Citation: Aguas v. The Estate of Curtis Rivard, deceased, Premier Express Lines and Associates Leasing, 2017 ONSC 6467
COURT FILE NO.: CV-03-10022-00 and CV-07-0970
DATE: 20171027
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: LUISA AGUAS Plaintiff
v.
THE ESTATE OF CURTIS RIVARD, deceased, PREMIER EXPRESS LINES and ASSOCIATES LEASING Defendants
AND:
LUISA AGUAS Plaintiff
v.
STEPHANIE L. TANNER, TORI REDGATE ESTATE TRUSTEE OF THE ESTATE OF DAVID G. SCHERER, DECEASED, SCHERER LEASING INC. AND LAJOS GUTH Defendants
BEFORE: DALEY, RSJ.
COUNSEL: John Bruggeman, for the Plaintiff Alan L. Rachlin for the Defendants the Estate of Curtis Rivard, deceased, and Premier Express Lines Blair Nitchke, for the Defendant Associates Leasing and for Defendants Tori Redgate Trustee of the Estate of David G. Scherer, deceased, and Scherer Leasing Inc.
E N D O R S E M E N T
Overview:
[1] At the start of the trial in June 2016, both of the actions relating to this motion were dismissed by the trial judge. The dismissal of the actions occurred for several reasons, including the plaintiff’s failure to comply with the trial management orders. The trial had been scheduled peremptory to the plaintiff.
[2] On appeal to the Ontario Court of Appeal, the Court concluded that the appeals in respect to both actions would be allowed, and that the matters would be referred back to this court “for reconsideration of whether the matters should proceed or not on a more fulsome record, which minimally should include a full history as well as some detail, on the available medical evidence addressing the merits of the appellant's claims and particularly so in circumstances where appellant's counsel has confirmed that he will be representing the appellant should the matters proceed to trial”: Aguas v. Rivard Estate, 2017 ONCA 314 at para. 5.
[3] The motion contemplated by the Court of Appeal is not provided for under the Rules of Civil Procedure, R.R.O 1990, Reg. 194, and counsel advised that there is no case law that directly considers this motion.
[4] This motion calls for the weighing of factors related to access to justice, trial fairness, and the finality of legal proceedings within a reasonable time.
[5] For the reasons that follow, the plaintiff’s motion to restore these actions to the trial list is dismissed, as are both actions.
Background:
[6] The history of these two actions is lengthy and protracted. Given the unique circumstances under which these actions were referred back to the Superior Court of Justice for reconsideration, a full and detailed review of the chronology of events in this litigation is necessary.
[7] These actions arise from two motor vehicle accidents that occurred on October 5, 2001 and March 27, 2005, respectively. The plaintiff was involved in both accidents.
[8] Following the commencement of these actions, an order was made by Ricchetti J. on April 10, 2012 that the actions would be tried together or one after the other, as the trial judge were to direct. Thus, both of the actions are considered on this motion, and much of the history of these proceedings and the evidentiary record is common to both.
Aguas v. Rivard et. al. (“First Action”):
[9] The First Action arises from a motor vehicle accident that occurred on October 5, 2001. The plaintiff seeks damages for personal injuries allegedly sustained by her in that accident.
[10] The evidentiary record available indicates that this accident occurred in the westbound collector lanes of Highway 401, just west of the Martin Grove on-ramp. The plaintiff was operating her own motor vehicle as she entered onto the highway from the Martin Grove on-ramp. The plaintiff came into a sideswipe collision with a transport truck driven by Rivard. Rivard passed away after this accident for unrelated reasons, and as such the action is now brought against his estate.
[11] It is asserted by the plaintiff that Rivard’s truck pulled into her lane. The motor vehicle accident report prepared by the attending police officers, however, states that the plaintiff lost control of her vehicle and struck the defendant’s truck.
[12] A witness to this accident, Tom Vella, provided a statement as to his observations where he indicated that “I saw….the car going right into the side of the truck…” and that the truck “was just travelling in his lane.”
[13] In a further statement given to the police, this witness stated “I’m 100% sure the truck didn’t move from his lane. I was behind for quite a while. The truck was driving fine. We weren’t speeding. The car crossed into [sic] the truck. I think the lady panicked due to all the barriers in the construction zone which made her run out of room.”
[14] Records obtained from the Ministry of Transportation confirmed that in October 2001, there was ongoing construction in the vicinity of the Martin Grove on-ramp to Highway 401.
[15] The defendant driver, Rivard, also provided a statement to the police, in which he stated that he did not change lanes but rather the plaintiff’s vehicle drove into the right-hand side of his trailer.
Aguas v. Tanner et al. (“Second Action”):
[16] The Second Action arises from a motor vehicle accident which occurred on March 27, 2005, at which time the plaintiff was a passenger in a vehicle travelling westbound on Highway 401. Another vehicle, also travelling westbound in the same lane, lost control, striking another vehicle. That vehicle in turn struck the vehicle in which the plaintiff was a passenger. The defendants in the Second Action have admitted liability. The remaining issues to be determined are whether or not the plaintiff’s claims met the threshold requirements under the Insurance Act, R.S.O. 1990, c. I.8, and the quantification of the plaintiff’s damages.
Procedural History of Both Actions:
[17] The following are the significant dates in the chronology of events in both actions:
• October 6, 2003: First Action commenced;
• August 26, 2005: Plaintiff was examined for discovery with regard to liability in the First Action. Examinations with respect to her damages did not proceed as she stated she was unwell;
• March 8, 2006: Plaintiff did not attend for her continued examination for discovery;
• May 4, 2006: Plaintiff changed lawyers;
• May 5, 2006: Plaintiff’s new lawyer refused to proceed with continued examination for discovery of the plaintiff, and the Plaintiff failed to attend at that examination;
• March 26, 2007: Plaintiff issues Statement of Claim with respect to Second Action (the 2005 motor vehicle accident);
• August 15, 2007: Plaintiff’s counsel cancelled plaintiff’s continued examination for discovery scheduled for August 27, 2007;
• August 15, 2007: First Action is administratively dismissed for delay;
• June 28, 2008: Plaintiff’s examination for discovery continued but not completed;
• April 14, 2009: Plaintiff’s examination for discovery continued but was not completed as plaintiff arrived at examination 2 hours late;
• October 5, 2009: Plaintiff’s examination for discovery continued;
• October 16, 2009: Original return date for the plaintiff’s motion to set aside the administrative dismissal of the First Action, which was then adjourned;
• July 5, 2010: Plaintiff’s motion to set aside the administrative dismissal was dismissed by Seppi J.;
• February 4, 2011: Plaintiff appealed the decision of Seppi J. to the Ontario Court Of Appeal. The decision was reversed and the First Action was reinstated;
• April 10, 2012: Ricchetti J. ordered both actions to be tried together or one after the other;
• May 1, 2012: Plaintiff’s examination for discovery continues;
• October 17, 2012: Both actions are set down for trial;
• April 3, 2014: Pretrial conference held for both actions and cases put to the sittings commencing May, 2015 for trial;
• May 1, 2015: The trial of both actions was adjourned to the January, 2016 sittings, on consent, at the request of counsel for the defendants as a result of other trial commitments;
• November 20, 2015: Plaintiff’s counsel obtain an order removing them as counsel of record in both actions;
• December 15, 2015: Plaintiff serves Notices of Intention to Act in Person in both actions;
• January 4, 2016: Plaintiff advises that she intended on retaining counsel, at which time counsel for the defendants consented to an adjournment of the trial on the basis that the trial would be adjourned to the sittings to commence May, 2016, with the adjournment peremptory to the plaintiff;
• February 22, 2016: As required, the plaintiff and counsel attended the To Be Spoken to Court to confirm status of action. At that time, the plaintiff advised Baltman J. that she had not yet retained counsel and that she intended to proceed to trial as a self-represented plaintiff if she was not able to retain counsel. Baltman J. provided to the plaintiff the Ontario Superior Court of Justice Memorandum for Trial for Self Represented Litigants. Baltman J. ordered that both actions proceed to trial at the May 2016 sittings, with an indication on the record that the “plaintiff likely to be a self-represented litigant;”
• April 25, 2016: Plaintiff advises counsel for the defendants that she intended to seek an adjournment of the trial;
• May 12, 2016: Counsel, presently representing the plaintiff, brought a motion to adjourn the trial, on the basis that he was solely retained for the adjournment motion. This motion came before Ricchetti J. The plaintiff’s counsel on this motion would not undertake that he would remain on the record and represent the plaintiff for the purpose of the trial, if an adjournment were granted. The motion for the adjournment was dismissed by Ricchetti J. for various reasons, including:
(1) The subject of the actions, the accidents, were 15 and 11 years old respectively at the time of the motion, and there was a presumption of prejudice particularly as liability was contested with respect to the first accident;
(2) The plaintiff had already been granted one adjournment to the May 2016 trial date on a peremptory basis, and subsequent to that she confirmed she was prepared to proceed to trial as a self-represented plaintiff;
(3) In a supplementary endorsement relating to the plaintiff’s motion, Ricchetti J. noted that the plaintiff offered no evidence of written requests to her former counsel for the production of her files for approximately 5 months following the counsel being removed from the record in November 2015;
(4) There had been a two-year delay in the plaintiff moving to set aside the administrative dismissal of the First Action;
(5) If an adjournment were granted, the delay would not be short and could amount to 2 years; and
(6) There was no guarantee that if an adjournment were granted, the plaintiff would be represented by counsel at the next trial date.
• May 17, 2016: Both actions came before Donohue J. for the purpose of a jury selection, and the actions were placed on standby to proceed to trial when called. Donohue J. made trial management orders as follows:
(1) The plaintiff was to provide a summary of the anticipated evidence of her brother within 7 days or by the opening of trial, whichever occurred first;
(2) The plaintiff was to provide a summary of the opinions of her physicians, Dr. Dubins, Dr. Nigel Clements, and Dr. Gary Lee, and the basis upon which they reached their opinions within 7 days or by the opening of trial, whichever occurred first;
(3) The plaintiff was ordered to arrange for summonses to be served upon witnesses to be called; and
(4) If the plaintiff intended on introducing evidence from her brother via videoconference, Donohue J. ordered that she should bring a motion as soon as possible seeking an order to that effect.
• May 24, 2016: The plaintiff brought an emergency motion seeking adjournment of the trial on the basis that her brother, who resided in Ecuador, had allegedly been involved in a motor vehicle accident and had been hospitalized. An adjournment was granted with the trial set to proceed on June 1, 2016, in order to allow the plaintiff to travel to Ecuador to arrange for her brother’s care.
• May 31, 2016: Counsel for the defendants wrote to the plaintiff providing to her a copy of Donohue J’s endorsement of May 17, 2016, along with a copy of the Ontario Superior Court of Justice Memorandum for Self-Represented Litigants which had previously been provided to the plaintiff by Baltman J. Counsel advised the plaintiff that she was in default of the trial management orders of Donohue J., and that she was to provide the summaries, as ordered upon attendance at trial on June 1, 2016;
• June 1, 2016: Both actions were called to proceed to trial before Edwards J., and as of that date, the plaintiff had not complied with any of the orders of Donohue J. Notably, to this date, she has not complied with the terms of those orders.
[18] Edwards J. dismissed the plaintiff’s actions and noted the following in reaching his decision:
The plaintiff advised that her sole witness for the trial would be herself;
The plaintiff advised that she would not be producing any witnesses to testify at the trial;
The plaintiff had not served any expert reports, notwithstanding the lengthy nature of the litigation;
The plaintiff had failed to satisfy the orders of Donohue J. of May 17, 2016, and that had placed the defendants in an unfair position; and
The actions related to motor vehicle accidents that occurred in 2001 and 2005.
[19] In concluding his decision, Edwards J. stated:
Ms. Aguas states that she does not understand Canadian Law and procedures. It is important to provide latitude to self-represented individuals but that phrase should not create a situation that is unfair to the other party or parties. These matters relate to motor vehicle accidents, one of which occurred in 2001 and the other occurred in 2005. The defendants are entitled to finality. I therefore grant the defendants’ motion and dismiss both actions against the defendants.
The Law:
[20] As noted at the outset of these reasons, there is no rule directly applicable to the motion brought, nor any jurisprudence where this type of motion has been considered.
[21] It was urged, on behalf of the moving plaintiff, that this court’s jurisdiction to consider this motion to grant the relief requested is found in Rule 2.01 (1) (a) of the Rules of Civil Procedure, which reads:
EFFECT OF NON-COMPLIANCE
2.01 (1) A failure to comply with these rules is an irregularity and does not render a proceeding or a step, document or order in a proceeding a nullity, and the court,
(a) may grant all necessary amendments or other relief, on such terms as are just, to secure the just determination of the real matters in dispute
[22] Rule 2.01 (1) (a) may be engaged in circumstances where a party fails to comply with one of the rules. However, in my view, this rule is not engaged in circumstances where a party fails to comply with orders of the court.
[23] Counsel for the defendants argued that by analogy, Rule 48.11 may be of assistance to the court in terms of considering the parties’ respective rights in circumstances such as this. The Court of Appeal, in its decision relating to these actions, has directed that this court reconsider the actions on a more fulsome record, and concluded that it is for the plaintiff, in bringing her motion, “to demonstrate to the court why these matters should proceed”: Aguas v. Rivard at paras. 5 and 6.
[24] Having considered the jurisdiction of this court to consider this motion, I agree that Rule 48.11 and the jurisprudence under that rule, by analogy, have the most immediate connection with the circumstances of this case.
[25] Rule 48.11 applies to situations where an action is struck off a trial list and an order is sought to have the action restored to a trial list. Rule 48.11 reads:
48.11 Where an action is struck off a trial list, it shall not thereafter be placed on any trial list except,
(a) in the case of an action struck off the list by a judge, with leave of a judge; or
(b) in any other case, with leave of the court. O. Reg. 55/08, s. 4.
[26] As the order of Edwards J of June 1, 2016 dismissing both actions, has been set aside by the Court Of Appeal, the plaintiff on this motion requests leave to return these actions to the trial list. In my view, her motion engages the considerations in Rule 48.11 and the cases that consider this rule.
[27] It has been held that “the party who commences a proceeding bears the primary responsibility for its progress. For this reason, the initiating litigant generally suffers the consequences of a dilatory regard for the pace of the litigation”: Wellwood v. Ontario Provincial Police, 2010 ONCA 386, 102 O.R. (3d) 555 at paragraph 48.
[28] Tulloch J.A. in Nissar v. Toronto Transit Commission, 2013 ONCA 361, 115 O.R. (3d) 713, articulated the test to be applied in considering a request to restore an action to the trial list pursuant to Rule 48.11 in paras. 29 – 31:
[29] However, for the sake of consistency and for the reasons I gave in Faris, I would instead adapt those factors informing the rule 48.14(13) test recently confirmed by this court in 1196158 Ontario Inc. v. 6274013 Canada Ltd., 2012 ONCA 544, 112 O.R. (3d) 67 (Ont. C.A.) to determine when an action should be restored to the trial list.
[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 (Ont. C.A.), 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.
[29] Thus, a plaintiff seeking to have an action restored to the trial list bears the burden of demonstrating an acceptable explanation for the delay in the litigation and that if the action were allowed to proceed, the defendant would suffer no non-compensable prejudice.
[30] I have further concluded that as the determination of whether or not the plaintiff’s cases should be restored to the active trial list will ultimately determine whether or not the actions would proceed to a full adjudication on the merits, the considerations examined in the English case of Allen v. Sir Alfred McAlpine & Sons Ltd., [1968] 2 Q.B. 229 (C.A.) should also be examined. This case demonstrates the court’s reluctance to dismiss an action without a hearing on the merits. Under the restrictive approach used in the Allen decision, for an action to be dismissed for delay, the plaintiff’s delay must: (a) be shown to have been intentional and contumelious; or (b) inexcusable and prejudicial to the defendant’s right to have a fair trial of the action. For the delay to be intentional and contumelious, the plaintiff must have deliberately contravened a peremptory order of the court: John Morden & and Paul Perell, The Law of Civil Procedure in Ontario, 1st ed. (Markham: Lexis Nexis, 2010) at p. 20.
[31] As to how delay is to be measured, Doherty J.A. addressed this in Langenecker v. Sauve, 2011 ONCA 803, where the defendants moved to have an action dismissed for delay. Although the motion was brought under Rule 24.01, the court’s discussion as to delay is, in my view, equally applicable to the present circumstances: see also Langenecker at paras. 3 to 6.
[32] Doherty J.A. stated as follows at para. 8 of Langenecker:
[8] The inordinance of the delay is measured simply by reference to the length of time from the commencement of the proceeding to the motion to dismiss. Most litigation does not move at a quick pace. Some litigation, because of the issues raised and/or the parties involved, will move even more slowly than the average case. It is fair to say that many medical malpractice actions are among those cases that move slowly. However, even accepting that litigation customarily moves at a somewhat stately pace and that this kind of litigation can move even more slowly than most, there can be no doubt that 15 years from the commencement of the action to the motion to dismiss constitutes inordinate delay.
[33] Delay that is in part occasioned by counsel is nevertheless the responsibility of the party represented: Morrell v. Boulton, [2006] O.J. No. 1493 at para. 34.
[34] Lengthy delay in itself may generate a presumption or strong inference of prejudice to the defendant’s ability to properly defend the plaintiff’s action: see Langeneker at para. 23.
[35] It has been held that where 11 years and 13 years have elapsed since an action was commenced, there is presumed prejudice or a strong inference of prejudice: see Berg v. Robbins, [2009] O.J. No. 6169 (Div. Ct.) at para. 14; LeBlanc v. MacMillan, 2015 ONSC 1477 at para. 25.
Analysis:
[36] In reconsidering this matter as directed by the Court of Appeal, the scope of the reconsideration, as per the court’s endorsement, calls for the review of whether the two actions “should proceed or not on a more fulsome record, which minimally should include a full history as well as some detail, on the available medical evidence addressing the merits of the appellant’s claims and in particular so in circumstances where appellant’s counsel has confirmed that he will be representing the appellant should the matters proceed to trial”: Aguas v. Rivard Estate at para. 5.
a) Fulsomeness of the evidentiary record
[37] In terms of the fulsomeness of the evidentiary record adduced on this motion, other than a few documents that postdate the dismissal of both of these actions, no meaningful evidence whatsoever has been adduced by the plaintiff in these actions following the order of the Court of Appeal.
b) Trial management orders of Donohue J.
[38] As discussed earlier, on May 17, 2016, Donohue J. made a number of trial management orders requiring the plaintiff, amongst other things, to provide summaries of the anticipated evidence of her brother and her physicians within 7 days of the order or at the opening of trial, whichever occurred first.
[39] The plaintiff still remains in breach of every aspect of the trial management order of Donohue J., in spite of the fact that several months have passed since that order was made. No explanation has been offered by the plaintiff as to why the terms of that order have not been complied with. Absent any explanation from the plaintiff explaining the reason for the continuing breach of this order, I find that the breach is intentional and constitutes a deliberate contravention of the order: see Allen.
[40] The breach of the terms of that order, in my view, represents the plaintiff’s serious disregard for the orders of this court, particularly so given the significant passage of time from the date of that order to the date of the return of this motion.
[41] The terms of that order, which required disclosure of specific information to the defendants, inherently relate to trial fairness particularly when one takes into account the age of these actions. The nondisclosure of the information ordered gives rise to a very significant disadvantage and prejudice to the defendants, as will be discussed further.
[42] In my view, the plaintiff’s blatant and unexplained disregard for the order of this court, standing alone, would form a proper basis for dismissing the present motion and dismissing both actions. It is important to note that the plaintiff, at the time of the filing of the appeal and upon the filing of the present motion, has been represented by counsel, who I must reasonably assume has advised the plaintiff that she must comply with the trial management order of Donohue J. In spite of that, the plaintiff remains in breach of that order.
[43] In addition to the plaintiff’s breaches of the trial management order of Donohue J., the plaintiff was also in breach of the order of January 4, 2016, where the trial of these actions was made peremptory to the plaintiff for the May 2016 sittings.
c) Failure to provide new medical evidence
[44] My decision on this motion does not rest entirely on the plaintiff’s continuing breach of the court’s order, as there are several other compelling reasons for coming to the conclusion I have.
[45] Following the order of the Court of Appeal directing the reconsideration of these actions, the plaintiff has produced no new medical documentation, whether in the form of clinical notes and records, consultation reports, or expert reports prepared pursuant to Rule 53.03 of the Rules of Civil Procedure. The only documentation, in the nature of a medical record, is a Shoppers Drug Mart patient medical history of prescription medications, which include several prescriptions dispensed to the plaintiff following the hearing of this matter before the Court of Appeal.
[46] Thus, there is no additional medical evidence beyond that which was before the Court of Appeal.
d) Unexplained delay
[47] In the plaintiff’s motion material, there is no cogent or detailed explanation whatsoever explaining the extraordinary delay in her prosecution of both of these actions.
[48] The period of delay to be considered is measured from the inception of each action forward. While the administrative dismissal of the First Action was ultimately set aside by the Court Of Appeal, the clock, having regard to overall delay, continued ticking through to the time this case was called for trial in 2016.
[49] The plaintiff has outlined her efforts to retain new counsel after November 2015. In her evidence, she indicated that she had never received a full copy of her file, which was held by her former lawyers. However, in correspondence from a lawyer she consulted after November 2015, namely Justin Linden, he states in correspondence to the plaintiff, “please be advised I have now reviewed your files”. This certainly raises significant doubt in my mind as to the veracity of the plaintiff’s position that she did not have access to her personal injury files as early as November 2015.
[50] Further, the plaintiff claims in her affidavit that no lawyers wished to represent her at the trial scheduled for May 2016 because her file was not ready for trial. However, the record contains evidence about a lawyer who indicated he would decline to represent the plaintiff based on the adverse evidence on liability with respect to the events in the first motor vehicle accident.
[51] The record also contains evidence of the fact that counsel for the defendants offered assistance to the plaintiff in reconstructing her file materials that may not have been in her hands by providing to her copies of all of the affidavits of documents and the documents listed therein, in exchange for the plaintiff agreeing to pay for the photocopying charges. The plaintiff did not accept this offer from the defendants counsel.
e) Likelihood of success in the First Action
[52] As to the question of defendants’ liability for the first accident which occurred in 2001, on the record adduced by both counsel, I am of the view that the plaintiff would have an extremely difficult case to make against the defendant driver.
[53] Again, as noted several times in these reasons, the plaintiff has yet to produce a will-say statement as to what her brother will testify to at trial regarding the circumstances of the first accident. The evidence now available with respect to the events of the accident is quite compelling in demonstrating that the plaintiff will likely be found fully at fault for the accident and any injuries she has sustained.
[54] The evidence of the independent witness, Tom Vella, which was obtained many years ago, to this date remains unchallenged other than by the plaintiff’s own evidence. Further, the statement obtained from the defendant driver by the police demonstrates that the plaintiff was fully at fault for the October 5, 2001 accident. It is notable that counsel for the plaintiff, in submitting the material filed for this motion, did not include in the plaintiff’s affidavit a copy of the motor vehicle accident report prepared by the investigating police officers.
[55] The plaintiff has indicated that she will require an accident reconstruction report in order to demonstrate the evidence on liability with respect to the October 2001 accident. Given the passage of time and the present evidence that there were no skid marks, accident scene photographs, or physical evidence available as to the relative position of the vehicles or their paths of travel, I have concluded that there is no available evidentiary foundation upon which an accident reconstruction engineer could provide an opinion.
f) Likelihood of obtaining damages in the Second Action
[56] As to the liability position in regard to the second accident, as noted, the defendant has admitted liability for the accident itself but disputes the plaintiff’s claim for damages on several grounds.
[57] Given the apparent overlapping nature of the injury allegations made by the plaintiff as between the first and second accident, of necessity, these actions were ordered to be tried together in order to allow for a global assessment of damages which would be required in order to determine the respective degrees of responsibility as between the tortfeasors in the first and second accident.
[58] As to the damages sustained by the plaintiff in the first motor vehicle accident in 2001, the defendants in that accident engaged the services of Dr. J Finkelstein, an orthopedic surgeon, to conduct an independent medical evaluation of the plaintiff.
[59] In his report dated October 2, 2012, Dr. Finkelstein found that the plaintiff had no ongoing impairments from either motor vehicle accident that affected her ability to function, and that she had no impairment in her ability to return to any type of work that she had done prior to the accident.
[60] The plaintiff was also assessed by a psychiatrist at the defendants request, namely Dr. S. Bruun-Meyer, and in his report of October 3, 2012, he notes that he found that the plaintiff “had no mental or psychiatric condition as a result of the 2001 accident or otherwise currently.”
[61] The only clinical medical evidence adduced by the plaintiff on this motion that postdates these two defense expert reports is contained in a clinical note of Dr. H. Amani, a treating physician, dated September 9, 2015. In his notes, he offered the following as his Diagnosis/Impressions:
(1) left SI Joint Strain/Synovitis with no evidence of sacroilitis on MRI;
(2) left hip greater trochanter bursitis and gluteus medius bursitis;
(3) left hip partial labral tear on MRI – patient saw Dr. Abouali and no surgery was recommended;
(4) lumbosacral sprain and DJD and disc bulges at L4 – 5 and L5 – S1 on lumbar MRI done in April 2014 – neurologically stable and no surgery needed for lumbar spine.
[62] The plaintiff has adduced no evidence whatsoever as to her present condition and disabilities, if any, and again the medical will-say statements from her family doctor and treating experts have not been introduced on this motion, as one would have expected given the order of Donohue J.
g) Application of legal principles to the facts
[63] Returning to the considerations discussed by Tulloch J.A. in Nissar and the first branch of the conjunctive test in that decision, namely whether the plaintiff has satisfied the burden of demonstrating that there is an acceptable explanation for the delay in the litigation, I have concluded that the plaintiff has failed to do so.
[64] The only evidence offered by the plaintiff as to the lengthy and drawn out history of both of these actions relates to the timeframe essentially following her lawyers being removed from the record in November 2015 up to the trial scheduled for May 2016. No evidence has been offered by the plaintiff to explain the lengthy historical delays in both actions prior to that time.
[65] Turning to the second branch of the test in Nissar, which requires the plaintiff to demonstrate that if the action was allowed to proceed, the defendant would suffer no non-compensable prejudice, I have concluded that the plaintiff has also failed to establish that, and that the burden rested entirely with her to do so.
[66] As to the evidence of actual prejudice in the First Action, the defendant Rivard passed away in early 2003 and as such, the plaintiff wishes to pursue this action against his estate 15 years after the accident event and 13 years after his death.
[67] The independent witness, Tom Vella, is presently 60 years of age, and with the passage of more than 15 years, his recollection of the pertinent accident related events will have diminished.
[68] The delay and prejudice in this case appear to have arisen from a combination of the plaintiff’s conduct and that of her former lawyers.
[69] In spite of the relief granted by the Court of Appeal in setting aside the administrative dismissal of the First Action in 2011, the plaintiff has taken no steps whatsoever to prosecute either action at any reasonable pace. There is evidence that she failed to attend at discoveries and that no Rule 53 compliant expert reports have been served. In accordance with the Court of Appeal’s statements in Lagenecker, I have concluded that the lengthy delay in respect of both of these actions in and of itself has generated a presumption or at least a strong inference of prejudice to both defendants’ ability to fully present their defences to the plaintiff’s claim in the respective actions.
[70] The plaintiff has offered no evidence whatsoever to discharge the burden upon her to demonstrate that the defendants would suffer no non-compensable prejudice.
[71] Given the extraordinary length of time during which these actions have remained outstanding, the plaintiff’s failure to pursue these actions, after being given a second chance to do so by the Court of Appeal in 2011, and the plaintiff’s intentional and continuing breach of the terms of the order of Donohue J., I can only conclude that there is a real and substantial risk to the defendants that there could never be a fair trial of these actions.
[72] In its endorsement directing the reconsideration of these actions by this court, the Court of Appeal directed that these actions be reconsidered having regard to “fairness to both sides”. Included in that evaluation would be considerations with respect to reasonable access to justice.
[73] In my view, this plaintiff has had more than reasonable access to justice over the history of both of these actions. Concern was raised with respect to the plaintiff’s abilities in the English language. On attending in court before me, she did not demonstrate any limitations whatsoever in communicating in English. No interpreter was requested nor was one brought by the plaintiff to court on her attendance before me.
[74] Access to justice should not simply be examined through a lens from this plaintiff’s perspective alone. It can be considered from a broader perspective having regard to access to justice by the whole community.
[75] These actions have been ongoing in the Superior Court of Justice in Brampton for over 15 years. They have taken up extraordinary judicial resources and have occupied places on the Brampton civil trial lists over several years. Thus, they have taken space on those trial lists that could have otherwise been used by other cases that were trial-ready, and could have proceeded to trial in the place of these actions.
[76] Further, given the protracted history, combined with the plaintiff’s conduct in ignoring court orders, and in particular failing to produce evidence in accordance with the order of Donohue J., I have concluded that fairness in these circumstances calls for the dismissal of the plaintiff’s motion to restore these actions to the trial list, as well as the dismissal of each action.
[77] As to the issue of costs of this motion and of the actions, counsel shall file submissions of no longer than 5 pages, along with a Bill of Costs, within 20 days of the release of these reasons. No reply submissions shall be filed without leave.
Daley, RSJ.
DATE: October 27, 2017
CITATION: Aguas v. The Estate of Curtis Rivard, deceased, Premier Express Lines and Associates Leasing, 2017 ONSC 6467
COURT FILE NO.: CV-03-10022-00 and CV-07-0970
DATE: 20171027
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: LUISA AGUAS Plaintiff
v.
THE ESTATE OF CURTIS RIVARD, deceased, PREMIER EXPRESS LINES and ASSOCIATES LEASING Defendants
AND:
LUISA AGUAS Plaintiff
v.
STEPHANIE L. TANNER, TORI REDGATE ESTATE TRUSTEE OF THE ESTATE OF DAVID G. SCHERER, DECEASED, SCHERER LEASING INC. AND LAJOS GUTH Defendants
BEFORE: Daley, RSJ.
COUNSEL: John Bruggeman, for the Plaintiff Alan L. Rachlin and Jeffrey A. Small, for the Defendants the Estate of Curtis Rivard, deceased, and Premier Express Lines Blair Nitchke, for the Defendant Associates Leasing and for Defendants Tori Redgate Trustee of the Estate of David G. Scherer, deceased, and Scherer Leasing Inc.
ENDORSEMENT
Daley, RSJ.
DATE: October 27, 2017