Superior Court of Justice - Ontario

CITATION: Stillitano v. Dhamrait, 2016 ONSC 8155

COURT FILE NO.: CV-13-00480154

MOTION HEARD: 20161202

RE: Nicola Stillitano et al., Plaintiff(s)/Applicant(s)

AND: Daljit Dhamrait and Toronto Transit Commission, Defendant(s)/ Respondent(s)

BEFORE: Master Mills

COUNSEL: William G. Scott, Counsel for the Plaintiffs Stephen Sargent, Counsel for the Defendants

HEARD: December 2, 2016

REASONS FOR DECISION

[1] The plaintiffs have brought a motion to restore the action to the trial list and the defendants have brought a motion to dismiss this action for delay. Both motions were heard together however the latter motion is moot as I have, for the reasons that follow, decided to dismiss the plaintiff’s motion. The action will not be restored to the trial list. As such, it will be administratively dismissed on January 1, 2017 pursuant to the provisions of Rule 48.14(1). While not required to decide the issue, having regard to the circumstances, I would have granted the defendant’s motion to dismiss this action for delay.

[2] This litigation was commenced with the issuance of a Statement of Claim on March 25, 2008. The cause of action is in respect of a low speed rear-end motor vehicle accident which occurred on March 9, 2006 between the plaintiff Nicola Stillitano (“Nicola”) and a Toronto Transit Commission bus driven by the defendant Daljit Dhamrait. The Statement of Defence and Jury Notice were filed May 30, 2008. Liability for the accident is not in issue however, there is a Limitations Act, 2002 defence asserted as the Statement of Claim was issued beyond the two year limitation period. A Reply was delivered by the plaintiffs on August 26, 2008.

[3] The history of this litigation is replete with inattention, missed deadlines and a failed court attendance by former counsel for the plaintiffs. The examination for discovery of Nicola was completed on April 26, 2010. The Family Law Act (“FLA”) plaintiffs and the defendants have not been examined as yet, nor have any examinations be scheduled, despite the passage of more than eight years.

[4] A Status Notice was issued by the court on June 7, 2010 and a status hearing was requested by the plaintiffs but without any notification or consultation with the defendants. On June 21, 2010 the Registrar issued a Notice of Status Hearing returnable May 10, 2011. This too was never communicated to counsel for the defendants. The action was dismissed on June 30, 2011 due to the plaintiffs’ failure to comply with the requirements of Rule 48.14(4) and their failure to attend the scheduled status hearing. The plaintiffs’ counsel was able to have the action reinstated without notice to the defendants by submitting what is now known to be incorrect information to the court. By endorsement dated October 18, 2012 Mullins, J. set aside the Registrar’s dismissal order.

[5] The Trial Record was served and then filed with the court on December 19, 2011 but it failed to include a copy of the Jury Notice.

[6] By agreement of the parties and with the endorsement of M. Vallee, J., the action was transferred from Newmarket to Toronto on March 12, 2013.

[7] A partially completed Trial Certification Form was submitted to the court on September 30, 2013 wherein the plaintiffs failed to identify the type of action, the number of witnesses or experts to be called, and failed to estimate the length of trial. The only pertinent information on the form was provided by the defendants. As submitted, the form cannot be taken as a true certification to the court that the action was ready to proceed to trial.

[8] On April 23, 2014 the action was administratively struck from the trial list as no trial date had been scheduled. Correspondence confirms the plaintiffs’ counsel was advised of this fact from counsel for the defendants on April 28, 2015. No steps were taken at that time to restore the action to the trial list. Defence counsel closed his file.

[9] In June 2015, the plaintiffs changed counsel. No steps were taken to ascertain the status of this action with the court. Some modest productions were made in the fall of 2015 by the plaintiffs. On January 21, 2016 counsel for the defendants informed new counsel for the plaintiffs of the administrative order striking the action from the trial list some twenty-one months earlier.

[10] The Notice of Motion to restore the action to the trial list was served on May 5, 2016, twelve days beyond the second anniversary of the administrative dismissal. Presumably, counsel is relying instead upon the January 1, 2017 deadline provided by Rule 48.14(1).

[11] Rule 48.11(b) is the applicable Rule for this motion and it provides that where an action has been struck off a trial list, it shall not thereafter be placed on any trial list except with leave of the court.

[12] The decision to restore an action to the trial list is discretionary. Where there is no impending dismissal, the question to be addressed on a Rule 48.11 motion is simply whether the plaintiff has shown that the action is “ready for trial” within the meaning of Rule 48.01 such that pre-trial and trial dates may be scheduled. If restoration to the trial list is premature, the court should consider the imposition of a timetable or terms.[^1]

[13] Where a refusal to reinstate an action to the trial list will result in its dismissal, the court must consider whether the plaintiff has shown, on a balance of probabilities, that there was a reasonable explanation for the delay and that if the action were allowed to proceed, the defendant would suffer no non-compensable prejudice.[^2] This is the appropriate test in this matter as the action will be administratively dismissed on January 1, 2017 pursuant to Rule 48.14(1).

[14] While it is accepted that a motion to restore an action to the trial list is not a “blame game”, the conduct of this litigation has not met the standards expected of personal injury actions in Toronto or Newmarket. Parties to such litigation are entitled to have the merits of the action determined or resolved in an expeditious manner. I expressly reject the submission of counsel that eight years is not an inordinate length of time to set down a motor vehicle action to trial where liability is not in issue. If I am wrong in this respect, I am of the view that this is precisely the situation where a “shift in culture” is required, as called for by the Supreme Court of Canada in Hryniak v. Mauldin[^3] so that litigation may be proportionate, timely and affordable.

[15] This action has not yet concluded the discovery phase as only one of seven litigants has been examined for discovery and the plaintiffs produced documents in the days leading up to the hearing of this motion, despite requests from the defendants dating back to 2008 and despite the plaintiffs having served their unsworn Affidavit of Documents on November 24, 2009. To date, there remains outstanding undertakings from the examination for discovery of Nicola.

[16] As noted above, the FLA claimants have not been examined for discovery as the plaintiffs’ former counsel had led defence counsel to believe those claims were not being pursued. The new counsel has now reconsidered that position and is re-asserting the claims of the family members. Ten years has passed since the accident giving rise to the action and seven years since the examination for discovery of Nicola.

[17] There is no acceptable, satisfactory or reasonable explanation for the delays in this action. Counsel simply blames others for errors or omissions with the filing of forms, the delivery of notices, the conduct of associates, and the failures of the court administration. Correspondence from defence counsel was allegedly not received and telephone conversations were forgotten.

[18] I do not attribute this conduct to the plaintiffs’ new counsel as steps were taken promptly once being informed in January 2016 that the action had been struck from the trial list. By that time however, the delays had been lengthy, inordinate and entirely unjustified.

[19] The defendants have suffered prejudice as a result of the delays in this litigation.

[20] The issue of prejudice is a factual question whereby the plaintiff bears the onus of demonstrating that the defendant would suffer no non-compensable prejudice if the action were allowed to proceed. It is acknowledged that the mere passage of time cannot stand as an insurmountable hurdle in determining prejudice as timelines cannot be inflexible and explanations for delay cannot become futile. The defendant’s conduct must also be considered when examining the issue of prejudice however, the defendant is not required to offer evidence of actual prejudice.[^4]

[21] The defendants have not impeded this action in any way. They have been responsive and have accommodated the plaintiffs’ counsel in an effort to move the matter forward. The Statement of Defence and Jury Notice were delivered on May 30, 2008 and the defendants sworn Affidavit of Documents together with the Schedule “A” documents were served by August 7, 2008. With only ten days’ notice, counsel for the defendants made himself available to conduct the examination for discovery of Nicola who was being produced for examination in the statutory accident benefits action. Requests were made to schedule the examinations of the FLA plaintiffs or to confirm in writing that their claims were not being pursued. The Trial Certification form was promptly completed by the defendants’ counsel and returned for filing with the court which was done without meaningful contribution by the plaintiffs.

[22] Having regard to the Limitations Act 2002 defence and Nicola’s evidence at the examination for discovery respecting the modest damages and injuries sustained from the accident, it was not unreasonable for the defendants to conclude that the lengthy delays which resulted in the action being struck from the trial list were attributable to the plaintiffs simply abandoning their action. Once the action was struck from the trial list, the defendants considered the matter closed and no further steps were taken in the action.

[23] It is clear from the evidence that counsel was aware as early as April 2015 that the action had been struck and yet no efforts were taken to restore the action to the trial list. The plaintiffs and their new counsel deny having any prior knowledge of the status of this action prior to January 2016.

[24] The overall dynamics of this litigation would suggest that the plaintiffs have not demonstrated any interest in pursuing this matter and the defendants have not impeded the process in any way. The case is not ready for trial and will not be ready in the foreseeable future.

[25] The defendants did not consent to the matter being reinstated after having been dismissed for delay in 2011. Their position was never provided to the court as the plaintiffs’ counsel proceeded on a without notice basis, erroneously attesting that it was an administrative error by the court office that resulted in the dismissal.

[26] The delay occasioned by the plaintiffs, beyond simply the passage of time, will affect the defendants’ ability to defend the action[^5]. The FLA plaintiffs have not been examined for discovery and their evidence has not been preserved in transcripts. There have been no documents produced to support their claims for damages. Several of Nicola’s medical records have yet to be produced. There have been no expert reports delivered. A paucity of employment records have been produced despite the significant claims for loss of income and loss of competitive advantage.

[27] Although liability is not in issue, the nature and significance of the accident will speak to the damages claimed by the plaintiffs. The defendants have not been examined and their evidence has not been preserved in a transcript. The lengthy passage of time will impact the memories of the witnesses and their evidence.

[28] A fair trial on the merits is not possible in this case. The prejudice to be sustained by the defendants if this matter were to be restored to the trial list is beyond that which may be compensated for by judicial accommodations. There has been no evidence led by the plaintiffs that the issues in this lawsuit do not depend on the recollection of witnesses for a proper resolution or that the necessary witnesses are available and recall their testimony in detail. It is unknown whether all the documentary evidence has been preserved.[^6] There is no evidence from the plaintiff to rebut or dispute the finding of prejudice.

[29] The plaintiffs’ motion to restore the action to the trial list is dismissed with costs payable by the plaintiffs to the defendants on a partial indemnity basis. If counsel are not able to agree on an amount to be fixed, brief submissions not exceeding three pages may be made within 30 days hereof.

[30] The defendants’ motion to dismiss the action for delay is dismissed on a without costs basis as being moot. This action is to be administratively dismissed pursuant to Rule 48.14(1) on January 1, 2017.

[31] It should be noted however, the defendants have satisfied me the circumstances of this matter meet the test articulated by Master Dash in Woodheath Developments Ltd. v. Goldman to dismiss an action for inordinate and inexcusable delay. As such, the defendants are entitled to their costs of this action.

Master J. E. Mills

Date: December 29, 2016

[^1]: Carioca’s Import & Export Inc. v. Canadian Pacific Railway Limited, 2015 ONCA 592, at 41-42 [^2]: Nissar v. Toronto Transit Commission, 2013 ONCA 361, at 30-31 [^3]: 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 28. [^4]: Carioca’s Import & Export Inc. v. Canadian Pacific Railway Limited, supra., at para. 49 and 50 [^5]: MDM Plastics Ltd. v. Vincor International Inc., 2015 ONCA 28, at paras. 25 and 33 [^6]: Woodheath Developments Ltd. v. Goldman, 2001 CanLII 28019 (ONSC), at para. 29.