Court File and Parties

CITATION: Dupont v. Provincial Waste Inc, 2016 ONSC 8230

COURT FILE NO.: 1837/10

DATE: 20160429

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Lyne Marie Dupont, Plaintiff

AND:

Provincial Waste Inc., Defendant

BEFORE: Grace J.

COUNSEL: J. Van Allen for the plaintiff

R. P. Hosack for the defendant

HEARD: April 29, 2016

ENDORSEMENT

[1] Lyne Marie Dupont seeks to set aside the registrar’s January 25, 2013 order dismissing her wrongful dismissal action (the ‘order’).

[2] This endorsement explains why I have decided to grant the order requested despite the opposition of Provincial Waste Inc. (‘PWI’s’).

[3] Before addressing the argument on the merits, I will dispose of PWI’s argument on standing. In short, PWI submitted this motion was fatally flawed because it was really brought on behalf of Ms. Dupont’s lawyer Khalid Baksh. PWI argued Mr. Baksh is not a person “affected by an order of a registrar” as rule 37.14(1) of the Rules of Civil Procedure provides.

[4] That submission is based on Ms. Van Allen’s description of her role in the various materials filed with the court as “counsel to the lawyers for the plaintiff”.

[5] In my view, the submission is wide of the mark. The moving party is the “plaintiff”: see the Notice of Motion. That is the person seeking relief from the court.

[6] Mr. Baksh is Ms. Dupont’s counsel of record. However, as we shall see, the motion involves an analysis of his acts and omissions and a determination of their effect. Consequently, Mr. Baksh could not make submissions on the motion. That task had to be entrusted to a different lawyer. However, that lawyer seeks relief on behalf of Ms. Dupont. The fact the relief, if granted, may benefit Mr. Baksh does not, with respect, mean the true moving party is the solicitor rather than Ms. Dupont.

[7] Furthermore, it is obvious from the reported cases that motions of this kind are regularly argued by lawyers retained by the insurer. Standing is simply unaddressed because it is a non-issue. Even if I had found otherwise, I would have simply adjourned, but not dismissed, this motion.

[8] I turn to the merits of the motion. The applicable legal principles need not be set forth in detail because they have been repeated countless times. Four criteria are drawn from Reid v. Dow Corning Corp (2001), 11 C.P.C. (5^th) 80, at para. 41 (Ont. S.C.J.), rev’d on other grounds, (2002) 48 C.P.C. (5th) 93 (Ont. Div. Ct.). They are:

a) explanation of the litigation delay;

b) inadvertence in missing the deadline set out in the status notice;

c) promptly moving to set aside the registrar’s dismissal order; and

d) no substantial prejudice to the defendant because of the delay.

[9] The so-called Reid factors have been referred to, adopted and explained many times. A small chronological and non-exhaustive listing of the Court of Appeal decisions cited illustrates why that comment was made: Scaini v. Prochnicki (2007), 2007 ONCA 63, 85 O.R. (3d) 179 (C.A.); Marche D’Alimentation Denis Thérieult Ltd v. Giant Tiger (2007), 2007 ONCA 695, 87 O.R. (3d) 660 (C.A.); Finlay v. Van Paassen, 2010 ONCA 204; Wellwood v. Ontario Provincial Police, 2010 ONCA 386; Machacek v. Ontario Cycling Assn., 2011 ONCA 410; Habib v. Mucaj, 2012 ONCA 880; MDM Plastics Limited v. Vincor International Inc., 2015 ONCA 28; H.B. Fuller Company v. Rogers, 2015 ONCA 173 and Labelle v. Canada (Border Services Agency), 2016 ONCA 87.

[10] In Scaini v. Prochnicki, supra, Goudge, J.A. said this of the Reid factors at paras. 23 and 24:

In my view, a contextual approach to this question is to be preferred to a rigid test requiring an appellant to satisfy each one of a fixed set of criteria …The key point is that the court consider and weigh all relevant factors to determine the order that is just in the circumstances of the particular case.

[11] The court must keep in mind the importance of promoting the timely resolution of contested matters in order to maintain respect for the administration of justice and the basic principle that civil disputes should be resolved on their merits: H.B. Fuller v. Rogers, supra. at para 25.

[12] The analysis is heavily fact driven.

[13] In this case counsel for PWI conceded that he is not relying on the pre-January 25, 2013 period. That was an appropriate concession. A status notice was issued October 9, 2012. The action was then about twenty-seven (27) months old. With the exception of the examination for discovery of a representative of PWI the usual steps taken before a matter is set down for trial had occurred. In fact, the examination of PWI’s representative had been scheduled for September 18, 2012 but had not been completed because Mr. Baksh had made a “scheduling error”.

[14] Mr. Baksh should have kept the ninety-day period set forth in the status notice in mind. Bluntly, he left things to the last minute at best. However, the parties were working cooperatively in the latter part of January as evidenced by a January 24, 2013 letter sent by PWI’s counsel Peter Sullivan.

[15] Mr. Sullivan’s letter outlined a “proposed timetable for consideration and if acceptable to [sic] submission to the court for approval.” The proposed timetable contemplated completion of examinations for discovery by March 20, 2013 and a September 30, 2013 deadline to set the matter down for trial.

[16] Counsel did not realize the order would be signed the following day.

[17] Mr. Baksh replied on January 31, 2013. By then he knew of the order and enclosed draft motion material to (a) set aside the order and (b) implement the proposed timetable. Mr. Baksh asked Mr. Sullivan to review the material “and advise as to your client’s consent.”

[18] I pause briefly to address the February 3, 2016 affidavit of PWI’s president Kirk Williams. In para. 8, Mr. Williams’ deposed:

Following the dismissal of the action on January 25, 2013 the Defendant assumed this matter was closed.

[19] With respect, that cannot be true given the January 31, 2013 letter.

[20] Mr. Williams also ignored a March 26, 2013 follow up correspondence. Having had no response from Mr. Sullivan, Mr. Baksh wrote again. He enclosed the January 31, 2013 letter and asked Mr. Sullivan to “please advise as to your client’s consent to the setting aside of the administrative dismissal.”

[21] Mr. Williams did not provide PWI’s consent. Nor did he refuse to provide it. He simply said nothing at all.

[22] The regrettable and concerning part of the chronology as it relates to Mr. Baksh’s conduct followed.

[23] He did not serve or file a motion to set aside the order in 2013, in 2014 or until obtaining assistance from his insurer in 2015.

[24] PWI submits such a lengthy delay is fatal because it was “intentional” and so long that excusing it would be unfair to PWI and would bring the administration of justice into disrepute.

[25] While the passage of almost two and a half years from the granting of the order and service of the motion record is of substantial concern, I do not agree it is fatal in the particular circumstances of this case.

[26] I have reached that conclusion for these reasons:

(a) First, I am satisfied with the plaintiff’s conduct of the action prior to the date on which the order was made. Things were not moving at high speed, but they were steadily advancing. In fact, the delay from December 20, 2011 to September 11, 2012 was attributable to PWI. Its counsel did not respond to requests for discovery dates. When Mr. Dupont’s lawyer appropriately served a notice of examination, PWI postponed same for two more months. Furthermore, the few remaining steps were in the process of being timetabled on a cooperative basis when the order was signed;

(b) Second, PWI’s solicitor should have responded to Mr. Baksh’s January 31, 2013 letter within a reasonable time and in a meaningful way. In fact, I will go further: Given the circumstances he should have consented to the motion he then received in draft. It contemplated implementation of the timetable he had proposed seven days earlier and clearly, the order would have been set aside at that stage with ease. The same comments apply to the March 26, 2013 letter, yet, silence reigned;

(c) Third, I accept the uncontradicted evidence of Mr. Baksh that he “froze” and that “panic and embarrassment” set in. That explanation will not carry the day every time I suspect but here it explains why a solicitor who had been reasonably diligent suddenly fell silent. Each month that passed compounded the problem he was facing. His inactivity was a product of negligence, not apathy or rational, conscious thought;

(d) Fourth, in my view PWI did not “assume” this action was at an end. It hoped it was. PWI’s strategy is clear from the non-responsiveness of its counsel. It thought the order was fortuitous. It chose to be opportunistic. It lay in the weeds. It is not, in any way, prejudiced. This is a wrongful dismissal action as noted. There is a documentary record. In fact, examinations for discovery are practically complete. PWI’s representative was to have been examined on September 18, 2012. Affidavits of documents and productions have been exchanged. This is not a case of fading memories or unpreserved records.

[27] Labelle, supra, demonstrates that a long delay between a dismissal order and a motion to set it aside is not, standing alone, fatal. In that case more than two years had passed: see para 3. In my view the comments at paras. 38 and 40, of that decision are opposite.

[28] For the reasons given, the motion is granted, and the order is set aside. Recognizing that an indulgence was being sought Ms. Dupont does not seek costs. None are ordered. Each party shall bear their own costs.

[29] By no later than May 20, 2016 at 4:30 pm the parties shall timetable all remaining steps cooperatively and file same in the court file. If they cannot do so I will do so during an 8 a.m teleconference to be arranged through the trial coordinator by May 31, 2106 (such teleconference to occur, if needed, by no later than June 30, 2016).

“Justice A.D. Grace”

Justice A.D. Grace

Date: April 29, 2016