CITATION: AUBE v. QUINNELL, 2017 ONSC 5662
COURT FILE NO.: CV-11-438619
MOTION HEARD: SEPTEMBER 22, 2017
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Afton Aube
v.
Samantha Quinnell, J-Brian Quinnell and Nissan Canada Inc.
BEFORE: MASTER R. A. MUIR
COUNSEL: Bronwyn M. Martin, agent for the lawyer for the plaintiff Caroline Mowat for defendants
REASONS FOR DECISION
[1] The plaintiff brings this motion pursuant to Rule 37.14 of the Rules of Civil Procedure, RRO 1990, Reg. 194 (the “Rules”) for an order setting aside the order of the registrar dated January 6, 2015 dismissing this action for delay. The plaintiff also seeks an order establishing a new timetable for the completion of the remaining steps in this action.
[2] The defendants are opposed to the relief sought by the plaintiff.
BACKGROUND AND HISTORY OF THE LITIGATION
[3] This action arises from a motor vehicle accident that took place on February 2, 2011. The statement of claim was issued nine months later on November 2, 2011. A statement of defence was filed on July 17, 2012.
[4] It appears that at least initially, this action proceeded with very little delay. The examination for discovery of the plaintiff took place on September 20, 2012 and November 5, 2012. The plaintiff’s lawyer at the time then followed up in order to obtain answers to undertakings.
[5] A modest period of delay appears to have taken place in 2013. The plaintiff was slow to answer her undertakings and the defendants were forced to bring a motion returnable January 20, 2014. Master Graham made an order on consent requiring the plaintiff to produce medical records from two of her doctors. From this, I infer that all other undertakings had been satisfied by that date. I note that the defendants’ lawyer’s correspondence dated January 31, 2013 lists 26 undertakings. However, it does appear from the evidence that a few undertakings may remain outstanding. It also appears that the plaintiff has also failed to fully respond to certain questions and document requests arising from her answers to undertakings.
[6] There appears to have been a breakdown in the relationship between the plaintiff and her first lawyer in early 2014. The plaintiff retained her second lawyer in June 2014. A status notice was issued by the court in June 2014. The plaintiff’s lawyer submitted a status hearing request form. The plaintiff’s lawyer engaged in discussions with the lawyer for the defendants and ultimately agreed to a new timetable. On November 19, 2014 Master Graham made an order that required this action to be set down for trial by December 31, 2014.
[7] During this time period the plaintiff’s lawyer was also taking steps to answer undertakings and production requests and schedule a mediation session. On December 15, 2014, the plaintiff attended a defence medical assessment.
[8] The plaintiff’s lawyer failed to set this action down by December 31, 2014. On January 6, 2015, the registrar made an order dismissing this action for delay. It appears that the plaintiff’s lawyer received a copy of the dismissal order on January 14, 2015. He did not advise the plaintiff of the dismissal of her action. It does appear that he contacted the lawyer for the defendants soon after receiving the order. On February 25, 2015, the defendants’ lawyer confirmed that she had received instructions not to oppose any motion to set aside the dismissal order.
[9] At the same time the plaintiff’s lawyer continued to advance this action by producing additional medical records and coordinating the plaintiff’s attendance at a further defence medical examination. The defendants also continued to take steps to advance this action during this time period despite the outstanding dismissal order.
[10] What the plaintiff’s lawyer did not do, however, was actually bring a motion to set aside the dismissal order. The plaintiff’s former lawyer has provided evidence that he was a sole practitioner at the time, was overwhelmed with his case load and lacked sufficient administrative support.
[11] It was not until the plaintiff’s current lawyers were retained in late 2016 that any steps were taken to bring the necessary motion. Ultimately, the notice of motion was served in April 2017 with an initial return date of June 12, 2017. It was further adjourned at my initiative and ultimately heard by me on September 22, 2017.
THE TEST ON A MOTION TO SET ASIDE A DISMISSAL ORDER
[12] The law relating to motions for an order setting aside an administrative dismissal order is well settled. It is summarized in my decision in Bagus v. Telesford, 2014 ONSC 3512 (Master) at paragraphs 23 to 27. Four factors are of central importance. The court must consider the explanation for the delay, whether the deadline was missed due to inadvertence, any delay in bringing the motion to set aside the dismissal order and prejudice to the defendant such as to give rise to a significant risk to a defendant in terms of presenting its case at trial. Of these factors, prejudice is the key consideration. Prejudice is presumed and the onus is on the plaintiff to rebut this presumption.
[13] In determining a motion such as this, the court must balance the right of a litigant to have her claim decided on the merits against the public and private interest in the timely resolution of civil disputes. The preference in our system of civil justice is for disputes to be decided on their merits. Ultimately, the court must weigh all relevant considerations and make the order that is just in the circumstances.
[14] I have considered and applied these factors and the other principles set out in Bagus. In my view, it is just that the dismissal order be set aside.
ANALYSIS
[15] I do not view the delay in the progress of this action as particularly long or inordinate. The claim is nearly six years old. However, it is important to note that the accident giving rise to the claim took place in February 2011, just over six years ago. The statement of claim was issued soon after the accident took place.
[16] Much has been done to move this action forward. The plaintiff has made significant production to date. Examinations for discovery have taken place. Transcripts are available. The plaintiff has attended one defence medical assessment and is available and willing to attend a second, if necessary. Counsel for the plaintiff has followed up in an effort to obtain further production and schedule a mediation session. The action is ready to be set down subject to mediation taking place.
[17] It is true that the progress of this action has not been perfect. Some requested production remains outstanding. The failure of the plaintiff to attend the January 2015 defence medical appointment and pay the resulting cancelation fee is troubling. The long delay by the plaintiff’s former lawyer in bringing the motion to set aside the dismissal order is less than satisfactory. However, as I have stated in several other decisions, the explanation for the delay need not be perfect. It simply need to be adequate. There have been a few gaps in the progress of the action but nothing that I view as extraordinary or rising to a level that would justify denying the plaintiff a right to a determination of her claim on the merits. This is not a situation where a claim has been ignored and forgotten for lengthy periods of time. Steady and regular progress was made to move the action toward the point where it can be set down for trial. Finally, the plaintiff has given evidence that she was in regular contact with both of her former lawyers in order to ensure her action was proceeding in the appropriate fashion. It is her evidence that she always intended to pursue this claim.
[18] I am therefore satisfied that the plaintiff has met this element of the test.
[19] I am also satisfied that the set down deadline was missed due to inadvertence. The unchallenged evidence of the plaintiff’s former lawyer is that he failed to diarize the set down deadline. He took immediate steps to contact the defendants’ lawyer as soon as he received the dismissal order and stated his intention to seek an order setting aside the dismissal. He obtained the defendants’ agreement to not oppose an order to set aside the dismissal. Moreover, at the same time, he was taking other steps to move this action forward, such a communicating with the defendants’ lawyer in respect of the cancelled defence medical examination and further medical related productions. The plaintiff attended a defence medical examination just two weeks before the missed set down deadline. In my view, the failure to set the action down for trial in a timely manner must have been inadvertent. No other explanation makes sense in the circumstances of this action.
[20] In my view, this motion has not been brought promptly. I appreciate that the plaintiff herself was unaware of the dismissal order. However, her lawyer was aware of it from the outset. I do not accept the explanation provided by the plaintiff’s former lawyer as being adequate in the circumstances. If a lawyer is unable to handle all of the files for which he has been retained, he has an obligation as a legal professional to find another lawyer to take on the files he cannot handle or at least advise his client of the status of her claim and recommend other legal representation. A lawyer also has a duty to adequately staff his or her office. A dismissal order is a serious matter. It requires immediate attention even if a defendant has indicated that it will not oppose such a motion. Surely any such position taken by a defendant is implicitly conditional on the motion being brought within a reasonable period to time. Twenty-seven months to bring a motion to set aside a dismissal order cannot be described as prompt in any circumstances.
[21] I am satisfied that the plaintiff has rebutted any presumption of prejudice. In my view, the presumption of prejudice is not particularly strong in this case. I have found that there has been no inordinate delay. Much has taken place in connection with this action. It is mostly ready to be set down. Production has been made for the most part and discovery has taken place. Witnesses are available. The plaintiff has been examined by a defence medical expert and is willing to be examined again. The defendants have been aware of this claim from the beginning and represented by counsel throughout. The defendants have not provided any evidence of actual prejudice.
[22] The defendants do take issue with the plaintiff’s failure to respond to all of the defendants’ requests for additional post-discovery production. It does appear that the plaintiff’s production may not be 100% complete. However, in my view it is not necessary for a plaintiff to demonstrate that every conceivable document requested by a defendant has been produced in order to rebut the presumption of prejudice, especially when that presumption is not very strong. The plaintiff has made very substantial production to date.
[23] I am therefore satisfied that the plaintiff has met her burden in terms of prejudice. In my view, the defendants will not be prejudiced in defending themselves at trial.
[24] When deciding a motion to set aside an administrative dismissal order, the court must adopt a contextual approach in which it weighs all relevant considerations to determine the result that is just in the circumstances. The court must, of course, balance the strong public and private interest in promoting the timely resolution of disputes with the entitlement of a plaintiff to have her claim decided on the merits. However, the preference in our system of civil justice is for the determination of disputes on their merits.
[25] The plaintiff has satisfied three of the four relevant factors, including the key consideration of prejudice. The plaintiff’s unchallenged evidence is that she always intended to pursue this claim. For the most part, the courts should focus on the rights of the parties rather than the conduct of counsel.
[26] I have therefore concluded that it is just in the circumstances of this action that the dismissal order be set aside. However, as a term of my order I am suspending pre-judgment interest from January 6, 2015 to September 22, 2017. The plaintiff shall also pay the outstanding defence medical cancellation fee in the amount of $847.50 by October 25, 2017.
ORDER
[27] I therefore order as follows:
(a) the order of the registrar of January 6, 2015 is hereby set aside;
(b) pre-judgment interest shall be suspended from January 6, 2015 to September 22, 2017;
(c) the plaintiff shall pay the outstanding defence medical cancellation fee in the amount of $847.50 by October 25, 2017;
(d) the parties shall confer and attempt to agree on the issue of a timetable for the remaining steps in this action;
(e) if the parties are unable to agree on a new timetable they shall provide the court with brief submissions in writing by October 25, 2017; and,
(f) if the parties are unable to agree on the issue of the costs of this motion, they shall provide the court with brief submissions in writing, also by October 25, 2017.
Master R.A. Muir
DATE: 20170926