Court File and Parties

CITATION: Elgner v. The Estate of Harvey Freedman, 2017 ONSC 6429

COURT FILE NO.: CV-12-451862

MOTION HEARD: 11042017

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Carol Elgner, Plaintiff/Moving Party

AND:

The Estate of Harvey Freedman and Alana Freedman, Defendants/Responding Party

BEFORE: Master P. T. Sugunasiri

COUNSEL: O’Sullivan, T., Counsel for the Plaintiff/Moving Party

Kestenberg, M., Counsel for the Defendant/Responding Party

HEARD: June 15, 2017

Endorsement

[1] The Plaintiff brings a motion to set a timetable for an action that had been dormant for over two years and/or to restore the action to the trial list in the event the action has been dismissed. The Defendants bring a cross motion seeking an order to dismiss the action pursuant to Rule 48.14(1) on the basis that the action has not been set down for trial within the five year time period provided under the Rules for Civil Procedure. For the reasons that follow, I allow the Plaintiff’s motion, dismiss the Defendants’ cross-motion, order that this action be reinstated as being “active”, and order the parties to file a consent timetable for the remaining steps. If no consent can be reached, the parties shall convene a case conference with me to resolve the timetable.

Overview

[2] As noted by the Defendants in their factum, this motion arises out an unusual administrative scenario in the context of a professional negligence action. The relevant procedural history of the action is as follows:

➢ April 23, 2012 the Plaintiff commences the action by Notice of Action issued on April 23, 2012.

➢ May 23, 2012 the Statement of Claim is issued;

➢ On June 21, 2012, the Defendants deliver a Request for Particulars and Request to Inspect Documents;

➢ June 27, 2012, counsel for the Plaintiff delivers a response to the Request for Particulars;

➢ July 4, 2012, the Plaintiff notes the Estate in default;

➢ July 5, 2012, the Defendants deliver a Notice of Motion for particulars;

➢ July 9, 2012, the Plaintiff files a requisition to note Alana in default;

➢ July 13, 2012-April 1, 2014, the parties were embroiled in motions, cross-examinations, and an appeal of issues arising from the motion for particulars and a motion to set aside the notings in default;

➢ October 9, 2014, Master Glustein (as he then was) orders, among other things, the noting in default to be set aside and a timetable for steps in the litigation extending to July 31, 2015 as a mediation deadline. Strangely, there is a consent attached to the Glustein order with more detailed dates and a set down date of October 8, 2015;

➢ December 1, 2014, the Registrar dismisses the action for delay despite the Glustein order;

➢ December 4, 2014, Plaintiff’s counsel writes to the Registrar and notes the error;

➢ December 19, 2014, Plaintiff’s counsel’s assistant advises counsel for the Defendants that Mr. Solomon (Plaintiff’s counsel) spoke with the motions supervisor and that the action will be reinstated;

➢ December 17, 2014 - February 6, 2015, counsel for the parties exchanged emails about productions but neither party served their affidavit of documents;

➢ January 30, 2015, productions were to be exchanged by order of Master Glustein;

➢ February 6, 2015 – February 7, 2017 – radio silence on the part of both parties despite the consent timetable of a set down date of October 8, 2015;

➢ February 7, 2017, Terry O’Sullivan served a Notice of Change of Solicitors on counsel for the Defendants;

➢ February 22, 2017, Defendants’ counsel responds indicating that the matter was administratively dismissed and there was no order restoring the action;

➢ March 14, 2017, Plaintiff’s counsel advises that the action was still “active” and asked to schedule the remaining steps and go to CPC court;

➢ March 15, 2017, Defendants’ counsel responds that CPC is not necessary to set a timetable;

➢ April 25, 2017, Plaintiff’s counsel proposes a timetable;

➢ April 27, 2017, Defendants’ counsel counters with a revised timetable and raises issue of Rule 48 dismissal given that it had been five years since the action had commenced and it had not been set down for trial; and

➢ May 4, 2017, counsel for the Defendants attends at the Superior Court of Justice office to inquire as to the status of the action and was advised that the action had never been reinstated from the dismissal that occurred in December of 2014 and marks the action as “inactive”.

[3] There is some element of a comedy or errors here and some missteps that have led to the current state of affairs. The action should never have been administratively dismissed in December of 2014. Further, when the error came to light, there should have been an order, reinstating the action. If this could not be made by the Registrar, the Plaintiff should have brought a motion before a Master to obtain such an order. We also have a Master’s order that does not align with the purported consent timetable of the parties, the Master’s signed order of course taking precedence. Either way, the parties ran afoul of the Glustein order as well as their own timetable when no productions were exchanged by January 30, 2015.

[4] The additional wrinkle is that as at the date of the motion, five years had passed since the Plaintiff commenced her action and Rule 48.14 mandates a dismissal for delay of the action by the Registrar. That dismissal order had not made as of the date of the motion but could have been. I suspect that the dismissal order was not made because the action had already been dismissed in December of 2014 and had never been reinstated. There was, in other words, no live action to dismiss.

[5] That then takes me to the relief sought by the parties in their respective motions. The Plaintiff seeks a timetable and to set aside the dismissal, if necessary, and the Defendants seeks a dismissal pursuant to Rule 48.14. Given the foregoing sequence of events, it is clear that what the Plaintiff needs to continue her action is an order reinstating the action. What the Defendant needs is to seek continued dismissal, now on the basis that five years have passed with the action still not having been set down for trial.

[6] In the normal course, a motion to keep and action alive in the face of Rule 48.14(6) is to be convened as a status hearing in which the Plaintiff must show cause as to why the action should continue (Rule 48.14(7)). In doing so, the Plaintiff must show that there was an acceptable explanation for the delay and establish that, if the action were allowed to proceed, the defendant would suffer no non-compensable prejudice. [^1] Other guiding principles from Cedrom-Sni in applying this test are that:

a. The test of conjunctive, and not disjunctive;

b. the responsibility of moving the action along lies with the Plaintiff although litigation in its current form does not allow a defendant to lie in the weeds;

c. The possible dismissal for delay involves a careful balancing between the interests of the parties and society in achieving timely and efficient justice, and the resolution of disputes on their merits;

d. The prejudice at issue relates to the defendant’s ability to defend the action as a result of the plaintiff’s delay, not as a result of the sheer passage of time; and

e. The defendant’s lack of display of any sense of urgency undercuts any claim of actual prejudice.

[7] Presumably due to the unusual circumstances of this case, the Plaintiff’s evidence did not particularly address this test that at the very least, would be a test to address in response to the Defendants’ cross-motion. However, the summary of events in both the Plaintiff’s and Defendants’ records demonstrate that there are two years of unexplained delay in setting this action down. For the remaining years, the parties were in active litigation, even if the Defendants characterize those steps as frivolous. Any such characterization has been addressed by the various costs awards and has no bearing on my decision here.

[8] The two years is not explained and I can make no other finding. The question is whether or not this gap is fatal to the continuation of the Plaintiff’s action since the test under Rule 48.14(7) is conjunctive. Technically, I need not even consider prejudice as I can refuse to reinstate this action on this basis alone. However, I do note that there does not appear to be any particular prejudice to the Defendants in their ability to defend the action other than that memories inevitably fade over time. This was conceded counsel for the Defendants at the hearing. I do not overly minimize this prejudice given that some of the events giving rise to the claim allegedly took place as early as 1993. However, I take comfort in the fact that until very recently, the Defendants did not demonstrate any sense of urgency in moving the case along (they too were silent and afoul of a Court order between 2015 and 2017) and also had discussions with Plaintiff’s new counsel about timelines for next steps. There was, in other words, a willingness to proceed and no mention of the delay issue (until April after counter-proposing a timetable) or any related prejudice to the Defendants.

[9] It is for this reason, and the unusual circumstances of this case that I find it is in the interests of justice to allow the Plaintiff to proceed with this action and deny the Defendants’ cross-motion. I am satisfied that new counsel has been diligent in moving this action along and that the balancing of the parties’ interests favours having this case decided on its merits.

[10] I order as follows:

a. The order dismissing the action made December 1, 2014 is hereby set aside and the action is reinstated;

b. The Registrar shall note the action as now being “active”;

c. The parties shall file a consent timetable for next steps including a set down date, failing which they may convene a case conference with me through my assistant Trial Coordinator, Ms. Soutar to establish a timetable; and

d. Costs follow the event. If the parties cannot agree on quantum, they may submit their costs outline to Ms. Soutar at the counter or electronically, accompanied by no more than 2 pages, double-spaced, of submissions, within 14 days of the date of this Endorsement.

[11] I thank counsel for their helpful materials, their excellent submissions, and for being shining examples of civility and professionalism, especially to our less experienced members of the bar who were present in Court that day.

“Master P. T. Sugunasiri”

Date: September 29, 2017

[^1]: Cedrom-Sni Inc. v Meltwater Holding, 2017 ONSC 3387 at para. 6 (“Cedrom”).