GOLDMAN v. PACE 2017 ONSC 1797 COURT FILE NO.: CV-08-363411 MOTION HEARD: MARCH 20, 2017
SUPERIOR COURT OF JUSTICE - ONTARIO
BEFORE: MASTER R.A. MUIR COUNSEL: Barry Goldman in person Frank Caruso for the defendants Ronald J. McCloskey and Fasken Martin DuMoulin LLP
ENDORSEMENT
1The plaintiff brings this motion for a status hearing pursuant to Rule 48.14(5) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”). The plaintiff seeks an order establishing a timetable for the remaining steps in this action including mediation and a deadline by which this action must be set down for trial. The defendants Ronald J. McCloskey and Fasken Martin DuMoulin LLP (“Fasken”) are opposed and ask that this action be dismissed against them.
2I agree with Fasken on the test to be applied on a motion for a status hearing. The onus is on the plaintiff to demonstrate that there is an acceptable explanation for the litigation delay and the defendants will not suffer non-compensable prejudice if the action proceeds to trial. See Faris v. Eftimovski, 2013 ONCA 360 at paragraph 32. The plaintiff argued that a less stringent test should be applied in the circumstances of this motion but was unable to provide any authority in support of that argument. I am bound to follow the decision of the Court of Appeal in Faris.
3I have reviewed and considered the evidence and the parties’ submissions with the Faris test in mind. For the reasons that follow, it is my view that the plaintiff has established an acceptable explanation for the delay and that the defendants will not suffer any significant non-compensable prejudice if the action is allowed to continue.
4This action involves events that took place between 2000 and 2002. The plaintiff is a lawyer. The defendant Nadine Pace (“Pace”) is a former client of the plaintiff in respect of an action and HRC complaint Pace commenced against her former employer. The plaintiff alleges that Pace has failed to pay legal fees owing to the plaintiff for his work. Fasken acted for the defendant in the action and the complaint Pace brought against her former employer. Pace allegedly settled her claim directly with Fasken without advising the plaintiff. The plaintiff alleges that Fasken committed the tort of intentional interference with contractual relations and seeks damages. Fasken has defended the plaintiff’s claim and denies his allegations.
5The progress of this simplified procedure action has not been ideal. Far from it. It was started in 2008 and the Fasken defendants have yet to be examined for discovery. However, “ideal” is not the standard to be applied. A status hearing should not be a week by week or month by month analysis of the progress of an action. The court should look at the overall delay and determine whether the explanation provided by the plaintiff is acceptable.
6I have not considered the pre-litigation allegations of delay. The applicable case law only refers to delay after an action has been commenced. The initial period of delay has been explained by the plaintiff’s efforts at finding and serving Pace. That issue was ultimately addressed with Master Brott’s substituted service order on March 2, 2011. Pace was noted in default shortly thereafter. I do not take issue with the plaintiff’s failure to obtain a timely default judgment against Pace given the uncertainties of collecting on that judgment.
7After the substituted service order was made, there began an extended back and forth over a dispute related to the production of documents. Dates for oral examinations were discussed during this time period but were put off due to the dispute over documents. Motion dates were booked and adjourned. Various materials were prepared and served by both sides but the motions were never heard on their merits. This dispute went on, back and forth, for several years. Eventually Fasken elected to examine the plaintiff prior to the hearing of the production motions. The plaintiff was examined for discovery on September 10, 2015. He answered his undertakings in June 2016.
8In November 2016, the plaintiff wrote to counsel for the Fasken defendants seeking their consent to a timetable order. The Fasken defendants declined to provide their consent or to agree to a mediator and mediation date, which would have allowed the plaintiff to set the action down and comply with the January 1, 2017 deadline under the Rules.
9As I stated above, the progress of this action has not been perfect. However, it is my view that the explanation for the delay is acceptable. A more detailed record would have been helpful and it would have been preferable for the court to have direct evidence from the plaintiff. However, these elements are not essential. The plaintiff has explained the delay by pointing to documentary evidence showing various efforts to deal with the defendant Pace, the production of documents and oral discovery. This is not a situation where an action has been ignored and forgotten. Much has been done. There is no evidence of an intention on the part of the plaintiff to abandon this action. In my view, the plaintiff has met the burden placed upon him on this motion in terms of delay.
10I am also satisfied with the plaintiff’s evidence with respect to prejudice. It is clear that the vast bulk of the relevant documents have been preserved and produced. Fasken points to missing and destroyed documents but those documents appear to have been deleted many years ago, long before any delay on the part of the plaintiff. Similarly, the inability to locate Pace pre-dated this litigation. The remaining parties are available to give evidence at trial. The plaintiff has been examined for discovery. Fasken has not provided any evidence of actual prejudice. Fasken has been aware of this action and has been represented by counsel throughout. It has had ample opportunity to preserve evidence and interview witnesses. The plaintiff has met this element of the test as well.
11One further factor favours the plaintiff. The plaintiff could have set this action down for trial in December 2016 ahead of the January 1, 2017 deadline. He was prevented from doing so because Fasken would not agree to a mediator and a mediation date. As a result, the plaintiff was required to bring this motion for a status hearing rather than perhaps facing a motion to dismiss for delay where the onus would have been on Fasken. As Associate Chief Justice Marrocco has recently observed, Rule 48.14 should not be interpreted and applied so as to make it a trap for the unwary. See Daniels v. Grizzell, 2016 ONSC 7351 at paragraph 13.
12I am granting the relief requested by the plaintiff.
13In my view, the plaintiff has received a substantial indulgence from the court. A plaintiff has the primary obligation to advance litigation. This action is more than eight years old. There are significant gaps in the plaintiff’s evidence. In these circumstances, it was not unreasonable for Fasken to oppose this motion. In my view, it is fair and reasonable that there be no order for the costs of this motion.
14I therefore order as follows:
(a) this action shall be permitted to continue; (b) any further production motions shall be brought by June 30, 2017; (c) oral discovery shall be completed by September 30, 2017 and the plaintiff’s oral discovery of the Fasken defendants shall be limited to 2 hours in total for all witnesses; (d) any further undertakings shall be answered by November 30, 2017; (e) mediation shall take place by February 28, 2018; (f) this action shall be set down for trial by March 31, 2018, failing which it shall be dismissed by the registrar; and, (g) there shall be no order for the costs of this motion.
Master R.A. Muir
DATE: March 20, 2017