Superior Court of Justice - Ontario

CITATION: Neger v. TheStar.com, 2017 ONSC 5585

COURT FILE NO.: CV-11-425830

MOTION HEARD: 20170830

RE: David Neger, Plaintiff

AND:

TheStar.com, Toronto Star Newspapers Limited, Chloe Fedio, David Bruser, Kevin Donovan, Dale Brazao, John D. Cruickshank, Michael Cooke, Canadian Broadcasting Corporation, Peter Mansbridge and Jeannie Stiglic, Defendants

BEFORE: Master Jolley

COUNSEL: David Neger, Moving Party Plaintiff, Self-Represented Iris Fischer for the Responding Party Defendants TheStar.com, Toronto Star Newspapers Limited, Chloe Fedio, David Bruser, Kevin Donovan, Dale Brazao, John Cruickshank and Michael Cooke Justin Safayeni, Counsel for the Responding Party Defendants Canadian Broadcasting Corporation, Peter Mansbridge and Jeannie Stiglic

HEARD: 30 August 2017

REASONS FOR DECISION

[1] The plaintiff brings this motion under Rule 37.14 for an order setting aside the Registrar’s order made 17 February 2017 dismissing his action for delay.

[2] The motion gives rise to two issues: (1) should the Registrar have made the order dismissing the plaintiff’s action for delay; and (2) should the order be set aside.

[3] For the reasons set out below, the motion is allowed and the order of the Registrar set aside.

Facts

[4] In May 2011 the plaintiff commenced this action for defamation arising from publications by the Toronto Star in its newspaper on February 9-12, 2011 inclusive and by the CBC defendants on the National on February 9 and 10, 2011 and in an online article published on cbc.ca on February 9.

[5] The plaintiff alleges, among other things, that his acceptance into a fellowship programme at Brown University’s Rhode Island Hospital was revoked as a result of these allegedly defamatory statements.

Issues

Issue One: Should the registrar have made the order dismissing the plaintiff’s action for delay?

[6] In this unusual case, the plaintiff successfully filed his trial record and three weeks later had his action administratively dismissed.

[7] Although the plaintiff’s action was to have been dismissed on 1 January 2017 under Rule 48.14(1), by 27 January 2017, the court had not yet taken that step. The plaintiff believed that he had until 31 January 2017 to file the record. He served the defendants with his trial record on 26 January 2017 and successfully filed it with the court on 27 January 2017.

[8] The plaintiff’s wife contacted the defendants on 24 January 2017 to obtain the names of mediators and a mediation date so the plaintiff could file the Notice of Name of Mediator and Date of Session at the same time as his trial record.

[9] In response, counsel for the CBC defendants advised the plaintiff that his action was subject to administrative dismissal under Rule 48.14 as it had not been set down by 1 January 2017.

[10] The plaintiff’s wife advised that she and her husband were not aware of this Rule but asked for the defendants’ consent, if needed, to set aside the administrative dismissal and restore the action. The consent was not forthcoming. On 27 January 2017 the court accepted the trial record and the action was set down. The plaintiff confirmed with the court as late as 14 February 2017 that the action was active.

[11] By setting the action down for trial, the plaintiff acknowledged that the matter was ready for trial and all parties were deemed to be ready for trial.

[12] The day the plaintiff confirmed with the defendants that the trial record had been accepted and that the action had not been dismissed, defence counsel contacted the court and asked for clarification.

[13] The defendants’ email stated in part:

“This civil action was brought on May 4, 2011. As of January 1, 2017, it had still not been set down for trial, and none of the exceptions in rule 48.14 applied. Accordingly, the action ought to have been dismissed at that point. My office made inquiries with the Court on January 25, 2017 as to why this matter had not been dismissed, and were advised that court staff were still working their way through thousands of matters that had to be dismissed manually. Understandably, this process takes some time – but I had assumed that, in the interim, matters that should have been dismissed on January 1st would not be set down for trial…. I am now very concerned that despite the clear language in rule 48.14, this action has been wrongly set down for trial. In light of these events, can you please:

• confirm whether this action has not been set down for trial; and

• expedite the process of having this action brought to the Registrar’s attention so that it may be dismissed for delay under rule 48.14.”

[14] After some further email exchanges between defence counsel and the court, on 17 February 2017 the Registrar issued an order dismissing the action for delay.

[15] The defendants submit that the order was properly issued as the plaintiff had not set the action down for trial by 1 January 2017. They argue that the plaintiff should not benefit from the heavy workload the court faced dealing with the volume of matters that were to be dismissed on 1 January 2017 as a result of the Rule change. The plaintiff argues that he set the action down for trial while it was still active and that it was unfair to him to have the court, in effect, reverse its decision to accept his trial record, on an almost ex parte basis.

[16] Rule 48.14(1) provides that the registrar shall dismiss an action for delay if the action has not been set down for trial or terminated by any means by the later of the fifth anniversary of the commencement of the action and January 1, 2017.

[17] It is true that the plaintiff did not set the action down for trial by 1 January 2017. However, he had filed his trial record some three weeks before the Registrar issued his order. I find that, having accepted the trial record, the Registrar should not have signed the dismissal order on the strength of representations from one party alone. The more appropriate action would have been either to hear from the plaintiff or to direct the defendants to bring a motion to dismiss for delay or for failure to comply with a court order.

Issue Two: Should the order dismissing the action for delay be set aside?

[18] If I am incorrect on this point and the order was properly issued, I find that the court should exercise its discretion and set aside the order.

[19] There are four well established factors to consider when deciding whether to set aside an order to dismiss an action: (i) explanation of the litigation delay – a deliberate decision not to advance the litigation will usually be fatal; (ii) inadvertence in missing the deadline – the intention was always to set the action down within the time limit; (iii) the motion is brought promptly – as soon as possible after the order came to the party’s attention; and (iv) no prejudice to the defendant – the prejudice must be significant and arise out of the delay. (Habib v. Mucaj 2012 ONCA 880, quoting Reid v. Dow Corning Corp. (2011) 11 C.P.C. (5th) 80 (Ont. Div. Ct.).

[20] In determining whether to set aside a Registrar’s dismissal order the court is to adopt a contextual approach and weigh all the factors in order to make a decision that is just in the circumstances of the case (Scaini v. Prochnicki 2007 ONCA 63).

Factor One: Is there an explanation for the litigation delay?

[21] The plaintiff is required to 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, either satisfying the court that steps were being taken to advance the litigation toward trial or explain why those steps were not taken (Reid v. Dow Corning Corp. [2001] O.J. No. 2365 (S.C.J.) at paragraph 41). While there are certainly periods of inactivity in the file, the action was moving forward, albeit intermittently. The two major gaps in activity coincide with the plaintiff’s relocation to the U.S. to complete his medical residency and the time from his lawyer’s withdrawal due to a personal leave of absence to the plaintiff filing his notice of intention to act in person.

[22] From the May 2011 commencement of the action until a May 2013 status hearing, the matter did not proceed beyond the pleadings. A timetable was put in place in late 2013 and amended on consent in late 2014 to include a requirement that the action be set down for trial by 15 November 2015. There is a reference in the motion to amend the 2013 timetable that the plaintiff had had difficulty financing the litigation, which had then been resolved. In February 2015 plaintiff’s counsel wrote to the defendants apologizing for having been busy and requesting available dates for discoveries. The plaintiff did return to Ontario to be examined for discovery in September and October 2015. The defendants were also examined in September 2015.

[23] The action was not set down by 15 November 2015 and was administratively dismissed for delay. It was restored on consent on 16 February 2016. The defendants point out that Justice Lederer’s handwritten endorsement of that day noted that “the plaintiff has undertaken to set [the action] down for trial within a month of today’s date”. Mrs. Neger deposed that she and the plaintiff were not aware of that endorsement and only discovered it when she asked the defendants to disclose what they had sent to the Registrar in February 2017.

[24] The parties spent the early months of 2016 discussing security for costs, which was ultimately resolved on the plaintiff’s return to the jurisdiction and his provision of requested information to the defendants. In March 2016 the parties started to discuss mediation dates and dates for answers to undertakings and refusals. What plaintiff’s counsel did not do was set the action down for trial as he had undertaken to do before Lederer, J.

[25] On 31 March 2016 plaintiff’s counsel advised the defendants that he was taking a personal leave of absence from his practice and removing himself as solicitor of record. He advised that the plaintiff was in the process of choosing new counsel. There is no evidence before this court to explain the delay from April 2016 to 8 December 2016, when the plaintiff served his notice of intention to act in person. However, one can assume that the plaintiff spent at least some of that time either figuring out how to move the matter forward himself or inquiring about new counsel.

[26] While the action has proceeded on a less than satisfactory timeline, I am satisfied that an explanation has been provided. The fact is the action is ready for trial – as represented by the filing of the trial record. Had the record not been filed 28 days late, the matter would be on the trial list at this point. The plaintiff’s intention to move the matter forward is evidenced by the fact that he filed a trial record, indicating that he wished the matter to be placed on the trial list.

Factor Two: Inadvertence in missing the deadline

[27] The plaintiff’s wife filed an affidavit on this motion. While she is not a party, she is familiar with the action. She deposed that she and the plaintiff were under the mistaken belief that the deadline to set the matter down for trial was 31 January 2017 and not 1 January 2017. There is nothing in the record indicating how she and the plaintiff came to this date. She did depose that she and the plaintiff were not aware of the administrative dismissal rule which included the 1 January 2017 date and she was not cross examined on this point. I accept that the plaintiff’s failure to set the action down by 1 January 2017 was inadvertent and caused by his misunderstanding of the date. He did set the action down by 31 January 2017, the date he believed was the deadline and also attempted to arrange for mediation. Based on his action in setting the matter down before January 31, there is every reason to believe he would have set the action down in time had he known the set down date was 1 January 2017.

Factor Three: Motion brought promptly

[28] The defendants concede that the motion to set aside the dismissal order was brought promptly. The plaintiff learned of the dismissal of the action on 17 February 2017 and requisitioned a date for this motion on 27 March 2017.

Factor Four: No prejudice to the defendant

[29] The onus is on the plaintiff to rebut the presumption of prejudice in this case. If the plaintiff succeeds in doing so, the defendants may then demonstrate actual prejudice.

[30] The action arises from publications that were disseminated by the defendants in 2011. Discoveries have been completed. The cbc.ca online article is available and the plaintiff ordered a copy of the transcript of the National story and its update.

[31] CBC advised that it is now unable to locate one potential witness. The witness has been known to the defendants since their investigation of this story in 2011, so it is clear that at one point the defendants had the witness’ contact information. It was admitted that the defendants only recently started looking for this witness. If CBC had not located this witness by 31 December 2016, it is not likely that the intervening 27 days until the action was set down for trial or the 48 days until the dismissal order was issued was the factor that made the witness impossible to find. The prejudice must arise from the delay. This is not to shift responsibility for moving the action forward onto the defendants but the defendants do have some responsibility for locating witnesses during the currency of the action to preserve needed evidence (Kwik Snaks Ltd. v. Chepil 2017 ONSC 2921 at paragraph 31). I do not agree with the defendants’ position that it would have been premature for them to attempt to contact the witness or obtain a witness statement before the matter was set down for trial. Similarly, while the defendants argue that certain important documents are in the hands of third parties, it was open to them to obtain an order for production from those non-parties.

[32] Again, while I accept that the plaintiff must account for the delay throughout the period, not simply from a prior status hearing (1196158 Ontario Inc. v. 6274013 Canada Limited et al 2012 ONCA 544 at paragraph 25), had the plaintiff set the action down for trial 28 days earlier, the defendants could not have been heard to complain about prejudice or faded memories, even though the action has taken some time to get to trial.

Conclusion

[33] In conclusion, I note the dicta of Sharpe, J.A. in Marché D’Alimentation Denis Thériault Ltée v. Giant Tiger Stores Ltd. 2007 ONCA 695, as follows:

“Expeditious justice must be balanced with the public interest in having disputes determined on their merits. Where, despite the delay, the defendant would not be unfairly prejudiced should the matter proceed for resolution on the merits, according the plaintiff an indulgence is generally favoured.”

[34] I am satisfied that the plaintiff has provided some explanation for the delay, that his failure to set the action down by 1 January 2017 was inadvertent and that he moved expeditiously when he was told his action had been dismissed even after he had filed his trial record. I am also satisfied that the plaintiff has rebutted any implied prejudice and the defendants have not demonstrated actual prejudice connected to the delay. Taking a contextual approach and weighing all the factors, I find that the most just result is to set aside the registrar’s order dismissing the action for delay and restoring the matter to the trial list.

[35] While I am prepared to grant the plaintiff this indulgence, it comes at a cost. The plaintiff has sought and obtained a discretionary order of this court and the defendants are entitled, in this instance, to their costs of responding to this request (Mollicone v. Town of Caledon 2011 ONSC 883 at paragraphs 12 and 15). While they each have incurred partial indemnity costs in excess of $11,000 (which I find to have been reasonable), they have each requested costs of $4,000.

[36] The order dismissing the action for delay is hereby set aside. The plaintiff shall pay each of the defendants costs in the amount of $4,000 within 45 days of this order.

Master Jolley

Date: 20 September 2017