Abou-Naoum v. Leon’s, 2016 ONSC 7341

CITATION: Abou-Naoum v. Leon’s, 2016 ONSC 7341

COURT FILE NO.: CV-11-25140

DATE: 2016-11-28

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: George Abou-Naoum, Plaintiff

AND:

Leon’s Furniture Limited, Defendant

BEFORE: A.J. GOODMAN J.

COUNSEL: P. Anderson, on behalf of the Plaintiff

K. McNeill-Keller for the Defendant

HEARD: November 23, 2016

ENDORSEMENT

[1] This is a motion to set aside the Registrar’s May 1, 2014 Order Dismissing the Action for Delay, (“the Order”).

[2] The Order was administratively issued by the Registrar due to the failure of Ivan Marini, then plaintiff’s counsel, to pass the trial record by April 1, 2014 in accordance with the June 18, 2013 Timetable and companion Order of Lofchik J.

[3] The issue in this motion is whether the plaintiff has met his onus to set aside the Order dismissing this action for delay.

[4] For the following reasons, the plaintiff’s motion is dismissed.

Background:

[5] The action arises out of the termination of an employment relationship between the plaintiff, George Abou-Naoum (“Abou-Naoum”) and the defendant, Leon’s Furniture Limited (“Leon’s”).

[6] Abou-Naoum’s employment with Leon’s was terminated for cause on June 28, 2010. On January 25, 2011, approximately seven months after the termination, the Plaintiff issued a Statement of Claim. On April 26, 2011, the defendant filed a Statement of Defence.

[7] On November 1, 2011, the plaintiff served the defendant a Notice of Examination for discovery for April 11, 2012. On April 2, 2012 and April 4, 2012, defendant’s counsel sought an adjournment of the scheduled discoveries as the plaintiff had failed to provide an Affidavit of Documents or a Discovery Plan. On April 5, 2012, plaintiff’s counsel consented to the adjournment and the defendant committed to send potential discovery dates. Plaintiff’s counsel did not contact defendant’s counsel until June 22, 2012. On July 9, 2012, the plaintiff served upon the defendant a revised Notice of Examination for November 1, 2012.

[8] On October 25, 2012, the defendant served its Notice of Examination and Affidavit of Documents on plaintiff’s counsel. In a letter attached to the service of these documents, defendant’s counsel noted that the plaintiff had yet to serve his Affidavit of Documents. On October 31, 2012, a day before the scheduled discoveries, at the plaintiff’s request, defendant’s counsel agreed to adjourn the discoveries as the plaintiff had failed to serve their Affidavit of Documents.

[9] On the same date, defendant’s counsel emailed plaintiff’s counsel to confirm a potential rescheduling of discoveries for December 7, 2012. Plaintiff’s counsel never responded and accordingly, on November 29, 2012, defendant’s counsel emailed plaintiff’s counsel to inform him that he had not responded to previous emails and had not yet delivered the Affidavit of Documents. Thus, December 7, 2012 was no longer a viable date on which to conduct discoveries. At the plaintiff’s counsel’s request, counsel redelivered the defendant’s Affidavit of Documents by email that same day.

[10] Between October 31, 2012 and May 23, 2013, a period of nearly seven months, no further communication was received by defendant’s counsel from Abou-Naoum or his counsel.

[11] During this intervening period, on March 4, 2013, the Registrar issued a Status Notice, requiring the parties to set down the action for trial. On May 23, 2013, nearly three months after the Status Notice was issued, another lawyer from the plaintiff’s counsel’s firm, Anne-Louise Cole, contacted defendant’s counsel to establish a status hearing timetable. Defendant’s counsel consented to this timetable, which required, inter alia: delivery of the plaintiff’s Affidavit of Documents by September 30, 2013; discovery of Abou-Naoum and discovery of a representative from Leon’s by October 31, 2013; mediation by February 28, 2014, and a date before which the action will be set down for trial on April 1, 2014. On July 22, 2013, Justice Lofchik approved this timetable on consent.

[12] On June 26, 2013, plaintiff’s counsel served upon the defendant a revised Notice of Examination for discovery for October 23, 2013.

[13] On September 16, 2013, defendant’s counsel requested an amendment of the status hearing timetable to delay the discoveries to November 2013 to accommodate a scheduling conflict. Plaintiff’s counsel consented and examinations for discovery were rescheduled for November 18, 2013.

[14] On October 16, 2013, over one and a half years after the original discovery dates, nearly one year after the defendant served its Affidavit of Documents, and contrary to the agreed-upon timetable, plaintiff’s counsel served the Affidavit of Documents.

[15] Examination for discovery of the plaintiff occurred on November 18, 2013. On December 20, 2013, plaintiff’s counsel served a further revised Notice of Examination for discovery for January 27, 2014. On January 27, 2014, the examination for discovery of a representative of Leon’s took place.

[16] On February 17, and again on March 4, 2014 defendant’s counsel contacted plaintiff’s counsel to inquire about the disclosure of certain documents that were considered relevant for the purposes of the parties’ without prejudice settlement discussions. Plaintiff’s counsel never responded.

[17] On May 1, 2014, the defendant received a notice from the Registrar dismissing the plaintiff’s action for failure of Abou-Naoum’s counsel to bring the action to conclusion or set the action down for trial.

[18] Between January 27, 2014 and August 21, 2014, a period of nearly eight months, no further communication was received by defendant’s counsel from either Abou-Naoum or his counsel. On August 21, 2014, more than three and a half months following the administrative dismissal, plaintiff’s counsel left a voicemail for the defendant’s counsel informing her that they would be bringing a motion to return the action on September 11, 2014.

[19] On August 27, 2014, defendant’s counsel spoke to plaintiff’s counsel and advised that there was a scheduling conflict for September 11, 2014 due to a pre-existing hearing. Ms. McNeill-Keller requested an explanation for the delays in order to consider whether it would consent to setting the matter back on the trial list. No reasonable explanation was provided by the plaintiff.

[20] The September 11, 2014 motion date was adjourned, returnable on one week’s notice. This adjournment also allowed the parties to engage in settlement discussions. On September 17, September 22, and September 25, 2014, defendant’s counsel attempted to reach plaintiff’s counsel to discuss the possible resolution of the file but received no response.

[21] Ms. McNeill-Keller was unable to reach plaintiff’s counsel until September 29, 2014. Mr. Marini informed defendant’s counsel that he would contact his client and get back to the defendant with respect to a response regarding either the latest settlement offer or the motion.

[22] Between September 29, 2014 and July 7, 2016, no further communication was received by the defendant from either Abou-Naoum or his counsel. On July 7, 2016, nearly 2.5 years after the Order administratively dismissing the action, plaintiff’s counsel wrote to defendant’s counsel to have the motion setting aside the Order return. The motion was set for the week of November 21, 2016.

Position of the parties:

[23] Following receipt of the Order on May 5, 2014, the plaintiff says that he proceeded to bring the motion to set aside same with a returnable date of September 11, 2014. The plaintiff submits that during this time, his counsel and defendant’s counsel engaged in settlement discussions. Accordingly, the motion was adjourned sine die to allow for these settlement discussions to occur. These settlement discussions did not result in an agreement.

[24] Due to plaintiff’s counsel, (Mr. Marini’s) medical issue and leave of absence, there was a disruption of communication between the parties. While the plaintiff’s interest in proceeding with the action continued, the file entered into a period of inactivity. Accordingly, the motion was not put back on the hearing list until Mr. Peter Anderson, plaintiff’s new counsel began working the file in mid- 2016. The matter was placed back on the hearing list to revive the action.

[25] Accordingly, Mr. Anderson submits that neither the failure to set the matter down for trial causing the action to be dismissed for delay, nor the failure to bring the motion back on the hearing list within an expedient period of time is the fault of his client. Throughout this litigation, Abou-Naoum has remained willing and interested in moving the matter forward to settlement or otherwise trial, and has not intended to cause any delay in this matter.

[26] With respect to the facts relating to the within motion, seemingly the only prejudice raised by the defendant is that the delay caused them to lose eight witnesses for the trial of this matter. The plaintiff relies on the jurisprudence to argue that this alleged prejudice position is insufficient to deny setting aside the Order. Any alleged loss of witnesses would be due to the defendant’s failure to take appropriate steps to alleviate the prejudice that they now assert, including by way of preserving the evidence such as interviewing those alleged witnesses to obtain affidavit evidence, as opposed to any delay on the part of Abou-Naoum.

[27] The plaintiff submits that in any event, the defendant has not provided any evidence as to why any of their alleged witnesses cannot be contacted to provide evidence, nor any reason why and how these witnesses are relevant to the action.

[28] Furthermore, the alleged delay was not “the product of a deliberate decision not to take any steps in these proceedings”, nor a case where the solicitor had deliberately put the file in abeyance due to lack of funds. At all times, the lawyers involved in the case acted in good faith under the unfortunate circumstances that befell Mr. Marini.

[29] The plaintiff submits that the case law favours the setting aside of the Order. Counsel submits that any delay in this case was due to inadvertence and that plaintiff’s counsel acted reasonably and as expeditiously as possible in the circumstances. Leon’s has not suffered or demonstrated actual prejudice caused by the alleged delay, as well as any sense of urgency to move the action along leading up to this point in the proceedings, thus undercutting the claim of prejudice.

[30] Ms. McNeill-Keller submits that after the filing of the Statement of Defence on April 20, 2011, little progress was made by the plaintiff for over two years to proceed with the litigation. After repeated attempts to schedule examinations for discovery throughout 2011 and 2012, on October 31, 2012, the plaintiff cancelled the discoveries one day before they were scheduled to occur. The defendant received no further communication from the plaintiff for nearly 7 months. This lack of communication occurred despite the defendant’s repeated requests to schedule examinations for discovery and the March 4, 2013 Notice of Status Hearing. Despite Lofchik J.’s June 18, 2013 Order and timetable, the plaintiff failed to meet certain of the deadlines imposed.

[31] Following the January 27, 2014 discoveries, the defendant received no further communication from the plaintiff for nearly 8 months. The defendant says that this lack of communication occurred despite Leon’s repeated attempts to engage in settlement negotiations following the conclusion of discoveries and the May 1, 2014 Order from the Registrar administratively dismissing the action.

[32] After repeated efforts by defendant’s counsel to reach plaintiff’s counsel on September 17, September 22 and September 25, 2014, the parties finally had a without prejudice discussion regarding settlement on September 29, 2014, at which point a motion setting aside the Order was adjourned. Plaintiff’s counsel agreed to seek settlement instructions. The defendant submits that this period is telling as no further communication was received from the plaintiff or his counsel for nearly 2 years, until a letter dated July 7, 2016.

[33] The defendant submits that this motion be dismissed because the plaintiff has not met his onus, had not provided a reasonable explanation for the delay, has not shown inadvertence and has continually been unacceptably dilatory in bringing this motion. The plaintiff has proceeded in a laggard fashion throughout the entire course of this proceeding. The defendants submit that the defence of the action has been irreparably prejudiced by witness departure from the company and would be unfairly prejudiced in their ability to defend this legal proceeding if resurrected. The action has not matured past the examination for discovery stage although over six years have elapsed since the plaintiff’s date of termination.

[34] The defendant submits that the evidence on the record does not show that the plaintiff has any genuine intention to prosecute his action or any reasonable explanation that would justify disturbing the Order. All the relevant factors weigh against setting aside the Order dismissing the action and, in the interests of justice and the principles of finality, the plaintiff’s motion ought to be dismissed.

Legal principles:

[35] A Registrar’s Order dismissing an action for delay may be set aside or varied on such terms as are just. In deciding whether or not to set aside a Dismissal Order, the Court will adopt a contextual approach and consider all relevant factors in arriving at a just decision. This includes the application of well-established principles known as the Reid factors, cited by the Court of Appeal with approval, in Marché D’Alimentation Denis Thériault Ltée v. Giant Tiger Stores Ltd., 2007 ONCA 695, [2007] O.J. No. 3872.

[36] The “Reid factors” originate from the case of Reid v. Dow Corning Corp. (2001), 11 C.P.C. (5th) 80 at para. 41 (Ont. S.C). These factors include:

(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 action.

[37] The test for preventing dismissal at a status hearing is also relevant here. Under that test, the plaintiff bears the burden to show an acceptable explanation for delay and that the defence would not suffer non-compensable prejudice: Faris v. Eftimovski, 2013 ONCA 360, at para. 32.

[38] In Scaini v. Prochnicki, 2007 ONCA 63, [2007] O.J. No. 299, at para. 26, the Court of Appeal rejected the notion that in order to set aside a Registrar's dismissal order, a moving party must satisfy each element of the four-part test in Reid.[^1]

Analysis:

[39] As mentioned, the plaintiff has the overall onus on this motion and must demonstrate that the Reid factors have been addressed. I accept that the plaintiff need not satisfy each element in Reid in order to have the Order set aside. I must not approach this issue on a rigid basis rather, through the lens of a more contextual analysis. Although I am mindful of the Court of Appeal’s discussion in Kara v. Arnold, 2014 ONCA 871 at para. 10 wherein Blair J.A. states: “In my view, little is to be gained by debating whether there is a bright line between the ‘contextual approach’ and the approach enunciated in later authorities such as Faris and 1196168 Ontario Inc. v 6274013 Canada Ltd.”

[40] I am also cognizant that Rule 2.01 reflects the general principle found in Rule 1.04(1), which guides the interpretation of all the rules. Ultimately, I will exercise my discretion upon a consideration and weighing of the relevant factors and the evidence and will attempt to balance the interests of the parties.

[41] Explanation of the Litigation delay: In civil proceedings, the plaintiff has the obligation to drive the legal proceeding forward. In addressing the issue of litigation delay, the plaintiff must adequately explain the delay in the progress of the litigation from the start of the action until the deadline for setting down the trial and must satisfy the Court that steps were being taken to advance the litigation towards trial. The cases distinguish between actions which have been deliberately held in abeyance and those in which steps are being taken to move the litigation along, albeit slowly.

[42] Over the course of the last six years, the plaintiff has been represented by counsel at Yachetti, Lanza & Restivo LLP (“the firm”). Mr. Ivan Marini, Ms. Anne-Louise Cole and now Mr. Peter Anderson have all appeared to have carriage of the file at different points in time, sometimes concurrently.

[43] Notwithstanding the fact that it appears that the plaintiff continued to be represented by counsel at all times material to this motion, the evidentiary record contains an affidavit from Mr. Marini which is outdated, sworn on August 21, 2014. There is neither affidavit evidence from Ms. Cole or Mr. Anderson regarding their role in the action as counsel nor is there any evidence from any lawyer that provides any explanation, let alone a reasonable explanation, for the various periods of delay post-September 2014.

[44] There is a brief affidavit filed from the plaintiff client dated August 29, 2016 in support of this motion. However, the affidavit is wanting in all material respects. Abou-Naoum deposes his “belief” that Mr. Marini was ill. No other information was provided. The client claims to have lost contact due to a medical issue. There are neither details of Mr. Marini’s alleged medical leave of absence nor is he able to in fact establish that such a leave of absence in fact occurred.

[45] Indeed, a plaintiff cannot meet the burden to explain delay by offering bald assertions without supporting documents: 1051841 Ontario Ltd. v. Toronto (City), 2014 ONSC 4327. Excusing delay on account of personal incapacity may require independent medical evidence or at a very minimum robust particulars to address a decision to set an administrative dismissal.

[46] In my opinion, there is no meaningful evidence from the plaintiff in support of his own motion which adds virtually nothing to the evidentiary record. It contains only unsubstantiated and hearsay evidence as to what might have happened to Mr. Marini. In seven short paragraphs, the plaintiff attempts to excuse nearly three years of delay through generic assertions. Notably, the plaintiff does not provide any evidence as to when - or even if - he was made aware of the dismissal order nor what steps he took as a result to contact his counsel and to ensure that the matter was advanced in a timely manner. Additionally, the plaintiff does not append or reference any documentary evidence, including correspondence, to prove that he took any steps to reach out to or communicate with Mr. Marini or any other lawyer at the firm at any point in time during the period of delay.

[47] Plaintiff’s counsel has placed considerable emphasis on the defendant’s actions or inaction during the initial segments of the litigation leading up to the Order. The plaintiff repeatedly blames the defendant for its conduct during this timeframe; for example, failing to move the matter along or the defendant’s unwillingness to scheduling timely examinations for discovery. With respect, this characterization is contrary to the evidence that I choose to accept.

[48] I do not find fault with Ms. McNeill-Keller’s insistence that examinations for discovery could not proceed without production of all the relevant documents as requested by the defendant in various letters to counsel. I do not accept the plaintiff’s position that the defendant did not request for an Affidavit of Documents or that Leon’s impeded the discovery process. Instead, it is the plaintiff who failed to respond to defendant’s counsel’s repeated requests. It appears that it was the plaintiff who adopted a strategy or approach which effectively stalled the claim.

[49] In oral argument, Mr. Anderson proffered several authorities with emphasis on the cases of Labelle v. Canada Border Service Agency, 2016 ONCA 187, [2016] O.J. No. 1166 and London (City) v. Osler Hosking & Harcourt LLP, [2016 O.J. No. 2239, (S.C.). In my view, both cases are distinguishable on their particular factual matrix. The latter case was considered in the context of the defendant’s motion to dismiss for delay.

[50] As expressed by the Ontario Court of Appeal in Wellwood v. Ontario (Provincial Police), 2010 ONCA 386, it is settled law that “under Ontario’s Rules for contemporary litigation, the party who commences a proceeding bears primary responsibility for its progress. For this reason, the initiating litigant generally suffers the consequences of a dilatory regard for the pace of the litigation”. Throughout the initial stages of the litigation, the plaintiff appeared not to have advanced the timely prosecution of this file.

[51] Of equal import is what is missing from the record. The affidavits provided by Mr. Marini and from Abou-Naoum do not address or explain the period of delay from September 2014 to September 2016. As mentioned, there is no affidavit whatsoever from anyone at the firm, and as such, there is absolutely no admissible evidence on the record to explain the delays in 2014 or the gap in prosecution of the action since September 2014.

[52] In Melanson v. ControlChem Canada Ltd. 2014 ONCA 82, the Court of Appeal at para. 3, in affirming my decision reported at 2013 ONSC 4297, stated: “Moreover, the explanation for the very significant delay in bringing the motion after the administrative dismissal is unsatisfactory”. I find that is the case here.

[53] Inadvertence in missing the deadline: If the plaintiff leads satisfactory evidence to demonstrate an intention to set the action down for trial within the time limit and, moreover, that the dismissal order was made as a result of inadvertence, the second Reid factor will be satisfied.

[54] Mr. Marini states that on October 16, 2013, he wrote to counsel to advise that the plaintiff had not received the defendant’s Affidavit of Documents. Mr. Marini fails to note that the defendant’s Affidavit of Documents was served on the plaintiff on October 25, and again on October 31, 2012.

[55] The principal evidence with respect to this factor is a one line statement in Mr. Marini’s August 22, 2014 affidavit that “through inadvertence, the dates to pass the Trial Record was mis-diarized in my calendar”. Mr. Marini fails to note that Ms. McNeill-Keller had repeatedly attempted to contact him prior to the dismissal of the action. In my opinion, Mr. Marini’s 2014 affidavit asserting that through inadvertence steps were not taken to advance the file or comply with the Order is far from compelling. Not only are there inconsistencies in the details provided by counsel, but the facts advanced on behalf of the defendant are vague with respect to the material issues before me.

[56] Further, Mr. Marini fails to provide an explanation nor does the evidentiary record explain why his colleague, Ms. Cole, or his client were similarly unaware of the dates. Ms. Cole first wrote to Ms. McNeill-Keller in May 2013 regarding the Notice of Status Hearing. She later telephoned defendant’s counsel in August 2014 to advise of the motion to set the action down for trial. Ms. Cole does not explain her own delay in managing the file before or after the dismissal.

[57] Mr. Marini was or is employed with a highly-respected law firm in Hamilton. He had the benefit of working with many competent counsel and support staff. Surely some explanation or evidence could have been proffered. There are still some unexplained or unanswered questions and considerable gaps in the evidence as it relates to the existence or use of the lawyer’s “reminder system” and who was tasked with appropriate monitoring or follow-up with this file.

[58] There is no dispute that in September 2014, counsel were in settlement negotiations. However, this is where plaintiff’s lawyer and entire firm dropped the ball. I accept the defendant’s evidence that discussions ensued and Ms. McNeill-Keller plainly left the matter with the plaintiff with a viable and potential offer on the table. I accept Mr. Treiber’s affidavit in support of the defendant’s position that having been in contact with counsel, they not only expected a clear explanation for the delay but due consideration of their offer to settle. However, what didn’t occur following these telephone contacts is perplexing.

[59] For the purpose of this motion, I note that Mr. Marini’s affidavit has not been updated or supplemented and the evidentiary record provides no explanation for his alleged medical leave of absence or for why no further steps were taken by him or anyone at his firm after September 2014 to advance the action in any way. If there was an unfortunate illness that befell counsel and required a leave of absence, (Mr. Anderson suggested that I ought to take judicial notice - which I demurred); why is it no one else in the firm was tasked with the matter?

[60] The plaintiff client’s pithy affidavit of November 29, 2016 presents no evidence of any affirmative steps on his part to proceed with the action, other than the bald assertion that he lost “contact with Mr. Marini due to what [he] believe[s] to be a medical leave of absence on his part”. The affidavit does not explain when the plaintiff learned of the dismissal of the action or what steps he took as a result to contact his counsel and to ensure that the matter was advanced.

[61] I accept that other counsel at the firm had involvement or were at least aware of the file at the requisite times and during the course of the Registrar’s status notice and dismissal. There is little or no satisfactory explanation as to why Ms. Cole or anyone else in the firm did not contact the client or opposing counsel, take immediate action or even furnish evidence to explain the delay from September 2014 to July 2016. This is hardly proof of inadvertence. In my view, the evidence speaks to a delay that was not unintentional.

[62] The Motion was brought promptly. This third Reid factor involves a consideration of whether the motion to set aside the dismissal order was brought promptly. Even a substantial delay in bringing the motion will not be considered sufficient to deny a motion to set aside a Registrar’s Order if a court is satisfied on a contextual basis that it is just that the Order be set aside.

[63] I do not accept the explanation - if indeed one was ever provided - as to why counsel did not take any immediate steps to protect his client’s interests after the telephone calls with Ms. McNeill-Keller. One would have reasonably expected that having received a settlement offer and discussing it with opposing counsel, that some action or follow-up would have been undertaken.

[64] The plaintiff delivered a Notice of Motion for the first time almost four months after the dismissal of the action. A Notice of Return of Motion was then delivered nearly 2.5 years after the dismissal. Even if I was to accept counsel’s assertion that the delay was due to Mr. Marini’s alleged leave of absence, it is unclear why Ms. Cole – a lawyer whom had previously stepped in for Mr. Marini – or any other lawyer, for that matter, was unable to deliver a Notice of Return of Motion until nearly two and a half years after the May 1, 2014 Order or 22 months from the last contact with opposing counsel. Again, I have no cogent evidence about the intervening period from September 2014 leading up to July 2016.

[65] I can reasonably conclude that neither Mr. Marini nor anyone else at the firm chose not to advise the client of the existence of the Order at least until July 2016, if at all. I am persuaded that Abou-Naoum’s assertion that he is willing to move the matter along to settlement or trial and that he has not lost interest, at this late stage, is entirely self-serving. I do not place much weight on it or Mr. Marini’s reference as to his client’s intentions.

[66] Prejudice to the defendants: The issue of prejudice is a key factor but not the sole consideration for this type of motion. In deciding whether or not it is just to set aside a dismissal order, the plaintiff must convince the Court that the defendant will not suffer any significant prejudice in presenting their case at trial as a result of the plaintiff’s delay or steps taken following the dismissal of the action. The plaintiff must show, at least prima facie, that the defendant has suffered no prejudice as a result of the delay, or if there is a presumption of prejudice a rebuttal of the presumption. If the onus is met, the evidentiary burden shifts to the defendant to demonstrate actual prejudice.

[67] While I am inclined to place less weight on this factor, the plaintiff has failed to rebut the presumption of prejudice that with the passage of time, key witnesses are no longer being employed to respond to the claim. Nevertheless, based on the history of the litigation and the plaintiff’s conduct in tandem with the passage of time, I am satisfied that the defendant was entitled to consider that the litigation had ended. Employees have left the company. I am satisfied that the prejudice in this case is not limited to that of a generic nature as a result of the normal consequences flowing from the delay in litigation, that cannot otherwise be compensated by an order for costs.

[68] While I need not delve into the application of the revised rule, I accept the defendant’s position in that it appears that the plaintiff would still be in violation of the amended Rule 48.14, which has provided a further three years to litigants before an action will be dismissed. Courts have considered this rule change as part of the contextual analysis: Klaczkowski v. Blackmont Capital Inc., 2015 ONSC 1650 at para. 32-33; Elkhouli v. Senathirajah, 2014 ONSC 6140 at para 48.

[69] I cannot leave the discussion of this motion without reference to the instructive case of Broniek-Harren v. Osborne, [2008] O.J. No. 1690 (S.C.) Justice Gray described the competing principles to have cases determined on their merits with the need for the orderly procedural progress of litigation.

The Rules reflect a balance. The litigant does not have an untrammelled right to have his or her case heard. In order to be heard, a case must be processed in accordance with the Rules. By the same token, adherence to the Rules must not be slavish in all circumstances. They are, after all, designed to ensure that cases are heard. Throughout the Rules, the principle is reflected that strict compliance may be dispensed with where the interests of justice require it: see, for example, Rules 1.04(1), 2.01, 2.03, 3.02, and 26.01. The difficult issue, in any particular case, is to determine when non-compliance reaches the point that it can no longer be excused. The Court, and society as a whole, have an interest in ensuring that the system remains viable. If the Rules can be ignored with impunity, they might as well not exist.

[70] In Wellwood, at para. 76, the Court of Appeal again pointed to “the particular importance of finality in litigation as a consideration in assessing prejudice [when considering whether to set aside a Registrar’s dismissal].” Even with the implementation of the revisions to Rule 48, there is a strong public interest in promoting the timely resolution of disputes, a party’s entitlement to rely on the finality principle grows stronger as the years pass.

[71] I am also reminded by Sharpe J.A.’s comments in Giant Tiger, to the effect that a party is entitled to rely on the finality principle and “at some point the interest in finality must trump the opposite party’s plea for an indulgence”. It is not an easy task to terminate a party’s rights to have his or her day in court. That said, the plaintiff may have other recourse that does not fall at the feet of the defendant.

[72] In my opinion, reviving this action, particularly after a lengthy period of time since the Order, would undermine the principle and desire for finality.

Conclusion:

[73] The Ontario Court of Appeal directs that an important consideration underlying the merits of these types of motions, or when employing analogous rules, is the laudable goal of having disputes resolved on their merits. I am mindful that the jurisprudence cautions judges when considering dismissing actions for any multitude of reasons, not to punish litigants for counsel’s actions in the conduct of litigation. While I am reticent to deny the plaintiff the right to have his day in court, and a potential remedy for an alleged wrongdoing; this is a case where in balancing all of the interests, the plaintiff has not satisfied his onus pursuant to the transitional Rule 48.14 and the Reid factors.

[74] The plaintiff’s motion to set aside the Registrar’s Order for dismissal of the action is denied.

[75] If the parties cannot agree on the issue of costs, I will consider brief written submissions. These cost memoranda shall not exceed 3 pages in length, (not including any bills of costs or offers to settle). The defendant may serve and file its costs submissions within 15 days of the date of this endorsement. The plaintiff may file his submissions within 15 days of receipt of the defendant’s materials. The defendant may file a brief reply within 5 days thereafter.

A.J. Goodman J.

Date: November 28, 2016

[^1]: See Madill v. Brookfield, 2013 ONSC 7357 (Master) wherein there is a discussion about the test to be employed in these types of cases.