Citation: Farmer v. 145 King Street West, 2017 ONSC 6003

Court File No.: CV-11-432069 Date: 2017-10-12

Superior Court of Justice - Ontario

Re: Colleen Farmer, Plaintiff And: 145 King Street West, 2748355 Canada Inc. and John MacPherson, Defendants And: Paragon Protection Ltd. carrying on business as Paragon Security, Third Party

Before: Jane E. Ferguson, J.

Counsel: Antal Bakaity, for the Plaintiff Thomas Durcan, for the Defendants 145 King Street West and 2748355 Canada Inc. Christina A. Stewart, for the Defendant John MacPherson

Heard: October 4, 2017

Endorsement

[1] The defendants bring a motion seeking to dismiss the plaintiff’s claim for delay and for failure to abide by a court order. The third party takes no position on this motion.

[2] This action arises as a result of alleged injuries sustained by the plaintiff in two separate accidents. The first accident was due to a slip and fall on August 18, 2009 and involves the defendants 145 King Street West (“145”) and 2748355 Canada Inc. (“274”). The second accident involves a motor vehicle accident which occurred on October 15, 2009, between plaintiff and the defendant John MacPherson (“MacPherson”).

[3] On August 3, 2011, the plaintiff issued her statement of claim.

[4] On December 15, 2011, the statement of defence and crossclaim of 145 and 274 was filed.

[5] On January 14, 2013, the plaintiff served the originating process on MacPherson.

[6] On January 28, 2013 counsel for MacPherson wrote to the plaintiff’s counsel and requested a copy of the affidavit of service, confirmed that the time for service on her client had expired and set out her position that plaintiff’s counsel would be required to bring the necessary motion.

[7] On June 27, 2013, the plaintiff brought a motion to validate service of the statement of claim on MacPherson. Master Haberman dismissed the motion.

[8] On July 24, 2013, the plaintiff issued a companion action against Paragon Protection Ltd. (the “companion action”) with respect to their involvement in the August 18, 2009 slip and fall.

[9] On July 31, 2013, 145 and 274 issued a third party claim against Paragon Protection Ltd.

[10] On January 7, 2014, the Toronto court issued a status notice with respect to this action.

[11] On April 9, 2014, the plaintiff submitted a status hearing request form and the status hearing was set to proceed on August 7, 2014.

[12] On July 23, 2014, counsel for the plaintiff advised that they were seeking an adjournment of the August 7, 2014 status hearing and that she had notified LawPro.

[13] On August 7, 2014, the status hearing proceeded. Master Brott scheduled a show cause hearing for January 14, 2015.

[14] Counsel for MacPherson requested, and was granted an adjournment for the January 14, 2015 show cause hearing due to health issues.

[15] The show cause hearing was adjourned to June 25, 2015. However, it did not proceed on that date as Master Brott had a scheduling issue.

[16] It was eventually agreed between all parties that a timetable be established as opposed to proceeding to a show cause hearing.

[17] On October 9, 2015, Master Brott issued an order validating service of the statement of claim on MacPherson, and also issued a timetable order. The timetable order provides that:

a) pleadings be closed by October 30, 2015;

b) examinations for discovery be completed by May 27, 2016;

c) answers to undertakings be completed by August 26, 2016;

d) motions re: undertakings and refusals be completed by October 28, 2016;

e) mediation be completed by December 30, 2016; and

f) this action to be set down for trial by October 19, 2016.

[18] On May 20, 2016, counsel for the plaintiff wrote to the defendants enclosing an offer to settle.

[19] On June 21, 2016 a counter offer was proposed by the defendants.

[20] On November 30, 2016, after not hearing anything from counsel for the plaintiff, a letter was written by counsel for MacPherson stating her intention to bring a motion for dismissal.

[21] On December 29, 2016, the plaintiff delivered a motion record, to be heard on February 23, 2017. That motion was to amend the timetable as the plaintiff had failed to meet her requirements.

[22] On April 24, 2017, it was agreed by all parties that the plaintiff’s motion to amend the timetable would be heard on the same day as the defendant’s proposed motion to dismiss this claim for delay and for failure to abide by a court order. The motions were scheduled for October 4, 2017.

[23] On June 16, 2017, defence counsel in the companion action advised that the companion action had settled.

[24] On August 21, 2017, the plaintiff served a draft copy of her affidavit of documents. She has yet to serve a sworn affidavit of documents.

[25] On September 12 and 18, 2017, the defendants responded by serving draft copies of their affidavit of documents.

[26] No discoveries have taken place, despite a timetable requiring them to be completed by May 27, 2016.

[27] No mediation has taken place, despite a timetable requiring it to be completed by December 30, 2016.

[28] The action has not been set down for trial despite the fact that pleadings closed on October 22, 2015, and the plaintiff was required to set it down by October 19, 2016 in accordance with the court order. For some reason the matter has not been dismissed by the court.

The Law Rule 24.01

[29] A defendant may move to have an action dismissed pursuant to Rule 24.01 which is as follows:

24.01(1) A defendant who is not in default under these rules or an order of the court may move to have an action dismissed for delay where the plaintiff has failed,

…to set the action down for trial within six months after the close of pleadings

The Test

[30] The Court of Appeal explained that there are two situations in which a court should dismiss a claim for delay: (i) the delay is caused by the intentional conduct of the plaintiff or its counsel that demonstrates a disdain or disrespect for the court process; or (ii) the delay must be inordinate, inexcusable and such that it gives rise to a substantial risk that a fair trial of the issues in litigation will not be possible because of the delay.

Langenecker v. Sauvé, 2011 ONCA 803, paras. 6-7

[31] Master Graham recently summarized other principles to be applied in such a motion:

a. The plaintiff is responsible for moving the action along, not the defendants.

b. Any delay in the prosecution of an action requires an explanation. The plaintiff must show that the delay was not intentional. The delay will be presumed to be intentional without a viable explanation.

c. The onus is on the plaintiff to rebut the presumption of prejudice arising from the unexplained delay by showing that documents have been preserved, and that the issues in dispute do not require the recollection of witnesses, or that necessary witnesses are available with detailed recollection of events.

d. An “inexcusable” delay requires a determination of the reasons for the delay and an assessment of whether those reasons afford an adequate explanation for the delay. Explanations that are “reasonable and cogent” or “sensible and persuasive” will excuse the delay if dismissing the action would be inappropriate. The court will consider the credibility of explanations, the explanations offered for individual parts of the delay and the overall delay and the effect of the explanations considered as a whole.

e. An inordinate delay after the cause of action arose or after the passage of a limitation period gives rise to a presumption of prejudice. The plaintiff’s onus is to persuade the court with convincing evidence that there is no substantial risk that a fair trial is not possible.

f. A court has inherent jurisdiction to control its own process, including the discretionary power to dismiss an action for delay. The power of the court to dismiss an action for delay is not limited to that conferred by the Rules.

Szpakowsky v Tenenbaum, 2017 ONSC 18, para 19

Williams Medical Technologies v Source Medical Corp., 2017 ONSC 2645, para 24

[32] A key factor is whether the plaintiff has provided a reasonable and sufficient explanation of the litigation delay. This plaintiff has provided no explanation. She relies on two deficient affidavits from a law clerk. The causes of action are both from 2009, roughly eight years ago.

[33] The plaintiff has not provided a reasonable excuse for the delay. The plaintiff is responsible for advancing the action. Yet, she has done little to advance this case without being constantly prodded by the defendants. The unsworn affidavit of documents was only served in August of 2017, which was after the initial materials for this motion were served. Discoveries have yet to be completed or seriously discussed by the plaintiff. Further, the defendants 145 and 274 still have yet to be served with any proper responding materials from the plaintiff with respect to this motion. (The plaintiff has provided no personal affidavit).

[34] The plaintiff has not provided any evidence that her actions were inadvertent in not following the agreed upon timetable which was agreed upon to avoid a show cause hearing ordered by Master Brott. Her lawyer at the hearing of this motion said there had been inadvertence, but provided no real and plausible explanation.

[35] In this case the plaintiff has moved to re-work the entire timetable. She has missed all steps. She was not moved promptly.

[36] 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. The statement of claim was served on one of the defendants outside of the basic two-year limitation period prescribed in the Limitations Act. The expiry of a limitation period gives rise to a presumption of prejudice. The plaintiff must rebut that presumption. The plaintiff has not.

[37] The plaintiff has not attended an examination for discovery. Without her discovery evidence, the defendants do not know the plaintiff’s evidence regarding her recollections of the motor vehicle accident or the slip and fall, including the extent of her injuries; whether there are independent witnesses or lay witnesses; or whether there are medical witnesses other than the ones which have already been disclosed.

[38] The plaintiff has also not sworn an affidavit in support of her position on this motion. Therefore, she has presented no evidence on her own abilities to recall particulars on the issues of liability and damages, or that of any of her witnesses. She has presented no evidence that the records held by her healthcare providers and other relevant non-parties have maintained their records and will continue to preserve them to trial.

[39] In sum, the plaintiff has adduced insufficient evidence to rebut the presumption of prejudice. There is a substantial risk that there cannot be a fair trial.

[40] The length of delay both pre and post the timetable order is inordinate. The defendants’ motion to dismiss the action for delay is granted.

The Law Rule 60.12

[41] Rule 60.12 of the Rules of Civil Procedure provides that where a party does not comply with an interlocutory order, the court may strike the pleadings.

[42] In Dew Point Insulation v. JV Mechanical, Bellamy J. sitting on appeal from Master Haberman, allowed an appeal from a dismissal order under Rule 60.12. While the case makes it clear that an interlocutory dismissal of an action is a remedy of last resort, the case also mentioned that Rule 60.12 should be invoked where the litigant has shown a cavalier disregard of his obligations. Bellamy J. found an earlier comment by Master Dash to be appropriate, where he said the rule is to be invoked where a party “has by its failure or refusal to be bound by the rules and orders of the court effectively abandoned its right to participate in the court process or when the breaches have become contumelious such as to demonstrate an utter disregard by the defaulting party for the court’s orders.”

Dew Point Insulation v. JV Mechanical (2009), 84 C.P.C. (6th) 297, 7 C.L.R. (3d) 138 at paras 35-36

[43] In 1066087 Ontario Inc. v. Church of the First Born Apostolic Inc., the action was dismissed where the plaintiff had failed to proceed with the action for four years and had disregarded procedural orders and a case timetable.

1066087 Ontario Inc. v. Church of the First Born Apostolic Inc. (2004), 1 C.P.C. (6th) 199 (Div. Ct.)

[44] In Vacca v. Banks, the action was dismissed after the plaintiffs failed to comply with four separate court orders to give adequate answers to undertakings. A last chance order was provided and when it was not met, the claim was dismissed.

Vacca v. Banks (2005), 6 C.P.C. (6th) 22 (Div. Ct.)

[45] In this action, Master Brott afforded the plaintiff a “lifeline” by way of the timetable order issued on October 9, 2015. The “lifeline” was the plaintiff’s last chance to move this matter promptly through the litigation process and to trial. Although provided with this indulgence of the court, the plaintiff has failed to abide with any of the steps provided for therein. The plaintiff is now requesting another indulgence. The plaintiff has not proceeded with her action in a timely manner and too much time has elapsed since the dates of loss. To allow her action to proceed would put in question the public’s interest of a timely resolution of the dispute.

[46] The defendants’ motion to dismiss the action for breach of a court order is granted.

[47] If the parties cannot agree on costs, I can be sent brief written submissions from the defendants within 14 days and 7 days thereafter from the plaintiff, sent to my assistant at Annette.Elek@ontario.ca .

Jane E. Ferguson, J.

Date: October 12, 2017