Court File and Parties

Court File No.: 85358/94 Date: 2017/07/20 Superior Court of Justice - Ontario

Re: Deepak Munyal, Plaintiff And: Resham Dhillon and Sukhvinder Kang, Defendants

Before: Madam Justice L. Sheard

Counsel: Robert W. Baldwin, for the Plaintiff Jenna Ann de Jong, for the Defendants

Heard: July 18, 2017

Endorsement

[1] The plaintiff moved for an order setting aside the registrar’s dismissal of his claim. I dismissed his motion with reasons to follow. These are the reasons.

[2] The action commenced in 1994. On August 29, 1994 an interim injunction was issued restraining the defendants from removing from Ontario the proceeds of disposition or encumbrance and proceeding with any transaction, the effect of which would be to receive funds from the sale, transfer or encumbrance of certain of two properties located in the Towns of Markham and Richmond Hill. The order also granted the plaintiff leave to serve a motion for summary judgment with his statement of claim.

[3] On June 24, 1998 the plaintiff’s motion for summary judgment was dismissed. In his Endorsement on the motion, then Justice D. McWilliam stated that, although the defendants had admitted that money was advanced and used to pay down the mortgage on their two properties, “[B]eyond that nothing central is admitted and there are many conflicting issues as to the role of one of the defendants’ father and the plaintiff’s mother. In my view it is impossible to resolve the credibility issues on a summary judgment application.”

[4] Examinations for discovery of the plaintiff took place on February 4, 2000. As a result of the negligence of the defendants’ lawyers, the defendants’ statement of defence was struck. By order dated September 11, 2006, the defence was reinstated.

[5] On December 12, 2006, the plaintiff served a Notice of Intention to Act in Person. The plaintiff did nothing to pursue his claim for the next ten years.

[6] In December 2016, the plaintiff retained his current counsel and instructed him to file the Trial Record and set the matter down for trial. On January 3, 2017 the plaintiff’s lawyer attempted to do that but was advised by the court office that he would need a Requisition, a Pre-trial Certification form, a Mediator’s Report, and a cheque in the amount of $405.

[7] In submissions today, counsel for the plaintiff advised that he was unable to file a Pre-trial Certification form and a Mediator’s Report because his client had neither of those documents. Counsel further submitted that he knew that his client’s action would be struck and determined to wait for it to be struck and then he would bring this motion. Counsel for the plaintiff advised that the matter was struck by the registrar in March 2017.

[8] Today, the Court was told that on and after December 2016, the plaintiff took no steps to schedule a mediation, and cannot, even today, satisfy the requirements to set the matter down for trial.

[9] In his affidavit, the plaintiff’s explanation for his having done nothing to move his matter forward for the last 10 years is that he was “overwhelmed and financially strapped” and determined to act in person and thought he would wait until the defendants’ properties were sold and that they would then pay him the money they owed him. For that latter proposition, the plaintiff relies on evidence given by the defendant, Sukhvinder Kang on her cross-examination of March 30, 1998.

[10] The evidence of Sukhvinder Kang would have been available on the June 24, 1998 motion for summary judgment heard by Justice McWilliam. It is reasonable for this Court to infer that the evidence of Sukhvinder Kang was put before Justice McWilliam on the plaintiff’s motion for summary judgment. Clearly, Justice McWilliam was not satisfied that summary judgment could be granted based on the evidence before him.

[11] It is impossible for this Court to accept that the plaintiff did not proceed forward with his claim because he reasonably expected or expected at all that he would be paid when the defendants’ properties were sold. The defendants had defended the plaintiff’s claim, and his motion for summary judgment. There is no evidence before the Court today upon which to conclude that the plaintiff believed that the defendants would pay him the money they “owed to” him if and when they sold their properties.

[12] The defendants oppose the plaintiff’s motion. Among other submissions, the defendants point out that the plaintiff’s action had also been previously administratively dismissed in 1999, but later reinstated. Though I do not appear to have the full record in front of me, some history of this action can be found in the endorsement of Justice Kealey dated September 11, 2006. The endorsement of Justice Kealey mentions that there was a delay from October 17, 2003 to September 11, 2006 “related to the dismissal by Madam Justice Mackinnon of the Plaintiff’s ex parte Application for default judgment rendered October 15, 2003, at which time she ordered the action be set down for trial on notice to the Defendants with their rights of participation to be determined by the trial judge.” (para 4)

[13] Further, at paragraphs 5 and 6 of his Endorsement Justice Kealey he states: “[5]… Two judges of the Court have considered and refused summary and default judgment due to the obvious credibility issues which exist… [6]… Most, if not all, pre-trial procedures have been completed. In addition, the Plaintiff (Respondent) caused the delay of some two hundred and fifty days between Justice Mackinnon’s Order of October 15, 2003 refusing to grant an ex parte judgment, and the determination of that issue by the Divisional Court on June 22, 2005.”

[14] Nothing in the materials filed by the plaintiff offer any evidence that the plaintiff can or will be in a position to set this matter down for trial, if the action were reinstated.

[15] The defendants also oppose the relief sought on the basis that they are prejudiced in the defence of the claim by the passage of time since the matter was commenced. It must be noted that August 24, 2017 will mark the 23rd anniversary of the date on which the claim was issued. More than 17 years have passed since the plaintiff was examined for discovery. According to the defendants, key witnesses have become unavailable due to age, illness, death, dissolution of a law firm and/or are simply in parts unknown. The plaintiff put no evidence before the Court to challenge these assertions made by the defendants nor has the plaintiff sought to cross-examine on the affidavit put forth by the defendants.

[16] The defendants also submit that relevant and key documents are likely unavailable, given the passage of time. The plaintiff’s response to these submissions is that it was up to the defendants to gather their evidence, both human and documentary, and they cannot now complain that that evidence has become unavailable.

[17] In his Factum, the plaintiff asserts that the onus is on him to explain the delay and to satisfy the Court that there is no prejudice to the plaintiff (sic). Similar reasoning is found in the case of Faris v. Eftimovski, a 2013 decision of the Ontario Court of Appeal (2013 ONCA 360), on which the defendants seek to rely.

[18] In Faris, the Court stated that the then Rule 48.14(13) of the Rules of Civil Procedure makes clear that the onus is on the plaintiff to demonstrate why the action should not be dismissed; to provide an acceptable explanation for the delay; and to establish that if the action were to proceed, the defendant would suffer no non-compensable prejudice. The plaintiff has satisfied none of those.

[19] In addition to their submissions that the plaintiff has not provided an adequate explanation for the delay and that the defendants have suffered actual and non-compensable prejudice by reason of the delay, the defendants put forth a further argument: that they would be successful on a motion to dismiss the action for delay under Rule 24.01(1)(c).

[20] The defendants refer the Court to the 2009 decision of Master R. Dash in Sanders v. Emmerton. This was a motion under Rule 24 to dismiss the action for delay. In granting the relief sought, Master Dash noted that there had been an inadequate explanation of the delay in setting down for trial an action that had been commenced 12 years earlier and that there had been no explanation whatsoever for the bulk of the delay. He concluded there, as I do here, that there has been “an inordinate, unreasonable and inexcusable delay that largely rests at the feet of the plaintiffs…”

[21] Master Dash followed the reasoning in Armstrong v. McCaul, [2006] O.J. No. 2055 (C.A.) in which the court stated that an inordinate delay after the cause of action arose or after the expiration of a limitation period gives rise to a presumption of prejudice. Master Dash also followed the Ontario Court of Appeal decision in Clairmonte v. Canadian Imperial Bank of Commerce, [1970] 3 O.R. 97 (C.A.) in which the Court held that the presumption of prejudice increases with the passage of time. He concluded, as I do here, that where prejudice is presumed by reason of the delay, the defendant need not lead actual evidence of prejudice and the onus is on the plaintiff to rebut the presumption. The plaintiff could rebut that presumption by providing evidence that the documentary evidence had been preserved or that the issues in the lawsuit did not depend on the recollection of witnesses or that all witnesses were available. The plaintiff offers no such evidence here.

[22] As mentioned above, in submissions, counsel for the plaintiff inferred that any of prejudice suffered by the defendants by reason of aging memories or the illness, death or unavailable witnesses, could have been prevented had the defendants gathered the evidence and witnesses long ago. That argument conflicts with the jurisprudence that places the onus on the plaintiff to show no prejudice.

[23] Even if the plaintiff had been able to satisfy the Court that the registrar’s dismissal ought to be set aside, which he did not, had the action been reinstated, there is little doubt that the defendants would have been able to successfully move under Rule 24 for an order dismissing the action. Thus, the best the plaintiff could hope for would be a temporary reprieve, before the inevitable dismissal of his claim.

[24] In conclusion, the plaintiff has had 23 years to pursue his claim and, as stated by the Court of Appeal in Wallace v. Crate’s Marine Sales Ltd., 2014 ONCA 671, “enough is enough.”

L. Sheard Released: July 20, 2017