Correia v. Pinto, 2017 ONSC 6126

Correia v. Pinto, 2017 ONSC 6126

CITATION: Correia v. Pinto, 2017 ONSC 6126

COURT FILE NO.: 99-BN-2228

DATE: 2017 10 13

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MARIA JUDITE DA SILVA CORREIA, Plaintiff

AND: TERESA DA SILVA PINTO and EDUARDO PEREIRA PINTO, Defendants

BEFORE: Van Melle, J.

COUNSEL: Satwant S. Merwar, for the Plaintiff

Edwin G. Upenieks and Angela H. Kwok, for the Defendants

HEARD: October 10, 2017

ENDORSEMENT

1The plaintiff brings this motion for an order restoring this matter to the trial list. The defendants oppose the motion.

2The plaintiff commenced this action on May 12, 1999, and pleadings were closed on July 7, 1999. The defendants were examined for discovery on December 13, 1999 and October 8, 1999. The examination for discovery of the plaintiff has never been completed.

3This matter was struck from the trial list twice, in 2000 and 2004.

4The plaintiff and the defendant, Teresa, are sisters. Their father, Joaquim Costa Correia, died on November 17, 1993. Their mother, Felisbina Ferreia Da Silva Correia, died on February 24, 2004.

5This matter arises from a “deal” that was struck between the plaintiff and the defendants, her sister, Teresa da Silva Pinto, and her sister’s husband, Eduardo, in 1996 whereby the plaintiff agreed to transfer her share in the Correia family estate to Teresa, in exchange for having property purchased for the plaintiff in Ontario by the defendants.

6The defendants did purchase a property at 42 Kitto Court, Brampton, Ontario. The transfer of the title of the property to the plaintiff was to take place upon receipt by Teresa of her and Maria’s share of the Correia family estate in Portugal.

7The property was never transferred to the plaintiff, although she did live there for a period of time and the defendants say they never received the plaintiff’s complete share of the Correia family estate.

8The plaintiff has had at least seven different counsel since 1998. In March 2000 the plaintiff’s then counsel, Helen Feldman, listed the matter for trial. The judge presiding over Trial Scheduling Court struck the matter from the list because the examinations for discovery had not been completed.

9The examination for discovery of the plaintiff then commenced on May 16, 2001, but was never completed.

10On July 26, 2002, Durval M. Martins, the plaintiff’s then counsel, brought a motion and was able to have the matter restored to the trial list.

11A pre-trial conference occurred on March 25, 2004. According to the parties, Justice O’Connor struck the matter from the trial list apparently as matters involving the Correia family estate were still outstanding in Portugal. Justice O’Connor did not make an endorsement in this regard and there was nothing compelling the plaintiff to wait for the Portugal litigation to be completed before proceeding with this case.

12The Portugal litigation involved and determined similar, if not the same, issues that are at the heart of this action. The three Portugal lawsuits (including one appeal) were completed by the fall of 2013. In November of 2016, Mr. Merwar served a Confirmation of Motion for an order restoring the matter to the trial list. The motion was scheduled for December 1, 2016, and was adjourned from time to time and eventually heard on October 10, 2017. Even if the plaintiff’s explanation that this matter could not be heard until the litigation in Portugal was concluded, there is no explanation for the three year delay in bringing this motion. (I add here that I do not necessarily accept that this matter could not have been listed for trial much earlier than the fall of 2013.)

THE LAW

13Nissar v. Toronto Transit Commission, 2013 ONCA 361 was an appeal of a motion judge’s order dismissing a motion to restore an action to the trial list. The motion judge found there was no explanation for why it had taken seven years to bring a motion to restore the action to the trial list. As well, the motion judge found actual prejudice to the defendant and thus held that it would be fundamentally unfair to the defendant to allow the action to proceed.

14The Court of Appeal confirmed the factors to be considered pursuant to rule 48.14(13) for determining whether an action should be restored to a trial list. At paragraphs 30 and 31:

[30] In my view, it is preferable to place the onus on a plaintiff to explain the delay and satisfy the court that it would not be unfairly prejudicial for the defendant to have the action restored to the trial list. This court has held that it is the plaintiff’s responsibility to move the action forward and prosecute the matter as diligently as possible: see Wellwood v. Ontario Provincial Police, 2010 ONCA 386, 102 O.R. (3d) 555, at para. 48.

[31] Therefore, the applicable test is conjunctive: a plaintiff bears the burden of demonstrating that there is an acceptable explanation for the delay in the litigation and that, if the action was allowed to proceed, the defendant would suffer no non-compensable prejudice.

15The defendants argue that restoring the matter to the trial list would be unfairly prejudicial to them. They cite the second branch of the Nissar test which requires consideration of the prejudice that would be imposed on the defendants if the action were restored, or whether a fair trial on the merits is still possible. The prejudice is to the defendants’ ability to defend the action as a result of the plaintiff’s delay, not just as a result of the passage of time.

16The issue of prejudice is a factual question, and the plaintiff has the onus of demonstrating that the defendants would suffer no non-compensable prejudice if the action were restored. A presumption of prejudice arises where a limitation period has expired during the period of delay and where there has been inordinate delay after the cause of action arose, as there is a presumption that memories fade over time. Accordingly, the onus on the plaintiff to rebut the presumption also becomes heavier with the passage of time. (See Woodheath Developments Ltd. v. Goldman, 2003 46735 (ON SCDC), [2003] OJ No 3440 (Div. Ct.), at paragraph 4 and Wellwood v. Ontario Provincial Police, 2010 ONCA 386, [2010] OJ No 2225, at paragraphs 60 and 67.

17The plaintiff has not discharged her onus in this regard.

18The defendants submit, and I accept, that there is actual prejudice arising from the delay in this case. In addition to memories fading over time, key witnesses are not available to testify at trial. Felisbina was still alive when the agreement was entered into between the plaintiff and Teresa. She would have had direct knowledge of the circumstances of the agreement but she is now deceased. The plaintiff’s boyfriend who was involved in the events surrounding this litigation is nowhere to be found. The examination for discovery of the plaintiff has never been completed.

19The defendant Eduardo is suffering from terminal cancer. It would be unfair to him to continue having this matter hanging over his head when he is in ill health and may well be near the end of his life.

20I find as well, that the delay in proceeding with this matter lies at the feet of the plaintiff and not the defendants.

21The plaintiff’s motion is dismissed.

22The defendants claim costs of the motion of $8,000. The defendants prepared a factum and a brief of authorities (the plaintiff did not), both of which were very helpful. Cross-examinations were held. Had the plaintiff been successful, she would have claimed costs of $11,500, leading me to conclude that she was aware of the costs consequences of proceeding with her motion. The defendants are therefore awarded costs of $8,000 all inclusive.

Van Melle, J.