Kissoon v. Kissoon, 2017 ONSC 7025

CITATION: Kissoon v. Kissoon, 2017 ONSC 7025

COURT FILE NO.: CV-12-2017-SR

DATE: 2017 11 28

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Priyadarshini Kissoon Plaintiff

-and-

Deoraj Kissoon, Masood Ahmed, Paltu Sikder and Sikder Professional Corporation Defendants

BEFORE: Bloom, J.

COUNSEL: William G. Scott, counsel for the Plaintiff, Moving Party Michael Finley, counsel for the Defendant, Masood Ahmed, Responding Party Sydney Hodge, counsel for the Defendants, Paltu Sikder and Sikder Professional Corporation, Responding Parties

HEARD: 2017/11/20

E N D O R S E M E N T

I. INTRODUCTION

1The Plaintiff moves under Rule 48.14(5),(6), and (7) for an order to set a timetable for the completion of the remaining steps necessary to have the action set down for trial. The Responding Parties seek an order dismissing the action for delay.

II. PROCEDURAL BACKGROUND AND FACTS

2In 2000 the Plaintiff, and her husband, the Defendant, Deoraj Kissoon (who has been noted in default), purchased a property located on Longmoor Road in Mississauga, Ontario as joint tenants. In approximately 2008 they separated. On May 19, 2010 title to the property was transferred solely to the Defendant Kissoon.

3Subsequently, the property was refinanced. The Defendant Sikder, a lawyer, represented the Defendant Kissoon on the transactions. The Defendant, Ahmed, also a lawyer, provided independent legal advice to the Plaintiff.

4On May 10, 2012 the Plaintiff issued a notice of action, commencing this proceeding. She seeks damages for the reduction in her equity in the property by virtue of the transactions.

5A Statement of Claim was issued on May 15, 2012. It, along with the notice of action, were served upon the Responding Parties on May 29, 2012. The Defendant Ahmed filed a Notice of Intent to Defend on July 18, 2012, but has not filed a Statement of Defense. On or about September 17, 2012 the Defendants Sikder and Sikder Professional Corporation filed a Statement of Defense.

6There followed various motions and steps relative to the sale of the property.

7Of note is that in January of 2013 the Moving Party and Responding Parties agreed to the issuance of a new Fresh as Amended Statement of Claim. On December 12, 2013 the lawyer for the Plaintiff (who is not her counsel on this motion) inquired by e-mail of his process servers on the status of issuance of this Fresh as Amended Statement of Claim. He received no response to that e-mail. Further, that pleading was not issued or served.

8On December 28, 2014 the lawyer for the Plaintiff wrote the Responding Parties inquiring whether they were prepared to settle the action or engage in mediation. Alternatively, he stated that he would proceed with the action. No reply to this letter was received.

9On May 8, 2017 the lawyer for the Plaintiff served a Notice of Motion requesting a Status Hearing; this motion is the one before me.

III. GOVERNING PRINCIPLES

10Rule 48.14(5), (6), and (7) provide as follows:

5. If the parties do not consent to a timetable under subrule (4), any party may, before the expiry of the applicable period referred to in subrule (1), bring a motion for a status hearing. O. Reg. 170/14, s. 10.

(6) For the purposes of subrule (5), the hearing of the motion shall be convened as a status hearing. O. Reg. 170/14, s. 10.

(7) At a status hearing, the plaintiff shall show cause why the action should not be dismissed for delay, and the court may,

(a) dismiss the action for delay; or

(b) if the court is satisfied that the action should proceed,

(i) set deadlines for the completion of the remaining steps necessary to have the action set down for trial or restored to a trial list, as the case may be, and order that it be set down for trial or restored to a trial list within a specified time,

(ii) adjourn the status hearing on such terms as are just,

(iii) if Rule 77 may apply to the action, assign the action for case management under that Rule, subject to the direction of the regional senior judge, or

(iv) make such other order as is just. O. Reg. 170/14, s. 10.

11The parties have made submissions on the test to be applied in determining whether an action should be dismissed for delay under subsection 7.

12The Moving Party argues that the governing authority is Master Short’s decision in Cobalt Capital CA Textile Investments, L.P. v. Spiros Pantziris et al., 2017 ONSC 4664 in which Master Short stated as follows at paras. 1 and 2:

1In the 2016 edition of Ontario Superior Court Practice, Mr. Justice Todd Archibald, and his co-editors (with my emphasis added) commented upon the present application of Rule 48.14 as follows:

•Judicial discretion The determination whether to allow the action to proceed is discretionary. Rule 48,14(7)(a) provides that the court "may" dismiss for delay. P need not rigidly satisfy both aspects of the test but the two factors, acceptable explanation for the delay and demonstrating absence of prejudice to D, must be considered, together with any other relevant factors, on a contextual basis. There will be some cases where P can show cause that on the whole, it would be unfair for the action to be dismissed. Determining fairness or unfairness requires a consideration of all the circumstances and a certain balancing of the respective interests of the parties. [Koepcke v. Webster, [2012] O.J. No. 230, 2012 ONSC 357 (Ont. Master). See also Sepehr Industrial Mineral exports Co. v. Alterative Marketing Bridge Enterprises Inc.,.2007 23175 (ON SC), [2007] O.J. No.2438, 86 O.R (3d) 550 (Ont. S.C.J.).]

2This extract effectively capsulizes my approach on this motion seeking to extend the time to set this matter down for trial.

13In contrast the Responding Parties submit that the applicable principles are those set out in paras. 10 to 13 of the decision of the Ontario Court of Appeal in Southwestern Sales Corporation v. Spurr Bros. Ltd., 2016 ONCA 590:

10 The Rules of Civil Procedure contain general and specific provisions to create a culture of timely civil justice. At the general level, rule 1.04(1) requires courts to construe the rules "to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits." At the specific level, rule 48.14 establishes a presumptive timeframe for the listing of a civil action for trial which, if not met, requires the plaintiff to show cause why the action should not be dismissed. Rule 48.14 provides the court with a tool by which to assume an active role in controlling the pace of litigation: Faris, at para. 29; 1196158 Ontario, at para. 34.

11 The presumptive time period for listing a civil action for trial contained in rule 48.14(1) reminds plaintiffs of their obligation to move their actions forward expeditiously to their resolution or final determination on the merits and cautions that they bear the consequences of conducting their actions in a dilatory manner: Faris, at para. 33.

12 The Faris and Reid tests describe what a dilatory plaintiff must demonstrate to a court to restore a dismissed action: the Reid test deals with administrative dismissal orders made by registrars; the Faris test concerns dismissal orders made at status hearings.

13 Under the Faris test, a plaintiff seeking to set aside a dismissal order made at a status hearing must demonstrate two things: (i) there was an acceptable explanation for its delay and (ii) if the action were allowed to proceed, the defendant will suffer no non-compensable prejudice.

14I agree with my colleague, Justice Akbarali, who held in Postmedia Network Inc. v. Meltwater Holding B.V., 2017 ONSC 6036 at paras. 14 and 15 that the test remains the Faris test. I say respectfully that I am not persuaded that the test has changed by virtue of changes to Rule 48.14. Counsel for the Moving Party drew to my attention no authority following Master Short’s broader approach. I am persuaded that the Faris test is mandated by precedent and gives proper weight to the material considerations.

15Rule 36 provides:

RULE 36 TAKING EVIDENCE BEFORE TRIAL

WHERE AVAILABLE

Definition

36.01 (1) In this rule,

“party” includes a party to a pending or intended proceeding. O. Reg. 8/07, s. 1.

By Consent or by Order

(2) A party who intends to introduce the evidence of a person at trial may, with leave of the court or the consent of the parties, examine the person on oath or affirmation before trial for the purpose of having the person’s testimony available to be tendered as evidence at the trial. O. Reg. 8/07, s. 1.

Discretion of Court

(3) In exercising its discretion to order an examination under subrule (2), the court shall take into account,

(a) the convenience of the person whom the party seeks to examine;

(b) the possibility that the person will be unavailable to testify at the trial by reason of death, infirmity or sickness;

(c) the possibility that the person will be beyond the jurisdiction of the court at the time of the trial;

(d) the expense of bringing the person to the trial;

(e) whether the witness ought to give evidence in person at the trial; and

(f) any other relevant consideration. O. Reg. 8/07, s. 1.

Expert Witness

(4) Before moving for leave to examine an expert witness under subrule (2), the moving party shall serve on every other party the report of the expert witness referred to in subrule 53.03 (1) (calling expert witness at trial) unless the court orders otherwise. O. Reg. 8/07, s. 1.

Interim Costs, Pending or Intended Proceeding

(5) Where an order is made under subrule (2) for the examination of a witness in respect of a matter that is or will be the subject of a pending or intended proceeding, the court may, if it considers it appropriate to do so, order the moving party to pay to any other party, in advance of the examination, any or all of the costs reasonably expected to arise for the other party from the examination and any related cross-examination or re-examination. O. Reg. 8/07, s. 1.

PROCEDURE

36.02 (1) Subject to subrule (2), Rule 34 applies to the examination of a witness under rule 36.01, unless the court orders otherwise, and, for the purpose, a reference in Rule 34 to a party includes a reference to a party to a pending or intended proceeding. O. Reg. 8/07, s. 2.

(2) A witness examined under rule 36.01 may be examined, cross-examined and re-examined in the same manner as a witness at trial. R.R.O. 1990, Reg. 194, r. 36.02 (2).

EXAMINATIONS OUTSIDE ONTARIO

36.03 Where an order is made under rule 36.01 for the examination of a witness outside Ontario, the order shall, if the moving party requests it, provide for the issuing of a commission and letter of request under subrules 34.07 (2) and (3) for the taking of the evidence of the witness and, on consent of the parties, any other witness in the same jurisdiction, and the order shall be in Form 34E. R.R.O. 1990, Reg. 194, r. 36.03.

USE AT TRIAL

36.04 (1) In subrules (2) to (7), where an action,

(a) is brought by or against a corporation, “party” includes an officer, director or employee of the corporation;

(b) is brought by or against a partnership or a sole proprietorship using the firm name, “party” includes each person who was, or is alleged to have been, a partner or the sole proprietor, as the case may be;

(c) is brought by or against a party under disability, “party” includes the litigation guardian;

(d) is brought by or against an assignee, “party” includes the assignor;

(e) is brought by or against a trustee of the estate of a bankrupt, “party” includes the bankrupt;

(f) is brought or defended for the immediate benefit of a person who is not a party, “party” includes the person for whose immediate benefit the action is brought or defended. R.R.O. 1990, Reg. 194, r. 36.04 (1); O. Reg. 69/95, s. 18.

(2) At trial any party may use the transcript and videotape or other recording of an examination under rule 36.01 or 36.03 of a witness who is not a party as the evidence of the witness, unless the court orders otherwise on the ground that the witness ought to give evidence at trial or for any other sufficient reason. R.R.O. 1990, Reg. 194, r. 36.04 (2).

(3) A witness who is not a party and whose evidence has been taken under rule 36.01 or 36.03 shall not be called to give evidence at the trial, except with leave of the trial judge. R.R.O. 1990, Reg. 194, r. 36.04 (3).

(4) With leave of the trial judge or the consent of the parties, a party may use at trial the transcript and a videotape or other recording of an examination under rule 36.01 of a witness who is a party as the evidence of the witness. R.R.O. 1990, Reg. 194, r. 36.04 (4).

(5) In exercising its discretion under subrule (4), the court shall take into account,

(a) whether the party is unavailable to testify by reason of death, infirmity or sickness;

(b) whether the party ought to give evidence in person at the trial; and

(c) any other relevant consideration. R.R.O. 1990, Reg. 194, r. 36.04 (5).

(6) Use of evidence taken under rule 36.01 or 36.03 is subject to any ruling by the trial judge respecting its admissibility. R.R.O. 1990, Reg. 194, r. 36.04 (6).

(7) The transcript and a videotape or other recording may be filed with the court at trial and need not be read or played at trial unless a party or the trial judge requires it. R.R.O. 1990, Reg. 194, r. 36.04 (7).

IV. ANALYSIS

16I am cognizant that my decision will affect the rights of the Plaintiff. I do not rely upon her being a sophisticated litigant. The Plaintiff’s counsel contends only that I bear in mind the fact that the Plaintiff’s rights are in issue; he does not argue that she is not bound by the consequences of her lawyer’s actions on this motion. On the record before me and on the argument made by counsel for the Moving Party, I see no reason to relieve the Plaintiff of the consequences of her lawyer’s conduct of the action in my application of the Faris test. I turn now to that analysis.

17The Moving Party argues that the action proceeded expeditiously until December of 2014 and thereafter nothing was done by the Plaintiff until this motion was served on May 8, 2017; that the delay was caused by health and practice issues of the Plaintiff’s lawyer; and that there is no prejudice to the Responding Parties, since the evidence of Ahmed should have been preserved under Rule 36.

18The Responding Parties argue that there has not been sufficient particularity in the evidence adduced by the Moving Party to demonstrate the medical issues of the Plaintiff’s lawyer; that he could have given the brief to another lawyer to avoid delay; and that the Responding Parties are prejudiced in their defense, because a key issue is the independent legal advice provided by Ahmed to the Plaintiff and Ahmed’s medical condition has made his memory materially defective on the issue.

19I find that the Plaintiff has not discharged her onus to establish the two elements of the Faris test. Accordingly, I dismiss the action for delay.

20The affidavit of the lawyer for the Plaintiff states that in first half of 2015 he was preparing for a major trial and developed medical issues that affected his ability to manage his practice; and further that in the spring of 2016 he obtained treatment and began to return with greater focus to his practice. He stated additionally in the affidavit that in the fall of 2016 and early 2017 he was preoccupied with other litigation; and that he again suffered from medical issues and practice issues which kept him from a focus on the Plaintiff’s action. He stated as well that he effectively ran a sole practitioner’s practice with limited support and resources.

21I do not find that this evidence satisfactorily explains the delay. This evidence lacks particularity. Moreover, it does not address why the lawyer in question did not arrange for alternative counsel in light of the medical and practice issues he was experiencing.

22Further, the Plaintiff has not discharged her onus to demonstrate that, if the action proceeds, the Defendants will not suffer non-compensable prejudice. The affidavit of Ahmed, which attaches a doctor’s note, provides evidence (1) that Ahmed is 83 years old and has not practised law since 2014; (2) that his health has deteriorated seriously since the Plaintiff’s action has been commenced; (3) that he is very weak; (4) that in 2014 he suffered a stroke; (5) that following the stroke he was diagnosed with a brain tumour; (6) that since that diagnosis he has suffered progressively worsening memory loss; (7) that his memory is now poor; (8) that he has vision problems which make reading difficult; and (9) that he has poor recollection of the events subject of the action.

23It is obvious that the testimony of Ahmed and his credibility would be key to a trial of the action, since his independent legal advice would be important to the case of the Responding Parties. His evidence and credibility are practically speaking no longer available, given his medical condition. This circumstance is clear prejudice within the meaning of the second prong of the Faris test.

24I do not accept the Moving Party’s argument that the availability of Rule 36 to Ahmed answers the prejudice point. It was the Plaintiff’s duty to move the action forward. Ahmed did not interfere with the Plaintiff’s ability to respect that obligation by not employing Rule 36 to preserve his own evidence for trial.

V. COSTS

25If the parties cannot agree on costs, I will hear submissions in writing of no more than three pages, excluding a bill of costs. The Responding Parties are to serve and file their submissions within 14 days from the release of these reasons. The Moving Party is to serve and file her submissions within 14 days from service of the last of the Responding Parties’ costs submissions served on her. There shall be no reply.

Bloom, J.