CITATION: Interhealth Canada Limited v. O’Keefe, 2017 ONSC 5096

COURT FILE NO.: CV-10-402931

MOTION HEARD: 20170614

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Interhealth Canada Limited, Plaintiff

AND:

Michael O’Keefe and Canadian Hospitals Network International Inc., Defendants

BEFORE: Master B. McAfee

COUNSEL: William G. Scott for the Lawyer for the Plaintiff

Michael A. Handler and Emily Evangelista, Lawyers for the Defendant, Michael O’Keefe

Kevin Johnson, Lawyer for the Defendant, Canadian Hospital Network International Inc.

HEARD: June 14, 2017

REASONS FOR DECISION

Nature of the motion

[1] This is a motion brought by the plaintiff Interhealth Canada Limited (Interhealth) for an order setting aside the order of the Registrar dismissing the action for delay dated February 3, 2015.

[2] The defendants Michael O’Keefe (Mr. O’Keefe) and Canadian Hospitals Network International Inc. (CHNI) oppose the motion.

Nature of the action

[3] Interhealth is a corporation based in Toronto that is involved in the provision and management of medical facilities and services. Mr. O’Keefe is a former director of Interhealth. At all material times Mr. O’Keefe was a shareholder, director and officer of CHNI.

[4] In this action Interhealth claims damages in the amount of $104,000,000 for breach of contract, breach of fiduciary duty and for unlawful interference with economic interest against Mr. O’Keefe and for unlawful interference with economic interest against CHNI. Interhealth alleges inter alia that in or about 2005, Mr. O’Keefe, while a director of Interhealth, acquired knowledge of a contract to manage the Cromwell Medical Centre in London, England, and that in or about 2006, he obtained this contract for his own benefit and for the benefit of CHNI.

The Test

[5] The court will apply a contextual approach and consider all relevant factors in determining whether it is just to set aside the dismissal order in the circumstances of the particular case (see Scaini v. Prochnicki, 2007 ONCA 63, 2007ONCA 63 at paras. 23-25, MDM Plastics Limited v. Vincor International Inc., 2015 ONCA 28 at paras. 11-12 and H.B. Fuller Company v. Rogers, 2015 ONCA 173 at paras. 21-23 and Habib v. Mucaj, 2012 ONCA 880 at paras. 5-6).

[6] In determining whether the order of the Registrar ought to be set aside, I am mindful of the tension between two principles of our civil justice system: the preference to have civil actions decided on their merits and the promotion of timely resolution of actions (H.B. Fuller at para. 25). In H.B. Fuller, Justice Weiler states as follows at para. 27:

The court’s preference for deciding matters on their merits is all the more pronounced where the delay results from an error committed by counsel. As the court stated in Habib, at para. 7, “[O]n a motion to set aside a dismissal order, the court should be concerned primarily with the rights of the litigants, not with the conduct of their counsel.” In Marché, Sharpe J.A. stated, at para. 28, “The law will not ordinarily allow an innocent client to suffer the irrevocable loss of the right to proceed by reason of the inadvertence of his or her solicitor”.

[7] I am also mindful of the importance of finality in litigation (Marché d’Alimentation Denis Thériault Ltée. v. Giant Tiger Stores Ltd., 2007 ONCA 695, at paras. 37-38).

[8] Having regard to these principles and the relevant factors, I am satisfied that it is in the interests of justice that I exercise my discretion to set aside the Registrar’s dismissal order.

Explanation of the litigation delay

[9] I am satisfied that the litigation delay has been adequately explained.

[10] The following is a chronology of certain steps that took place in the action.

[11] On June 16, 2008, the action was commenced by statement of claim in Ottawa.

[12] On August 6, 2008, Mr. O’Keefe served a notice of intent to defend.

[13] On August 13, 2008, the mediation office issued a notice of requirement to mediate.

[14] On August 18, 2008, CHNI served a notice of intent to defend and requested an indulgence for the delivery of a statement of defence.

[15] On September 6, 2008, Mr. O’Keefe served a statement of defence.

[16] On September 16, 2008, counsel for Interhealth requested a statement of defence from CHNI by September 30, 2008.

[17] On September 19, 2008, counsel for CHNI requested documents from counsel for Interhealth.

[18] On September 25, 2008, counsel for Interhealth provided counsel for CHNI with the requested documents.

[19] On September 26, 2008, Justice Toscano-Roccamo ordered, on consent, an extension of the deadline to mediate to 90 days following completion of examinations for discovery.

[20] On September 29, 2008, CHNI served a statement of defence.

[21] On November 11, 2008, Interhealth served a reply to Mr. O’Keefe’s statement of defence and a reply to CHNI’s statement of defence.

[22] On December 10, 2008, counsel for Mr. O’Keefe served a sworn affidavit of documents and a notice of examination requiring the attendance of Dr. El Dukair, a representative of Interhealth, for the unilaterally selected dates of April 6 and 7, 2009.

[23] On March 16, 2009, counsel for Interhealth wrote to counsel for Mr. O’Keefe to advise that they had been working for several months to obtain relevant documents for the purpose of an affidavit of documents and that it would take until the end of April 2009 to complete the process and perhaps longer. Counsel for Interhealth also advised that Dr. El Dukair was travelling but would be available in the latter part of June 2009. Counsel for Interhealth proposed examinations for discovery in Toronto for the latter part of June 2009. Counsel for Interhealth also noted that they were awaiting receipt of an affidavit of documents from CHNI.

[24] On March 24, 2009, the examination for discovery of Dr. El Dukair, a representative of Interhealth, was scheduled for June 25 and 26, 2009.

[25] On May 27, 2009, Mr. O’Keefe obtained the order of Justice Aitken, on consent, transferring the action to Toronto as a case management matter.

[26] On June 11, 2009, counsel for Interhealth served a sworn affidavit of documents and a DVD of Schedule “A” documents.

[27] On June 15, 2009, counsel for Interhealth provided a hard copy of its Schedule “A” documents to counsel for Mr. O’Keefe.

[28] On June 19, 2009, counsel for CHNI served a draft affidavit of documents.

[29] On June 25, 2009, Dr. El Dukair was examined for discovery on behalf of Interhealth. The examination for discovery was not completed. The parties agreed that Interhealth would comply with undertakings and provide a supplementary affidavit of documents before continuing with Dr. El Dukair’s examination for discovery.

[30] On July 13, 2009, counsel for Interhealth wrote advising that it was expected that Dr. El Dukair’s undertakings would be complied with by the end of the month and that Dr. El Dukair would be available for his continued examination for discovery on August 5 and 6, 2009, and that Dr. El Dukair would not otherwise be in Toronto until October 2009.

[31] On August 28, 2009, counsel for Mr. O’Keefe wrote enclosing a list of undertakings, refusals and questions taken under advisement on Dr. El Dukair’s examination for discovery.

[32] On September 24, 2009, counsel for Interhealth wrote to propose dates in late October 2009 for the continuation of Dr. El Dukair’s examination for discovery and advised that answers to undertakings would be provided by October 12, 2009.

[33] On October 19, 2009, counsel for Interhealth wrote to counsel for Mr. O’Keefe to providing answers to undertakings. Also on this date, counsel for Interhealth wrote to all counsel to reschedule the continuation of the examination for discovery of Dr. El Dukair and proposed November 16 or December 15, 2009.

[34] On January 14, 2009, counsel for Interhealth wrote to counsel for Mr. O’Keefe regarding undertakings.

[35] On April 12, 2010, counsel for Interhealth counsel wrote to all counsel with respect to agreeing to a schedule to facilitate the advancement of the action. It was noted that dates for the continued examination for Dr. El Dukair had been proposed for March and April 2010, but that counsel for Mr. O’Keefe was commencing a lengthy trial in early May 2010.

[36] On April 22, 2010, counsel for Mr. O’Keefe wrote in response to counsel for Interhealth’s letters dated April 9, 12 and 20, 2010, providing his position with respect to the continued examination for discovery of Dr. El Dukair and proposed mediators.

[37] On May 5, 2010, counsel for Interhealth prepared a requisition to request that the action be transferred to Toronto in accordance with the order of Justice Aiken dated May 27, 2009. Thereafter the action was transferred to Toronto.

[38] On May 6, 2010, counsel for Mr. O’Keefe wrote to advise that he was prepared to schedule examinations for discovery of mid-June 2010 because the lengthy trial resolved. Counsel for Mr. O’Keefe’s position was that the continued examination for discovery of Dr. El Dukair must be completed first and that the continued examination for discovery could not take place until all undertakings had been answered an a supplementary affidavit of documents served.

[39] On May 26, 2010, counsel for Interhealth served a supplementary affidavit of documents and proposed June 17, 2010 for the continued examination for discovery of Dr. El Dukair.

[40] On May 28, 2010, Master Glustein, as he then was, assigned me to case manage this action.

[41] On June 2, 2010, counsel for Interhealth wrote to counsel for Mr. O’Keefe in response to a letter from counsel for Mr. O’Keefe dated May 28, 2010, concerning issues with the supplementary affidavit of documents and requested that counsel for Mr. O’Keefe confirm which undertakings, if any, remained outstanding.

[42] On June 16, 2010, Interhealth served the supplementary schedule “A” documents.

[43] On September 7, 2010, counsel for Interhealth requested a case conference.

[44] On September 9, 2010, the registrar issued a status notice.

[45] On September 14, 2010, a notice convening a case conference was issued returnable October 26, 2010. The purpose of the case conference was to establish a timetable.

[46] On October 26, 2010, a case conference proceeded before me. A motion to be brought by Mr. O’Keefe for answers to undertakings given by Interhealth and a further and better affidavit of documents from Interhealth was scheduled for December 22, 2010.

[47] On November 30, 2010, counsel for Interhealth provided further answers to undertakings.

[48] On December 22, 2010, Mr. O’Keefe’s motion proceeded before me. I released my decision on January 12, 2011. I made rulings with respect to various undertakings and ordered Interhealth to serve a further and better affidavit of documents. On consent, I also timetabled the remaining steps in the action including a set down date of December 30, 2011. If the parties were unable to agree on costs, I timetabled the delivery of written costs submissions.

[49] On January 14, 2011, counsel for Interhealth wrote to counsel for Mr. O’Keefe regarding my decision of January 12, 2011, and schedule “B” documents and costs.

[50] On January 17, 2011, counsel for Mr. O’Keefe wrote disagreeing with the position of counsel for Interhealth regarding schedule “B” documents and outlined Mr. O’Keefe’s position regarding costs.

[51] On January 17, 2011, counsel for Interhealth wrote to all counsel with respect to the continuation and completion of examinations for discovery and requested counsel’s availability.

[52] On January 18, 2011, counsel for Mr. O’Keefe wrote to confirm that examinations could be arranged to take place after March 15, 2011, but that he was not prepared to proceed until there had been compliance with my order dated January 12, 2012, including any order I may make with respect to costs.

[53] On January 18, 2011, counsel for Interhealth provided a further and better affidavit of documents and requested counsel for Mr. O’Keefe for dates for the continuation of Dr. El Dukair’s examination for discovery and for the examination for discovery of Mr. O’Keefe.

[54] On January 19, 2011, counsel for Interhealth wrote to counsel for CHNI regarding Interhealth’s schedule “B” documents.

[55] On January 28, 2011, counsel for Interhealth served an unsworn further and better affidavit of documents.

[56] On February 24, 2011, counsel for Interhealth served a sworn further and better affidavit of documents.

[57] On February 25, 2011, on consent, Interhealth was ordered to pay to Mr. O’Keefe costs of the motion heard on December 22, 2011, in the all-inclusive amount of $8,475.00. The costs have been paid.

[58] On March 3, 2011, counsel for Interhealth served a CD of the schedule “A” documents listed in the further and better affidavit of documents.

[59] On March 18, 2011, the continued examination for discovery of Dr. El Dukair was scheduled for April 26 and 28, 2011.

[60] On April 13, 2011, counsel for Interhealth wrote to counsel for Mr. O’Keefe regarding the completion of examinations for discovery and stated that more than two days would be needed to complete discoveries.

[61] On April 15, 2011, counsel for Mr. O’Keefe wrote in follow up to his letter dated April 14, 2011, to advise that his client would not agree to a variation of my order concerning the days to complete discoveries.

[62] On April 19, 2011, counsel for Mr. O’Keefe wrote to advise that as a result of personal reasons the examinations for discovery scheduled for June 20, 2011 would need to be rescheduled.

[63] On April 25, 2011, counsel for Mr. O’Keefe served a supplementary affidavit of documents.

[64] On April 28, 2011, the continued examination for discovery of Dr. El Dukair proceeded.

[65] On May 4, 2011, counsel for Interhealth wrote providing documentation and advised that further documents were available for counsel’s review.

[66] On May 9, 2011, counsel for Interhealth served a notice of examination requiring a representative of CHNI to attend examinations for discovery on June 16, 2011 and requiring Mr. O’Keefe to attend at an examination for discovery on July 12 and 13, 2011.

[67] On May 9, 2011, counsel for Interhealth wrote requesting CHNI’s sworn affidavit of documents.

[68] On June 10, 2011, counsel for Interhealth wrote enclosing further documents recently discovered.

[69] On June 16, 2011, a representative of CHNI was examined for discovery.

[70] On June 30, 2011, counsel for Interhealth wrote to advise that he was scheduled to undergo a medical procedure on July 13, 2011, requested another date for the examination of Mr. O’Keefe.

[71] The July 12 and 13, 2011, examinations for discovery of Mr. O’Keefe were rescheduled for September 12 and 13, 2011, and proceeded on these dates.

[72] On September 16, 2011, counsel for Mr. O’Keefe wrote providing an answer to an undertaking and to correct a statement he made on Mr. O’Keefe’s examination for discovery.

[73] On November 29, 2011, counsel to Mr. O’Keefe wrote to counsel for Interhealth to request Interhealth’s theory of damages before examinations resumed and requested a date for the answers to remaining undertakings.

[74] On December 5, 2011, on consent, a timetable for the remaining steps in the action including a set down date of December 31, 2012, was ordered.

[75] On December 12, 2011, counsel for Interhealth wrote to counsel for CHNI to request answers to undertakings and his position regarding the under advisements given at the examination for discovery of a representative of CHNI.

[76] On January 20, 2012, counsel for Interhealth wrote following up on their letter dated November 17, 2011, providing further requesting answers to undertakings and answering certain questions taken under advisement.

[77] On January 28 and 29, 2012, the continued examination for discovery of Dr. El Dukair proceeded.

[78] On May 7, 2012, counsel for Mr. O’Keefe wrote to confirm his availability for the continued examination for discovery of Dr. El Dukair for June 13 and 14, 2012.

[79] On May 9, 2012, counsel for Interhealth wrote providing further documentation recently discovered.

[80] On May 9, 2012, counsel for Interhealth wrote to counsel for CHNI to request answers to outstanding undertakings given on the examination for discovery of CHNI.

[81] On May 14, 2012, counsel for Interhealth wrote to counsel for Mr. O’Keefe regarding undertakings.

[82] On May 17, 2012, counsel for Mr. O’Keefe wrote to request if there was further information regarding Interhealth’s theory of damages and asked if the timetable for completion of examinations for discovery needed to be revisited.

[83] On May 29, 2012, counsel for CHNI wrote to counsel for Interhealth regarding Interhealth’s failure to quantify damages.

[84] On May 30, 2012, counsel for Interhealth confirmed that it required CHNI’s answers to undertakings to complete its analysis.

[85] On June 5, 2012, counsel for Interhealth and counsel for Mr. O’Keefe exchanged letters concerning proposed amendments to the statement of claim and CHNI’s examination of Dr. El Dukair.

[86] On June 25, 2012, counsel for Interhealth served a notice of motion for leave to amend the statement of claim, returnable on a date to be determined.

[87] On June 28, 2012, counsel for Interhealth served a notice of motion for an order striking CHNI’s defence for failure to answer undertakings or an order that undertakings and refusals be answered, returnable on a date to be determined.

[88] On July 4, 2012, counsel for Interhealth served a motion record for a motion for leave to amend the statement of claim returnable October 22, 2012.

[89] On July 27, 2012, counsel for Interhealth wrote providing further answers to undertakings.

[90] In or around July and August 2012, the continued examination for discovery of Dr. El Dukair was scheduled for August 28 and 29, 2012. The continued examination for discovery of Dr. Dukair proceeded on August 28 and 29, 2012.

[91] On August 24, 2012, counsel for Interhealth requisitioned a motion to strike CHNI’s defence or to compel answers to undertakings. The motion was scheduled for October 22, 2012, and subsequently rescheduled for December 11, 2012.

[92] On September 10, 2012, counsel for Interhealth served a motion record for the December 11, 2012 motion.

[93] On October 24, 2012, on an unopposed basis, leave was granted to amend the statement of claim.

[94] On November 29, 2012, counsel for Interhealth served a supplementary motion record for the December 11, 2012, motion.

[95] On December 4, 2012, CHNI served a responding motion record for the December 11, 2012 motion.

[96] On consent, the December 11, 2012, motion was adjourned.

[97] On December 12, 2012, on consent, a timetable was ordered including a new set down date of August 31, 2013.

[98] On January 16, 2013, counsel for Interhealth wrote to the court requesting a new return date for the December 11, 2012, motion. The motion was scheduled for a full day on May 15, 2013.

[99] On May 7, 2013, counsel for Interhealth wrote to counsel for CHNI in response to CHNI’s request for an adjournment of the May 15, 2013 motion. The adjournment request was opposed. However, due to issues with the court file, the motion was rescheduled for September 20, 2013.

[100] On September 20, 2013, Interhealth’s motion to strike CHNI’s statement of defence and/or compel CHNI to answer undertakings.

[101] On November 26, 2013, my decision from the September 20, 2013, motion was released. On consent, I also ordered a new timetable including a set down date of January 31, 2015.

[102] On December 16, 2013, counsel for Interhealth wrote to counsel for CHNI to enclosing a draft order with respect to my endorsement dated November 26, 2013, and provided his position with respect to costs.

[103] On February 15, 2014, counsel for CHNI provided answers to undertakings.

[104] On February 25, 2014, counsel for CHNI wrote to enclose CHNI’s responses to questions as required by my order of November 23, 2014.

[105] On May 23, 2014, counsel for Interhealth wrote to counsel for CHNI to advise that they have been working diligently on answers to undertakings but that there had been some delay obtaining information and that the bulk of the undertakings would be answered by the middle of the following week.

[106] On July 30, 2014, counsel for Interhealth wrote providing answers to undertakings and questions taken under advisement during Dr. El Dukair’s examination for discovery of August 28 and 29, 2012.

[107] On August 21, 2014, counsel for CHNI wrote to counsel for Interhealth in response to counsel for Interhealth’s letter of July 30, 2014, with questions arising from the answers to undertakings.

[108] On September 10, 2014, counsel for CHNI wrote to counsel for Interhealth in follow up to their letter of August 21, 2014. That same day, counsel for Interhealth wrote to advise that he was scheduled to meet with Dr. El Dukair the week of September 22, 2014.

[109] On September 11, 2014, counsel for CHNI wrote to counsel for Interhealth advising that he looked forward to hearing from counsel for Interhealth following the meeting.

[110] On September 22 and 23, 2014, counsel for Interhealth met with Dr. El Dukair to discuss the issue of undertakings. Counsel for Interhealth did not write to the lawyers for the defendants with respect to the meeting because he took the view that all of the undertakings had been answered and there was no additional information to provide.

[111] On November 19, 2014, counsel to CHNI wrote to counsel for Interhealth to follow up on their email of September 10, 2014.

[112] Pleadings have been exchanged. The parties have served affidavits of documents and the plaintiff has served supplementary affidavits of documents and a further and better affidavit of documents. Examinations for discovery have proceeded over seven days. The statement of claim has been amended. Three motions have been brought. Four consent timetables were ordered.

[113] Although the action proceeded at a leisurely pace, the above noted steps taken in the action by Interhealth and counsel for Interhealth demonstrate an intention to proceed with the action. The above noted steps demonstrate that the action was at all times proceeding. There has been no deliberate intention to abandon the action.

[114] I am satisfied that any litigation delay has been explained in all of these circumstances.

Inadvertence in missing the deadline

[115] My order dated November 26, 2013, required the action to be set down for trial on or before January 31, 2015. Counsel for Interhealth overlooked diarizing the set down date. The failure to diarize the set down date was unintentional. I am satisfied that the deadline was missed as a result of inadvertence.

Motion brought promptly

[116] Counsel for Interhealth learned of the dismissal order in or about October 2015, when he received an email from counsel for CHNI in follow up to a voice mail message. The dismissal order was sent to the incorrect address and had not previously been received by counsel for Interhealth.

[117] The defendants argue that Interhealth, not their counsel, learned of the dismissal order in or about February 2015. The defendants rely on evidence given on the cross-examination of Fuad Zubaidi held on August 4, 2016, and in particular the answer to question 392. When reading the questions that proceed question 393, I am not satisfied that it is Mr. Zubaidi’s evidence that he learned of the dismissal by February 2015. Mr. Zubaidi is being asked a series of questions concerning what proceeded the dismissal of February 2015. There is no explanation of how Interhealth would have learned of the dismissal before their counsel learned of the dismissal. I do not agree with the defendants’ position that Interhealth learned of the dismissal in February 2015.

[118] The notice of motion was served on January 29, 2016.

[119] In Finlay v. Paassen, 2010 ONCA 204, a delay of two years in bringing the motion was not fatal.

[120] A period of three months, that included the holidays in December, does not constitute delay in bringing the motion. I am satisfied that the motion was brought promptly after Interhealth’s counsel learned of the dismissal order in or about October 2015.

No prejudice to the defendants

[121] Prejudice may be presumed in light of the passage of time or if a limitation period has passed. The plaintiff bears the burden of rebutting the presumption. Where the presumption is rebutted, the onus shifts to the defendant to establish actual prejudice.

[122] As stated by Justice van Rensburg in Carioca’s Import & Export Inc. v. Canadian Pacific Railway Limited, 2015 ONCA 592 at paragraph 57: “The prejudice at issue is to the respondent’s ability to defend the action as a result of the appellant’s delay, not as a result of the sheer passage of time: MDM Plastics Ltd. v. Vincor International Inc., 2015 ONCA 28, at paras. 25 and 33.”

[123] Affidavits of documents have been served. Examinations for discovery have been conducted and transcripts are available.

[124] Mr. O’Keefe and Mr. Handa, the Chairman and President of CHNI have knowledge of the matters in issue and are able to give evidence on behalf of the defendants.

[125] To the extent that the defendants submit that they require a further examination for discovery of Interhealth, they did not schedule a further examination notwithstanding a consent court ordered deadline for such an examination.

[126] It is Interhealth’s position that all undertakings have been answered. To the extent that the defendants argue that certain undertakings remain outstanding, no motion was brought to compel answers to undertakings notwithstanding a consent court ordered deadline to bring such a motion.

[127] The failure to schedule a further examination or bring such a motion undermines the defendants’ position that there is actual prejudice as a result of Interhealth’s failure to answer undertakings or as a result of a further examination for discovery of Interhealth being required.

[128] Mr. O’Keefe alleges prejudice because he has “lost touch” with William Saunderson. On cross-examination, Mr. O’Keefe admitted that he made no efforts to contact William Saunderson since the commencement of the action.

[129] Mr. O’Keefe alleges prejudice because he has “lost touch” with Wilson Parasiuk. On cross-examination Mr. O’Keefe stated that he spoke to Wilson Parasiuk since the commencement of the action but did not discuss the lawsuit because “I had no reason to.”

[130] Mr. O’Keefe alleges prejudice because he has “lost touch” with Frank Jennings and Shamus Jennings. On cross-examination Mr. O’Keefe stated that he has made no attempts to contact either Frank Jennings or Shamus Jennings because “I had not reason to.”

[131] Mr. O’Keefe also alleges prejudice because he has “lost touch” with Ali Jaffar, once the majority owner of CHNI. Mr. O’Keefe states that he attempted to reach Mr. Jaffar by email. I was not referred to evidence of other attempts to ascertain current contact information for Mr. Jaffar.

[132] Mr. O’Keefe also alleges prejudice because he has “lost touch” with Dr. Abdullah Al Muhari. Mr. O’Keefe states that he has attempted to reach him by email with no response. I was not referred to evidence of other attempts to ascertain current contact information for Dr. Al Muhari.

[133] CHNI alleges prejudice because it does not know the whereabouts of any other former employees, officers or directors of CHNI, other than Mr. O’Keefe, has “lost touch” with Ali Jaffar, and has no knowledge of the whereabouts of Dr. Al Muhari. I was not referred to evidence of reasonable efforts made by CHNI to locate and contact these witnesses.

[134] CHNI also alleges prejudice because it has discovered that the Rotary Group has been liquidated. I was not referred to evidence of when the Rotary Group was liquidated or evidence of reasonable efforts to locate Frank and Shamus Jennings who, according to the evidence of CHNI, were the driving force of the entity.

[135] Interhealth has obtained and provided contact information for Mr. Jaffar and Dr. Al Muhari.

[136] To the extent that the defendants have made no effort to contact potential witnesses or only did so in the face of this motion, or spoke with witnesses but did not discuss the lawsuit, the claim that the defendants are prejudiced as a result of the possible unavailability of witnesses is undermined (see Carioca at paras. 75-76).

[137] In addition, if the defendants were concerned with fading memories, the age of witnesses or witnesses no longer being available, the defendants ought to have taken steps to obtain statements and preserve evidence. The defendants cannot create prejudice by failing to do something they reasonably ought to have done.

[138] Mr. O’Keefe and CHNI consented to a timetable order made on November 26, 2013, ordering a set down date of January 31, 2015. This suggests that there would be no non-compensable prejudice if the action was to have been set down for trial on or before January 31, 2015 (see Carioca at para. 59).

[139] In these circumstances, I am satisfied that the plaintiffs have rebutted any presumption of prejudice. I am not satisfied of actual prejudice to the defendants.

Other factors

[140] The defendants argue that an adverse inference ought to be drawn as a result of the failure of the CEO of Interhealth to file affidavit evidence on this motion. I disagree. In support of the motion, Interhealth filed a 102 paragraph affidavit and a 16 paragraph supplementary affidavit of counsel for Interhealth and a 7 paragraph affidavit from Fuad Zubaidi, a board advisor to Interhealth, who swore that he had knowledge of the matters deposed. Interhealth’s counsel and Mr. Zubaidi were cross-examined on their affidavits. Counsel for Interhealth was asked 681 questions and Mr. Zubaidi was asked 614 questions. I am not satisfied that any adverse inference should be drawn for failure to file an affidavit from Interhealth’s CEO in these circumstances.

[141] To the extent that the defendants argue that Interhealth has a remedy against their counsel, I do not agree that this is an appropriate consideration on this motion. I have not found any deliberate conduct on the part of counsel for Interhealth. As stated by Justice Laskin in Finlay at paras. 32 and 33:

[32] …Speculation about whether a party has a lawsuit against its own lawyer, or potential success of that lawsuit, should not inform the court’s analysis of whether the registrar’s dismissal order ought to be set aside.

[33] In my view, on a motion to set aside a dismissal order, the court should be concerned primarily with the rights of litigants, not with the conduct of their counsel. As Sharpe J.A. noted in Marché at para. 28, “The law will not ordinarily allow an innocent client to suffer the irrevocable loss of the right to proceed by reason of the inadvertence of his or her solicitor.” Sharpe J.A. went on to recognize that the situation may be different where the lawyer’s conduct is not inadvertent but deliberate.

Finality

[142] In Marché Justice Sharpe writes about the importance of finality in litigation (see paras. 37-38) and I am mindful of the need for finality in litigation. However, in the circumstances of this case, unlike in Marché, years did not pass between the dismissal order and the bringing of the motion and the file was not deliberately abandoned.

[143] Applying a contextual approach and considering relevant factors and principles, I am satisfied that it is just that I exercise my discretion to set aside the Registrar’s order dismissing the action for delay.

Timetable and Costs

[144] The parties shall attempt to agree to a timetable for the balance of the steps in this action. If a timetable is agreed upon, the parties may submit same to me in writing on or before October 10, 2017, for approval. If the parties are unable to agree to a timetable the parties shall re-attend before me to speak to the issue of timetabling. Any such attendance shall be booked, not necessarily heard, on or before November 7, 2017. The Registrar shall not dismiss the action for delay pending further order of this court.

[145] If any party seeks costs and if after reasonable attempts to agree on costs the parties are unable to agree, the parties may re-attend before me to speak to the issue of costs. Any such attendance shall be booked, not necessarily heard, on or before November 7, 2017

Master B. McAfee

Date: September 6, 2017