Court File and Parties
CITATION: Soenens v. Bolduc, 2017 ONSC 7471
COURT FILE NO.: C-6410/01
DATE: 20171213
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MICHEL SOENENS and LAURI SOENENS
Plaintiffs (Responding Parties)
– and –
JENNIFER BOLDUC and GUY BOLDUC
Defendants (Moving Parties)
David B. Hayward, for the Plaintiff, Michel Soenens.
Lauri Soenens, unrepresented and not appearing.
Dhiren R. Chohan, for the Defendants.
HEARD: December 1, 2017
Endorsement
r. d. gordon, r.s.j.
[1] The Defendants ask that the Plaintiffs’ action be dismissed for delay. The Plaintiffs brought a cross-motion to strike the Defendants’ motion for failure to comply with the timelines set by the court for its completion.
[2] The Plaintiffs’ cross-motion was withdrawn at the outset of argument.
[3] With respect to the Defendants’ motion to dismiss for delay, the legal principles are not complicated and were summarized nicely by the Court of Appeal in Langenecker v. Sauve, 2011 ONCA 803: A case may be dismissed for delay in one of two situations: First, when the delay is caused by intentional conduct of the plaintiff or his counsel that demonstrates a disdain or disrespect for the court process; or second, when the delay is inordinate, inexcusable and such that it gives rise to a substantial risk that a fair trial of the issues in the litigation will not be possible because of the delay.
[4] The Defendant brings its motion in this case under the second situation to which I have referred.
[5] I agree that the delay in bringing this matter to trial has been inordinate. The action was started in 2001. We are on the cusp of the 18th anniversary of the accident that gave rise to the claim. It has been almost 16 years since the statement of claim was issued. The delay has been inordinate by any standard.
[6] Whether the delay has been inexcusable requires closer scrutiny. It requires that I examine the reasons for delay and assess whether those reasons afford an adequate explanation. In that regard I note that until the matter was set down for trial in May of 2006, the litigation has followed a largely normal course. Discoveries were completed, medical reports were obtained and settlement discussions were undertaken.
[7] Following the filing of the trial record, a pre-trial date was set for January 24, 2007. It was subsequently adjourned at the request of the Defendants and on consent, having regard to a further defence medical scheduled for March 27, 2007. The pre-trial was rescheduled for May 29, 2007.
[8] The first pre-trial was conducted on May 29, 2007 but no settlement ensued. The matter was scheduled for trial to begin December 1, 2008 and a further pre-trial was scheduled for November 15, 2008. At this second pre-trial, it became apparent that the Plaintiff was not adequately prepared to prove his economic loss. As a result, but with the consent of the Defendant, the trial was adjourned and subsequently scheduled for December 7, 2009.
[9] The Plaintiff served his economic loss report on August 21, 2009. As the Defendants did not have adequate time to respond to the economic loss report, and because the Plaintiff had, in the meantime, been involved in another motor vehicle accident, the parties agreed to adjourn the trial scheduled for December 7, 2009. On motion to the court for the adjournment, the court set a timetable to bring the matter to trial. Part of the order required that any further examinations for discovery be conducted by March 1, 2010. It was not until October of 2010, that defence counsel requested further examination of the Plaintiff.
[10] At some point, the matter was once again placed on a trial list for January of 2013. At the request of the Plaintiff, and with the consent of the Defendants, this trial date was adjourned to May 27, 2013. At the request of the Plaintiff, but again with the consent of the Defendants, the May 27, 2013 trial date was vacated, and a further pre-trial scheduled for November 27, 2013.
[11] At the pre-trial of November 27, 2013 the presiding judge endorsed that the Plaintiff would have until February 28, 2014 to seek further opinions, that the matter may be scheduled for further pre-trial, and that is was to be put into assignment court in May of 2014 to set a date for trial.
[12] The subsequent assignment court endorsements are not entirely clear, but it appears that this matter was adjourned on a few occasions to allow for a further pre-trial on November 19, 2014. Just prior to that scheduled date, counsel for the Plaintiff got off record, with the result that the pre-trial did not proceed. The matter was then adjourned on further occasions to a pre-trial held on November 25, 2015. The matter did not settle at this pre-trial.
[13] The Plaintiff subsequently attended a defence medical assessment at the end of December of 2015. The matter has sat essentially dormant from then until the Plaintiffs formally appointed their current counsel in April of 2017. In this interim period, the affidavit of the Plaintiff indicates that he was overwhelmed and despondent over the litigation process. He says he understood from the letter of the Defendants’ lawyer that he could expect a trial date to be set.
[14] What is apparent from this brief history of the proceedings is the following: First, the Plaintiff has always wished to proceed with this action and has always intended to see the matter through to trial. He has been an active participant in several pre-trials, has attended defence medicals as required, and has attended discovery as required. Second, counsel for the Defendants has either requested or consented to many of the pre-trial and trial adjournments that have taken place. Third, proceeding to trial in this matter has been complicated by the Plaintiff’s involvement in an intervening accident.
[15] Having reviewed the documentation in some detail, my sense is that counsel for the defendants has been patient with the manner in which the case has progressed. He has reasonably accommodated the Plaintiffs when their circumstances made adjournment requests necessary. He has also been reasonably accommodated by the Plaintiff when adjournments have been requested by him. All of this is in the best traditions of the bar. However, it does not seem appropriate to now deny the Plaintiff his day in court for delay that has arisen in this fashion. This is not a situation where years and years have passed while the Defendants sat idly by waiting for something to happen. The case was actively scheduled for pre-trials and trials over several years, and most every adjournment was made either at the request of or with the consent of the defendants.
[16] In the context of a request for dismissal of an action for delay, when much of the delay results from the actions of the defendants or their counsel, or is consented to by them, it can hardly be said to be inexcusable.
[17] In summary, from the date the statement of claim was issued to the date the trial record was served, this matter progressed in a largely conventional fashion. From March 2006 until December of 2015, the progress of the trial was delayed for many reasons, but always either at the request of the Defendants, or with their consent. From January of 2016 to March of 2017 the Plaintiff was largely inactive. His evidence that he was overwhelmed by the litigation process and in any event was awaiting the setting of a trial date was uncontested.
[18] In all of these circumstances, the delay of this case although inordinate, is not inexcusable. It follows that the Defendants’ motion for dismissal is declined. The Plaintiff Laurie Soenens is now unrepresented and did not respond to the motion. Counsel suggested that her action ought to be dismissed given her failure to respond. I disagree. If the delay related to Mr. Soenens’ action is excusable, so too is the delay related to her action.
[19] Although I have declined to dismiss the Plaintiffs’ action, there is clearly a need to set some timelines to have the matter reach trial in a timely fashion. Accordingly, I am ordering as follows:
That Plaintiffs are granted leave to obtain an expert orthopedic report to respond to the most recent defence medical, and to obtain an updated expert report concerning Mr. Soenens’ TMJ injury provided the report(s) are served on or before April 1, 2018.
The Defendants are granted leave to conduct a further examination for discovery of Mr. Soenens, restricted to the circumstances surrounding his second accident and the injuries arising therefrom, to be conducted on or before April 1, 2018.
The Defendants are granted leave to bring a motion for an order permitting them to file a jury notice, provided such motion, along with supporting material is filed on or before January 15, 2018. The motion shall be returnable on a regular civil motions date set in consultation with counsel for the Plaintiff that will allow him sufficient time to deliver response documents. The motion shall be argued as a short motion.
This action shall be placed on the assignment court list for March 2018 to set a date for trial. It is anticipated that by that date the issue of whether the matter is to be tried by jury will have been determined. If the matter is to proceed with a jury, a four week trial shall be set. If the matter is to proceed without a jury, a three week trial shall be set. The trial coordinator is instructed to set this action to a trial list on which it will be the first matter scheduled to proceed.
The parties shall attend the pre-trial/trial management conference currently scheduled for April 3, 2018.
[20] I have considered the issue of costs. Although I have not granted the motion to dismiss, I have granted alternate relief designed to move this matter forward in a timely manner. Furthermore, although I have found the delay to be excusable, the conduct of the Plaintiff in failing to move this matter forward is not to be condoned. In all of the circumstances, it is appropriate that each party be responsible for their own costs.
R. D. GORDON, R.S.J.
Released: December 13, 2017
CITATION: Soenens v. Bolduc, 2017 ONSC 7471
COURT FILE NO.: C-6410/01
DATE: 20171213
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MICHEL SOENENS and LAURI SOENENS
Plaintiffs (Responding Parties)
– and –
JENNIFER BOLDUC and GUY BOLDUC
Defendants (Moving Parties)
Ruling on motion
R. D. GORDON, R.S.J.
Released: December 13, 2017