Court File and Parties

COURT FILE NO.: 06-CV-310035PD2 MOTION HEARD: 20170403 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Sally Ip, Plaintiff/Moving Party AND: Volta W.K. Tsoi, Defendant/Responding Party

BEFORE: Master P. T. Sugunasiri

COUNSEL: J. Mendelsohn, for the Plaintiff/Moving Party T. Mathews, for the Defendant/Responding Party

HEARD: April 3, 2017

Amended Reasons for Decision

[1] This was a motion brought by Sally Ip to restore this matter to the trial list. She commenced her action in 2006. The action claims damages for injuries she alleges she sustained in 2001 when a TV fell on her head while employed by Mr. Tsoi at his dental office. For the reasons set out below, I deny the Plaintiff’s motion and dismiss this action. These reasons and order amend and supersede those released on May 4, 2017.

[2] Ms. Ip commenced this action on April 24, 2006, nearly five years after the alleged incident occurred on June 29, 2001. [1] She retained Consky and Associates Professional Corporation to act for her. By July of 2005, Ms. Ip had moved to Hong Kong and appeared to be instructing counsel from there. [2] In or around July 7, 2006, Mr. Tsoi delivered a Notice of Intent to Defend. Due to coverage issues with his insurer, Mr. Tsoi’s counsel was required by the insurer to remove themselves as solicitors of record and did so by order of Master Peterson dated June 13, 2007. As a result, Mr. Tsoi was required to obtain new counsel.

[3] On July 14, 2008, the Court sent the parties a status notice. In or around August 14, 2008, Mr. Tsoi delivered a Statement of Defence having retained Gardiner Miller Arnold LLP as new counsel. [3] In turn, on September 18, 2008 Mr. Consky delivered an unsworn Affidavit of Documents to Mr. Arnold. Mr. Consky chose to forego examinations for discovery of Mr. Tsoi [4] and Mr. Consky set the matter down for trial on October 7, 2008. On December 10, 2008, Mr Consky wrote to Mr. Arnold indicating that he had received the Certificate Form to set down the pre-trial and trial and that the form had to be jointly submitted within six months. There was not response from Mr. Arnold. At the same time, Mr. Consky’s firm was having difficulty contacting Ms. Ip and could not canvass mediation and pre-trial dates. As a result, it appears from the case history of the Court file that the action was struck off the trial list in or around August 25, 2010.

[4] There appears to have been no activity by either party between December 10, 2008 until October 7 and 8, 2015 when Mr. Consky or someone from his firm attempted to contact Ms. Ip. Ms. Ip responded on October 8, 2015 though there was no evidence on what the nature of the communication was. After this brief contact with counsel, Ms. Ip was silent again despite communication attempts made by Mr. Consky’s firm on November 30, 2015, December 30, 2015 and July of 2016. Finally, on July 21, 2016, Ms. Ip emailed a lawyer at Mr. Consky’s firm and indicated that she was experiencing headaches and dizziness. She also asked why this was taking so long, and wanted “this case to settle and this nightmare to leave behind me.” After receiving those instructions, counsel took steps to first try to settle the action in October and November of 2016. In or around this time, Mr. Tsoi retained current counsel to address settlement and the within motion.

Applicable Legal Principles

[5] In coming to my conclusion, I rely on the following principles and jurisprudence with respect to motions to restore an action to the trial list:

a. Two principles of our justice system and the Rules of Civil Procedure are that civil actions should be decided on their merits and the court’s bias is in favour of deciding cases rather than terminating rights on procedural grounds. On the other hand, the various time limits mandated by our Rules as well as the introduction of Rule 48 and other amendments brought by the Osbourne Report suggest that civil actions should be resolved within a reasonable time frame (as per Laskin, J.A. in Hamilton (City) v. Svedas Koyanagi Architects Inc, 2010 ONCA 887, 104 OR (3d) 689 at paras. 20-23)

b. On a motion to restore an action to the trial list, the plaintiff bears the burden of demonstrating that there is an acceptable explanation for the delay and that if the action was allowed to proceed, the defendant would suffer no non-compensable prejudice (Nissar v. Toronto Transit Commission, 2013 ONCA 361, 115 OR (3d) 713 at para. 31);

c. It is primarily the plaintiff’s responsibility to move the action forward and prosecute it as diligently as possible (Nissar, supra at para. 30);

d. Despite it being the plaintiff’s primary responsibility to prosecute the action, conduct of the defendant is a relevant factor. While it may be a conventional legal strategy for defendants to wait for the plaintiff to make the next move, the current objectives of timely and efficient access to justice and effective use of court resources requires all parties to do their part in moving a matter along (Carioca’s Import & Export Inc. v. Canadian Pacific Railway, 2015 ONCA 592, 128 OR (3d)143 at para. 53);

e. The Court must take a contextual approach to the two-prong test and consider all of the evidence before it. It must not be too technical or exacting in applying the rules or the test for restoring an action to the trial list (Carioca’s, supra at para. 52);

f. The issue of prejudice is a factual one and the mere passage of time is not always an insurmountable hurdle; however prejudice can be presumed when there has been an inordinate, unexplained delay on the basis that memories do fade over time (Armstrong v. McCall (2006), 28 CPC (6th) 12 at para. 11 (CA)); and

g. It is the plaintiff who bears the onus of demonstrating that the defendant would not suffer non-compensable prejudice if the action were allowed to proceed. A defendant is not required to offer evidence of actual prejudice. However, a court is entitled to consider the defendant’s conduct in light of any assertions of prejudice it may choose to make (Carioca’s, supra at paras. 49, 50).

Delay

[6] There is no doubt that there is a period of significant delay between December of 2008, when Mr. Consky received a Certification Form having set the action down for trial, and July 21, 2016, when Ms. Ip sent what I find to be a somewhat vague email about pursuing her claim. Prior to that, any delay cannot be bourne by Ms. Ip as Mr. Tsoi was having issues with retaining counsel and did not deliver a defence until 2 years after the claim was issued. Counsel for Ms. Ip argues that she has provided an acceptable explanation for that delay. Counsel for Mr. Tsoi suggests that there is no such acceptable explanation and notes in particular that Ms. Ip has not provided her direct evidence on the matter nor any explanation for its absence.

[7] The only evidence before me with respect to this almost 8-year delay was an affidavit from Mr. Consky indicating that the firm was unable to reach Ms. Ip in that time. In my view, this falls significantly short of the detailed evidence required to demonstrate an acceptable explanation for her delay. Counsel provided me with some case law on the relevance of solicitor inadvertence in cases such as this. That case law is inapplicable here where there is no evidence of missed dates or lawyer inadvertence. The only evidence is that Ms. Ip was not responding to counsel who therefore could not obtain dates or instructions on pre-trial and trial. Further, despite the gravity of the possible adverse outcome of this motion for Ms. Ip, there was no explanation as to why she was not able to speak to the delay by way of her own affidavit evidence. One can assume that it may be because she is in Hong Kong but no explanation was provided in the materials nor at the hearing of the motion.

[8] While, as counsel for Mr. Tsoi urges, I could draw an inference from the absence of evidence that Ms. Ip has not had an intention to pursue this action since she left for Hong Kong in 2005, I need not do so. Even without such an inference, Ms. Ip has not provided any acceptable explanation for the delay, nor is there convincing evidence that she is seriously interested in pursuing her case. The latter consideration is relevant to taking a contextual approach to the assessment of whether or not this matter should proceed, keeping in mind the need to balance the public’s interest in timely litigation and finality, and the importance of having actions resolved on their merits. The short email from her saying that she wants the matter behind her is not sufficient to overcome nearly 8 years of inactivity in pursuing her action. She could have tendered evidence that she had always intended to pursue the claim, but for enumerated reasons, was unable to do so. There could also have been evidence, directly, or on the information and belief of her lawyer, explaining why she did not respond to counsel in those 8 years. Unfortunately, the record contains nothing of the sort.

Prejudice

[9] The Plaintiff contends that Mr. Tsoi will suffer no non-compensable damages if this action were allowed to continue because a) the case does not turn on documentary evidence that has been lost over time; b) Mr. Tsoi has retained his notes from the date of loss in any event including the names of potential witnesses and their telephone numbers from 2001; c) the Plaintiff’s unsworn Affidavit of Documents included the actual documents that Ms. Ip intends to rely on; and d) there is no actual evidence that anyone’s memory has faded including the Defendant’s.

[10] Mr. Tsoi argues that he is prejudiced by what amounts now to be a 16-year delay in this action (the year of loss being 2001). His main argument is that there are potentially three witnesses to the alleged event who cannot be found and would in event have faded memories of the incident. He claims that the length of the delay raises a presumption of prejudice due to faded memories, and that Ms. Ip has not rebutted that presumption.

[11] I agree with the Defendant’s submissions on two counts. First, the cumulative delay of 16 years, rather than simply the delay of the 8-years that we have thus far been discussing, is relevant to the issue of prejudice. While the Plaintiff does not have to explain the delay between the date of loss and issuing her Claim, the fact that she waited almost to the end of the 6 year limitation period to commence this action tacks on an extra 5 years to fading memories. Second, as noted earlier, when there has been inordinate and unexplained delay, there is a presumption of prejudice because memories do fade.

[12] The question is to what extent do faded memories impact on this particular case? For example, if it was a largely documentary case, faded memories would be far less prejudicial. In this case, the Plaintiffs have argued that the necessary documents are intact. No argument was made, however, that the case turns on these documents. In fact, argument was made that the case is simple and liability, at least, does not turn on the documents. If one examines the pleadings, the Statement of Claim alleges that the TV at Ms. Ip’s place of employment fell on her head (para. 4) and that Mr.Tsoi failed to inspect the fixture holding the TV (para. 5(b)) so as to prevent such an accident. The Defence simply denies the Claim with no other particularization. I cannot fully determine from the record before me the extent of the prejudice to the Defendant as a result of the faded memories of the parties and any witnesses, but I need not do so. I can conclude, and do, that there would certainly be at least some prejudice that has not been rebutted by the Plaintiff.

[13] Aside from this presumption of prejudice, Mr. Ip. Chose to argue actual prejudice. It is appropriate and incumbent on this Court to consider the Defendant’s conduct in relation to the actual prejudice alleged. In this case, there is no evidence that Mr. Tsoi took steps to conduct examinations for discovery on Ms. Ip’s affidavit of documents, or to follow up on potential witnesses mentioned in the neuropsychological report that was in her productions. Had those steps occurred, the Defendant may have been able to potentially keep in touch with witnesses if they were thought to be important and at the very least might have been able to have some understanding of what those witnesses would say. Having failed to avail himself of those fact finding steps (or at least there being no evidence of taking any such steps), Mr. Tsoi cannot now say that he is prejudiced by not having access to those witnesses.

Conclusion

[14] On balance, I find that the delay in prosecuting this action is sufficiently severe and unexplained to dismiss the motion to restore this action to the trial list and dismiss the action. In addition, the inordinate and unexplained delay causes some measure of prejudice to the defendant and to the trial process as a whole due to inevitably fading memories of the parties and potential witnesses over the past 16 years. Even if I am wrong and there is no non-compensable prejudice, there is still a basis to dismiss this motion and this action. There is an absolute lack of any explanation, let alone an acceptable one, for the almost 8-year delay in prosecuting this action, and very minimal evidence of a serious intention on Ms. Ip’s part to continue this action from Hong Kong. After 16 years, Mr. Tsoi is entitled to move on with his life and have finality in this litigation.

[15] Given the foregoing, I order as follows:

a. The Plaintiff’s motion is dismissed with costs;

b. This action is dismissed with costs; and

c. If the parties cannot agree on costs, they are permitted to make brief submissions in writing on the two Costs Outline provide to me by counsel for Mr. Tsoi, within 30 days of the date of these reasons.

Master P.T. Sugunasiri

Date: May 8, 2017

[1] The old Limitations Act allowed tort actions to be commenced within six years from the date of loss.

[2] On cross-examination on the Affidavit of Harvey Consky sworn January 6, 2017, Mr. Consky indicated that he received an email from Ms. Ip, providing her Hong Kong telephone number and address.

[3] It is unclear from the record whether the defence was spurned by the status notice or not.

[4] There was no evidence on the record about Mr. Tsoi’s position or steps with respect to discovery.