case.

II. The Facts

[7] Examinations for Discovery were held in 2011. A mediation was held in August 2013. The mediation did not prove to be successful.

[8] It appears that undertakings were addressed in 2013, and no motions in that regard were required.

[9] The Trial Record was filed by the plaintiff in May of 2013.

[10] In September of 2013 the plaintiff’s lawyers received a Notice of Assignment Court from the trial scheduling office which directed that pre-trial and trial dates were to be scheduled by July 25, 2014.

[11] In October 2013, the plaintiff completed the relevant portions of the pre-trial certification form and delivered it by email to the defendant’s counsel for completion. On or about October 31, 2013 the defendant delivered a completed pre-trial certification form to the plaintiff.

[12] That pre-trial certification form, as completed by defendant’s counsel, indicated that the action was to be placed on the Short Trial List and scheduled for a 10 day jury trial.

[13] However, it would seem that the plaintiff’s firm failed to obtain pre-trial and trial dates prior to the July 25, 2014 date established by the Trial Scheduling Office in its notice of September 3, 2013.

[14] That failure resulted in the action being administratively struck from the Trial List.

III. The Problem

[15] I have some difficulty determining with any degree of certainty, the reasons why, what seemed to be a relatively routine action, was not properly set down prior to July 25, 2014.

[16] Clearly the form of Notice given by the trial office, pursuant to the Practice Direction then in force, contained a reminder, which read:

“If it is determined at the pre-trial conference your estimated trial length is accurate, then the trial date arranged will be confirmed. If, however, the length of trial has been underestimated, the trial date may have to be changed.”

[17] As noted above, counsel for the defendants had indicated a total trial length of 10 days in their filed pre-trial form, dated October 29, 2013. However, a letter raising concerns with regard to the probable length of the trial was subsequently generated on January 7, 2014 by the lawyer with carriage for the defendants.

[18] That letter commenced with these practical observations:

“ As a result of recent Toronto pre-trials in other matters, we had cause to review the pre-trial forms completed in this matter. As you know this matter has been set upon the short trial list and scheduled for ten days before a jury. Given the comments we have received from the bench in other matters, we believe it would be prudent to revisit the length of this trial so as to avoid unnecessary delay.

In this matter, the court has been advised that the plaintiff requires five to six days to submit its case before a jury, however, the same forms indicate that the plaintiff intends to call seven witnesses and two experts. Your client requires the use of an interpreter and we presume you will be calling family members who also may require an interpreter.

As you know, cases before a jury require more time than with a judge alone. The selection of a jury, opening and closing submissions including any witness challenges will require a minimum of three days. It is likely that the examination in chief and cross-examination of the plaintiff will take 2 to 3 days. It is doubtful that nine witnesses on behalf of the plaintiff can be completed in the remaining time period, that does not even include the witnesses called on behalf of the defendants.

We are of the view that this action is going to require more than ten days and ought to be placed on the long trial list.

If this matter is placed on the short trial list we will be faced with a pre-trial that is already almost a year away and a trial date likely in 2015/2016. It is in our view likely that the first action the pre-trial judge will take is to strike the matter from the short trial list and request your firm to set the matter to the long trial list, which will cause another delay. ”[my emphasis]

[19] Thus it would seem that counsel for the defendants is clearly anticipating a potential striking of the case from the trial list and is seeking to avoid delays arising from the restoration process.

[20] The affidavit filed before me on behalf of the plaintiff is not very helpful in explaining the actions and response of counsel to this outline of the situation.

[21] The salient portion (with my emphasis) reads:

10. The plaintiff was of the position that this matter should remain on the short trial list, as indicated on the original Trial Certification Form. However, continuing disagreement between parties as to whether the matter would require shorter long trial causes significant delay in moving the action forward.

11. In the interest of preventing further delay, on August 31, 2015, the plaintiff capitulated that the action would require more than ten (10) trial days and can therefore be placed on the long trial list. ....

12. Meaningful steps have been taken, and continue to be taken, to prosecute this claim, and it was never intentionally delayed or abandoned.

[22] What is somewhat mystifying is the earlier single sentence paragraph of the affidavit in support, which read simply:

8. Unfortunately, the pre-trial and trial dates were not scheduled prior to July 25, 2014, and this matter was struck off the trial list.

[23] I was unable to find any explanation as to why the Notice of Assignment Court dated September 3, 2013 was not properly handled prior to the expiry date of July 25, 2014.

[24] For no apparent reason, the plaintiffs law firm failed to respond to a succession of letters following the initial January 7, 2014 letter from the defendant’s counsel asking for response. The plaintiffs’ firm received numerous letters from the defendants’ counsel advising of their view that this action would require more than ten trial days, the last of which was dated January 20, 2015. There is no indication that any response to any of this correspondence was ever sent. Nor why it was consistently ignored.

[25] It would seem to me that perhaps a decision was made in August 2015 to consent to the matter being placed on the long trial list.

[26] While there is no indication in the plaintiff’s material as to how or why they first became aware that the action of been struck off the trial list. I speculate that when the decision was made to change it from a short trial to long trial, they contacted the trial office only to discover that the matter had already been struck from the trial list many months previously.

[27] It would seem that both parties assumed that the action had been set down for a short trial and that they were simply awaiting notice of a pretrial conference in response to their certification forms when in fact it had already been struck almost 6 months earlier.

[28] A student wrote on August 31, 2015 to the defendants counsel indicating that she had been asked,

“to bring a motion to restore the subject, file to the trial list. I wanted to write to you beforehand to see if you would consent on the basis that we agreed to put the lot matter on the long trial list. Please let me know of any thoughts or comments.”

[29] The brief e-mail response, transmitted 18 minutes after the plaintiff’s email was sent, read as follows:

“As set out in our November 28, 2014 and January 20, 2015, correspondence, we will not provide our position until we receive the Plaintiff’s Motion materials. Needless to say, we expected the materials quite some time ago.

Parenthetically, we continue to be of the view that putting the matter, on the long trial list is an absolute certainty. On the other hand, given the delay, the plaintiff’s motion to restore the action is questionable .” [my emphasis]

[30] Against that background, the defendants have resisted the plaintiffs motion to restore this matter to the trial list.

[31] Is such resistance justified in this case?

IV. Changes to the Rules

[32] While this action was off the Trial List amendments to the Rules of Civil Procedure were enacted. The applicable previous portions read:

48.11 Where an action is struck off a trial list, it shall not thereafter be placed on any trial list except,

(a) in the case of an action struck off the list by a judge, with leave of a judge; or

(b) in any other case, with leave of the court.

[33] The, now in force, version of Rule 48.14 (with my emphasis added) reads in part:

Dismissal of Action for Delay

48.14 (1) Unless the court orders otherwise, the registrar shall dismiss an action for delay in either of the following circumstances, subject to subrules (4) to (8):

1. The action has not been set down for trial or terminated by any means by the later of the fifth anniversary of the commencement of the action and January 1, 2017.

2. The action was struck off a trial list and has not been restored to a trial list or otherwise terminated by any means by the later of the second anniversary of being struck off and January 1, 2017. O. Reg. 170/14, s. 10.

[34] Here the second anniversary would occur on July 25, 2016. It is important to note the restrictions on the applicability of the above provision. Four of the new controlling subrules read:

Timetable

(4) Subrule (1) does not apply if, at least 30 days before the expiry of the applicable period referred to in that subrule, a party files the following documents:

1. A timetable, signed by all the parties, that,

i. identifies the steps to be completed before the action may be set down for trial or restored to a trial list, as the case may be,

ii. shows the date or dates by which the steps will be completed, and

iii. shows a date, which shall be no more than two years after the day the applicable period referred to in subrule (1) expires, before which the action shall be set down for trial or restored to a trial list.

2. A draft order establishing the timetable. O. Reg. 170/14, s. 10.

(5) If the parties do not consent to a timetable under subrule (4), any party may, before the expiry of the applicable period referred to in subrule (1), bring a motion for a status hearing.

(6) For the purposes of subrule (5), the hearing of the motion shall be convened as a status bearing.

(7) At a status hearing, the plaintiff shall show cause why the action should not be dismissed for delay, and the court may,

(a) dismiss the action for delay; or

(b) if the court is satisfied that the action should proceed,

(i) set deadlines for the completion of the remaining steps necessary to have the action set down for trial or restored to a trial list, as the case may be, and order that it be set down for trial or restored to a trial list within a specified time,

(ii) adjourn the status hearing on such terms as are just,

[35] In my view the drafters of the amended Rule have indicated a more liberal approach to the restoration of matters struck from the trial list. I believe these amendments ought to influence my approach to the issues in this case. However I have also considered relatively recent guidance of the Court of Appeal in two particular cases.

V. Caselaw Considered

[36] In their factum the resisting defendants rely upon Nissar v. Toronto Transit Commission, 2013 ONCA 361; 3 Carswell Ont 7174; 115 OR (3d) 713; 309 O.A.C 8; [2013] OJ. No. 2553. They cite this case in support of the proposition that to restore an action to the trial list, the plaintiff must show an acceptable explanation for the delay and no non-compensable prejudice to the defendant. In Nissar the court refused to restore the action struck from the list seven years earlier.

[37] Counsel for the defendants asserts that finalized pretrial certification form was never filed by the plaintiff and that no acceptable explanation for this situation has been provided.

[38] Counsel for the plaintiffs relies upon the more recent decision of the Court of Appeal in Carioca's Import & Export Inc. v. Canadian Pacific Railway Ltd., 2015 ONCA 592, [2015] O.J. No. 4569. There R.J. Sharpe, P.D. Lauwers and K.M. van Rensburg JJ.A. dealt with a refusal of the judge at first instance to return a matter to the trial list on the basis of delay.

[39] Justice van Rensburg writing for the Court made a number of useful observations. For example (with my emphasis added):

48 It is a waste of resources to have trials adjourned on or near the trial date, at a juncture when court time that has been set aside may not be able to be filled with other matters. The ability to remove and restore actions to a trial list is part of the function of the local court to manage the timing and progress of civil actions commenced within its jurisdiction in the context of its available resources. If the test to restore an action to the trial list is applied too rigidly, "speak to" and other attendances where matters may be struck will become lengthy and contentious, preventing efficient case management. Therefore a proper delay analysis does not consider the conduct of an action in a vacuum.

(ii) Prejudice

49 The issue of prejudice is a factual question. The plaintiff bears the onus of demonstrating that the defendant would suffer no non-compensable prejudice if the action were allowed to proceed. The mere passage of time cannot be an insurmountable hurdle in determining prejudice, otherwise timelines would become inflexible and explanations futile.

50 A defendant is not required to offer evidence of actual prejudice. However, the court is entitled to consider the conduct of the defendant in light of its assertions of prejudice. As Weiler J.A. noted in Fuller, it is an error for a judge considering dismissal for delay to fail to consider the respondent's conduct in relation to the question of prejudice: at para. 39. [: H.B. Fuller Co. v. Rogers (c.o.b. Rogers Law Office), 2015 ONCA 173, 330 O.A.C. 378]

[40] Turning to responsibility for delay and the appropriate consequences the court continued:

51 The motion judge's analysis focussed mechanically on whether blame could be attributed to the appellant at each stage of the litigation. Once he found delay, he failed to go on to weigh the evidence and evaluate whether the explanation provided was reasonable. Had he done so, he would have taken into account important factors such as the circumstances in which the action came to be struck from the trial list and the fact that the case was now ready for trial.

52 Applying too exacting a standard for restoring an action which has been struck from the trial list may well hinder the objective of an efficient justice system, as parties and counsel would argue over keeping matters on the trial list for fear that, once struck, they might never be restored. Fighting highly contested motions over cases being struck and restored to the trial list is not an effective use of scarce judicial and legal resources. Ontario courts are actively discouraging a "motions culture" among counsel, and the Supreme Court of Canada has called for a "shift in culture", citing the need for a process that is proportionate, timely and affordable: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 28.

53. While this court has stated frequently that the plaintiff bears the primary responsibility for moving a case forward, it has also acknowledged that the conduct of a defendant is a factor, especially where a plaintiff encounters some resistance when trying to move the action along: 1196158 Ontario Inc., at para. 29. The suggestion that it is normal and acceptable for a defendant, if not to actively delay, to simply wait for the plaintiff to make the next move, may be based on a conventional view of litigation strategy. The objectives of timely and efficient access to justice, and effective use of court resources require all parties to play their part in moving actions forward, and for counsel to act in a way that facilitates rather than frustrates access to justice: Hryniak, at para. 32. For these reasons, although the burden of proof on the motion is on the plaintiff, the conduct of all parties in relation to the litigation is relevant in determining whether to restore an action to the trial list.

54 The motion judge's approach here focussed almost exclusively on the appellant's conduct, and did not consider the overall dynamics of the litigation. This resulted in an imbalanced view of at least four aspects of the appellant's actions. First, at the time the motion below was heard, the case was ready to proceed to trial. ….Keeping an action that is ready for trial off the list is punitive rather than efficient. …. Third, the appellant had never lost sight of the need to restore the action to the trial list, had brought its motion reasonably promptly after the action had been struck, and, as the motion judge observed "had no motive to delay the action". Finally, the respondent had not indicated any serious concerns about the pace of the litigation until it opposed the motion to restore the action to the trial list. [my emphasis throughout]

[41] In considering Nissar I have stressed these portions of the Court’s clarification in Carioca’s:

55 The first part of the Nissar test involves a consideration of any relevant delay, but asks whether an "acceptable explanation" for any such delay has been provided. The context of the action and any other relevant factors that are specific to the case must be considered. These will include the overall progress of the action before it was listed for trial, the circumstances of how the action came to be struck from the trial list, and the conduct of all parties. Procedural rules cannot be mechanically applied but have to be interpreted in a contextual manner that pays heed to all relevant circumstances and consequences.

[42] I accept the plaintiff’s response to the potential prejudice asserted by the Defendants:

20. The only possible prejudice identified by the Defendants' counsel… is that of pre-judgment interest accruing due to the delays in this action. It is of importance to note that, should the accrual of pre-judgment interest be found to be prejudicial to the Defendants, it is compensable by nature and does not meet the test as outlined by the Ontario Court of Appeal to deny the restoration of an action to the trial list.

[43] I also find persuasive the sworn conclusion:

25. Having started the lawsuit, completed Examinations for Discovery, and completed mandatory mediation, neither I nor the Plaintiff, had any reason not to want the action set down for trial and concluded.

VI. Disposition

[44] I am therefore satisfied this is an appropriate case to restore pursuant to Rule 48 to the trial list and so order.

[45] Nevertheless, the plaintiff is being granted an indulgence. Conversely, I am not satisfied that the Defendants opposition to an immediate restoration was appropriate in this case.

[46] In such circumstances, I feel the most appropriate order is for the costs of this motion, fixed at an all-in amount of $3000, to be in the cause of the main action.

R. 144/DS Master D.E. Short