Court File and Parties
COURT FILE NO.: CV-09-385347
DATE: August 24, 2017
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: NAGARAJAH, Plaintiff/Moving Party
AND:
SIMMONS et al., Defendants/Responding Parties
BEFORE: MASTER RONNA M. BROTT
COUNSEL: William G. Scott, for the Plaintiff Jay Silber, for the Defendant Simmons, Pace Marathon Motor Lines Inc. and 1211619 Ontario Limited Christina A. Stewart, for the Defendants Nagarajah and Nathan
HEARD: June 7, 2017
ENDORSEMENT
(Amended on consent of all parties October 13, 2017)
[1] This action arises as a result of a motor vehicle accident that occurred on April 2, 2007. The plaintiff alleges that she sustained serious and permanent injuries as a result of the accident.
[2] The within action was dismissed by the Registrar on January 16, 2014.
[3] The plaintiff brings this motion to set aside the Order of Dismissal of the Registrar.
CHRONOLOGY
April 2, 2007 – Motor vehicle accident
June 5, 2009 – Counsel Wilson is retained
August 19, 2009 – Statement of Claim is issued
March 8, 2010 – Notice of Intent to Defend (on behalf of defendants Ian D. Simmons, Pace Marathon Motor Lines Inc. 1211619 Ontario Limited – hereinafter referred to as “Simmons”)
March 23, 2010 – Statement of Defence and Jury Notice filed on behalf of Simmons
March 31, 2010 – Reply
September 25, 2010 – Amendment to the Statement of Defence of Simmons
May 3, 2011 – Plaintiff’s file is transferred to solicitor “Z”
April 20, 2012 – Court issued a Status Notice: Action not on trial list (sent to solicitor Wilson)
May 31, 2012 – Notice of Change of solicitor is served on behalf of the plaintiff
July 12, 2012 – Solicitor “Z” served a Request for a Status hearing
August 1, 2012 – Registrar issued a Notice of Status Hearing returnable October 9, 2012
September 20, 2012 – Statement of Defence of Divakazan Nagarajah and Velautham Nathan (hereinafter referred to as “Nagarajah”) is filed
October 9, 2012 – Order on consent with timetable made at Status Hearing with set down date of December 31, 2013
February 15, 2013 – Examinations for discovery of the defendants
August 19, 2013 – Plaintiff’s examination for discovery was commenced and adjourned
- tentative date of November 4, 2013 was discussed for the continuation of plaintiff’s examination
December 31, 2013 – Set down date
January 16, 2014 – Court issued order dismissing action for delay
October 2, 2015 – Solicitor Wilson determined that the action had been dismissed
October 13, 2015 (on or about) – Solicitor Wilson advised plaintiff’s daughter of the dismissal
November 30, 2015 – Plaintiff’s counsel took steps to obtain a date for the within motion
December 4, 2015 – Solicitor Wilson served Notice of Change of solicitor on behalf of the plaintiff and sought the defendants’ consent to set aside the dismissal order
December 7, 2015 – Counsel on behalf of solicitor Wilson unilaterally secured a new date for the motion for March 16, 2016
March 16, 2016 – Motion not filed so new date of April 28, 2016 was secured
April 1, 2016 – Motion filed seeking to set aside the dismissal returnable May 24, 2016
LAW
[4] Reid v Dow Corning Corp [2001]O.J. No. 2365 (S.C.J. – Master), reversed on other grounds [2002] O.J. No. 3414 (Div. Ct.) (“Reid”), sets out the relevant factors to be considered in determining whether a Registrar’s Dismissal Order should be set aside.
(1) Explanation of Litigation delay: The Plaintiff must adequately explain the delay in the progress of the litigation from the institution of the action until the deadline for setting the action down for trial as set out in the status notice. She must satisfy the court that steps were being taken to advance the litigation toward trial, or if such steps were not taken to explain why…If either the lawyer or the Plaintiff made a deliberate decision not to advance the litigation toward trial then the motion to set aside the dismissal will fail.
(2) Inadvertence in Missing the Deadline: The Plaintiff or her lawyer must lead satisfactory evidence to explain that they always intended to set the action down within the time limit set out in the status notice, or request a status hearing, but failed to do so through inadvertence.
(3) The Motion is Brought Promptly: The Plaintiff must demonstrate that she moved forthwith to set aside the dismissal order as soon as the order came to the Plaintiff’s attention.
(4) No Prejudice to the Defendant: The plaintiff must convince the court that the Defendant has not demonstrated any significant prejudice in presenting its case at trial as a result of the Plaintiff’s delay or as a result of the steps taken following the dismissal of the action.
[5] Courts have emphasized that these motions involve an exercise of the court’s jurisdiction and have held that the evaluation of the factors should be made on a contextual basis to determine the order that is most just in the circumstances of each case. It is not necessary that a Plaintiff satisfy all four of the Reid factors to succeed on a motion to set aside a dismissal order.
Scaini v. Prochnicki, 2007 ONCA 63, [2007] 85 O.R. (3d) 179 (ONCA)
Marché D’Alimentation Denis Theriault Ltee et al.v. Giant Tiger Stores Ltd., (2007), 2007 ONCA 695, 87 O.R. (3d) 660 (ONCA)
Finlay v. Van Paassen, 2010, ONCA 204
Wellwood v. Ontario Provincial Police, 2010, ONCA 204
Aguas v. Rivard Estate, 2011 ONCA 494
Vaccaro v. Unifund, 2011 ONSC 5318
[6] In the last five years, the law relating to setting aside registrar’s dismissal orders has been the subject of many decisions of the Court of Appeal for Ontario. They have followed the general approach noted above. In Hamilton (City) v Svedas Koyanagi Architects Inc. 2010 ONCA 887, [2010] O.J. No. 5572 Justice Laskin noted at paragraphs 20-22:
20 Two principles of our civil justice system and our Rules of Civil Procedure come into play. The first, reflected in rule 1.04(1), is that civil actions should be decided on their merits. As the motion judge said at para. 31 of his reasons: “The court’s bias is in favour of deciding matters on their merits rather than terminating rights on procedural grounds.”
21 The second principle, reflected in the various time limits mandated by our rules, and indeed, as noted by the motion judge, in the provision for a status notice and hearing, is that civil actions should be resolved within a reasonable timeframe. In Marché, at para. 25, my colleague Sharpe J.A. wrote about the strong public interest in promoting the timely resolution of disputes. Both the litigants and the public have an interest in timely justice. Their confidence in the administration of our civil justice system depends on it.
22 On motions to set aside an order dismissing an action for delay, invariably there is tension between these two principles.
Explanation of Litigation Delay
[7] A key factor in determining whether or not a Registrar’s dismissal order should be set aside is whether the plaintiff has provided a reasonable and sufficient explanation for the litigation delay.
[8] The moving party’s material on this motion includes Mr. Wilson’s affidavits sworn June 3, 2016 and February 1, 2017, the affidavit of Mikhail Shloznikov sworn June 9, 2016 attaching the plaintiff’s unsworn affidavit of documents and the affidavit of the plaintiff, a fifty-five year old woman who speaks little English. The Simmons and Nagarajah defendants each delivered responding affidavits and a joint factum. As well, the plaintiffs delivered a fresh factum and supplementary affidavit. The fresh factum fails to provide the source of the information and there are few noted citations from the responding parties’ evidence.
[9] Mr. Wilson was solicitor of record from August 19, 2009 to May 2012. Mr. Wilson transferred the plaintiff’s file to solicitor “Z” on May 3, 2011. The plaintiff’s examination for discovery was commenced and aborted on August 19, 2013. The plaintiff heard nothing from solicitor “Z” thereafter. The defendants heard nothing from plaintiff’s counsel from August 19, 2013 to the set down date of December 31, 2013.
[10] The plaintiff submits that as the delay was unintentional, and due to her lack of knowledge of the legal process, she should be entitled to her day in court. Furthermore, she “explains the delay” as the Nagarajah defendants’ delay in the delivery of their Statement of Defence.
[11] There is no evidence as to what steps, if any, were taken for between August 2013 and December 31, 2013 nor is there any explanation from the plaintiff or her counsel to explain why. The plaintiff has not provided sufficient evidence of her attempts to contact her solicitor after August 19, 2013, save to state that she tried. There is no evidence about her aborted examination for discovery or about her failure to be in communication with her lawyer from that date to the date of dismissal.
[12] Once the claim was dismissed in January 2014, the evidence fails to explain any steps taken by the plaintiff or her solicitor thereafter. She first learned of the dismissal in October 2015 from former solicitor Wilson but there is no explanation of what steps, if any, she took until the motion was booked in April 2016. The defendants heard nothing from the plaintiff or her counsel from the date of dismissal until November 2015 when Mr. Wilson contacted them.
[13] Solicitor “Z” would have been the best person to provide evidence outlining the period of delay from May 2011 (when he assumed carriage) until December 4, 2015 (when solicitor Wilson became solicitor of record again). From August 2013 Mr. “Z” did not call, write or visit the plaintiff. There is a delay of over two and a half years from solicitor “Z”’s involvement to the date of dismissal. The best evidence is not before the court. Further, when Mr. Wilson was solicitor of record, he kept the plaintiff’s daughter informed about the litigation and there is no evidence from the daughter on this motion.
[14] The defendants may have caused some delay in the delivery of their Statement of Defence but this did not in any way impede the action from proceeding to any examination for discovery. Plaintiff’s counsel could have requested delivery of a Statement of Defence at any time, but did not do so. The late delivery of the Statement of Defence does not explain the delay.
Inadvertence
[15] The plaintiff must lead satisfactory evidence to explain that the deadline to set the action down for trial was missed as a result of inadvertence.
[16] The plaintiff’s evidence is essentially that the action was not set down pursuant to the Status Hearing Timetable Order of Master Glustein dated October 9, 2012 which required that the action be set down by December 31, 2013 because by December 31, 2013, examinations for discovery had not been completed and no mediation had been scheduled so the action could not be set down for trial.
[17] Relying on Justice Molloy sitting in Divisional Court in Nadarajah v Lad, 2015 ONSC 4626, the plaintiff submits that as plaintiff’s counsel’s “conduct was not based on any deliberate intent to not proceed with the action, (and in that sense) it was, in my view, inadvertent.”
[18] None of the evidence filed on behalf of the plaintiff mentions inadvertence. Although the plaintiff seeks to have the court find that because there is no evidence that the plaintiff’s actions to not set the action down for trial was intentional, it is also open to the court to conclude that the actions were deliberate. In my view, given that the action could not get set down because there were many outstanding steps to be completed, and given that nothing was done to complete those steps, the solicitor ignored communications from defence counsel and that there was no request made for an extension of the set down date, it can also be found that it was an intentional act that the action was not set down for trial.
Was the Motion Brought Promptly
[19] The plaintiff must prove that she moved forthwith to set aside the Registrar’s order.
[20] Mr. Wilson learned of the dismissal on October 2, 2015. The plaintiff was made aware of the dismissal on October 13, 2015. Two months later, Mr. Wilson’s agent scheduled the motion but the Notice of Motion was not filed until April 1, 2016 when the solicitor retained for the motion unilaterally scheduled and served the Notice of Motion. Six months elapsed from the time Mr. Wilson learned of the dismissal to the time the motion was served.
[21] Again, as there is no evidence from solicitor “Z”, it is possible that he knew of the dismissal between January 16, 2014 and October 2015, when Mr. Wilson first learned of it, and he simply chose not to bring the motion.
Prejudice to the Defendant
[22] The plaintiff bears the onus of demonstrating an absence of prejudice to the defendants’ ability to present its case at trial as a result of the plaintiff’s delay.
[23] This action arises from a motor vehicle accident that occurred on April 2, 2007. The Statement of Claim was issued on August 19, 2009. As the claim was issued more than two years after the date of loss, the defendants pleaded in their Statements of Defence that the plaintiff’s claim will fail as it was commenced outside of the two-year limitation period prescribed by the Limitations Act. From the date of the loss until now, more than ten years have elapsed. The expiry of a limitation period gives rise to a presumption of prejudice. The plaintiff will be required at trial, or on a motion for summary judgment, to rebut that presumption.
[24] The plaintiff may rebut the presumption of prejudice by adducing satisfactory evidence confirming there is no prejudice to the defendants caused by the delay. In Woodheath Developments Inc. v Goldman, (2001) 2001 CanLII 28019 (ON SC), 56 OR (3d) 658 at para 29; aff’d (2003) 2003 CanLII 46735 (ON SCDC), 66 OR (3d) 731 (Div Ct); leave to appeal dismissed at [2004] OJ 1021 (ON CA) the Court stated:
The presumption of prejudice may be displaced by evidence that the issues in the lawsuit do not depend on the recollection of witnesses for their resolution, or that all necessary witnesses are available and they recall their testimony in detail, and that all documentary evidence has been preserved.
[25] The plaintiff asserts that there will be no prejudice to the Simmons defendants because they obtained a statement in 2008, they have an internal accident report, and their evidence is available. Further the plaintiff asserts no prejudice to the Nagarajah defendants because one of them is the plaintiff’s son and the other is her husband, both of whom knew of the plaintiff’s claims since the date of the accident. The son’s evidence of from his examination for discovery is available.
[26] The plaintiff’s affidavit in support of this motion is silent on the issue of her own ability to recall particulars on the issues of liability and damages. The examination for discovery of the plaintiff on liability and damages has not been conducted. Without her discovery evidence, the defendants do not know the plaintiff’s evidence regarding her recollections of the motor vehicle accident, the extent of her injuries, whether there are independent witnesses or lay witnesses, or whether there are medical witnesses other than the ones that have already been disclosed;
[27] The plaintiff has not put before the court a list of her independent witness, her lay witnesses or her medical witnesses. There is no evidence as to the memories of any witnesses (other than her family members) or even her own memory. The plaintiff’s place of employment is closed down. There is no evidence that her employers or supervisors are still available. She has stated that ‘none of her healthcare providers have advised her that any of her records were going to be destroyed nor has she been advised that any of her medical records have been destroyed’. However, she has failed to confirm that all of their original records have been preserved.
[28] Plaintiff’s counsel admitted that he has not made active inquiries to confirm whether the records produced to date are complete or whether all records in the hands of third parties have been preserved.
[29] The plaintiff has adduced insufficient evidence to rebut the presumption of prejudice.
Other Relevant Factor
[30] This was not an automatic dismissal order of the registrar but rather a dismissal after a set down date that the plaintiff had consented to. The plaintiff had previously been granted an indulgence at the status hearing on October 9, 2012.
Summary
[31] For a Registrar’s Order of Dismissal to be set aside, it is not necessary that a plaintiff meet each of the four Reid factors. Courts have consistently applied a contextual approach in exercising their discretion to balance the interests of the parties to make the order that is most just in the circumstances.
[32] Taking into account all of the relevant considerations including the paucity of the best evidence from the plaintiff’s solicitor, and the weaknesses of the plaintiff’s supplementary affidavit and fresh factum, I find that the defendants’ right to maintain the dismissal of the action is the order that is most just in the circumstances.
[33] My findings, following my consideration of the four Reid factors, are as follows:
The plaintiff has not satisfactorily explained a delay of more than four years, from August 2009 to January 2014. Few steps were taken to advance the action and there is no explanation as to why no steps were taken. The plaintiff has yet to be examined for discovery.
There is no evidence that they always intended to set the action down for trial. The plaintiff missed the agreed upon set down deadline of December 31, 2013 and there is insufficient evidence to find inadvertence.
The plaintiff failed to promptly schedule this motion after learning of the dismissal.
The plaintiff has failed to demonstrate that the defendants will not be prejudiced.
[34] Almost ten years have elapsed since the date of loss. More than three and a half years have elapsed since the Registrar dismissed the action. Too much time has passed for this action to proceed (and ultimately be resolved) on a timely basis. To permit the action to proceed in light of the lengthy delays would put the public’s interest of a timely resolution of the dispute in question. For these reasons, the motion is dismissed.
COSTS
[35] The solicitors delivered costs outlines for the motion and the Simmons defendants also delivered a costs outline for the action. Counsel for the plaintiff on this motion cannot make submissions on costs of the action. In the event that counsel on the motion cannot agree within twenty days on the costs of the motion and other counsel cannot agree on costs of the action, the defendants shall within thirty days deliver brief written submissions (1 – 2 pages) on costs of the motion and costs of the action. The plaintiff shall respond to all costs submissions within forty-five days. There shall be no reply submissions without leave.
MASTER RONNA M. BROTT
Date: August 24, 2017