Court File and Parties

CITATION: Draskovic v. Toronto Transit Commission, 2017 ONSC 7582

COURT FILE NO.: CV-05-293192PD3

MOTION HEARD: 20171213

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Kim Draskovic, Plaintiff

AND:

John Doe and Toronto Transit Commission, Defendants

BEFORE: Master Jolley

COUNSEL: Michael Kealy, Counsel for the Moving Party Plaintiff

Sarah Merredew, Counsel for the Responding Party Defendant

HEARD: 13 December 2017

REASONS FOR DECISION

[1] The plaintiff brings a motion for an order setting aside the Registrar’s order made 7 February 2017 dismissing her action for delay. By way of second motion, she also seeks to restore her action to the trial list.

Motion to set aside dismissal for delay

[2] This motion gives rise to two issues: (1) did the Registrar have jurisdiction to make the order dismissing the plaintiff’s action for delay; and (2) if so, should the order be set aside.

[3] For the reasons set out below, the motion is allowed and the order of the Registrar set aside.

Facts

[4] The plaintiff alleges that in July 2003 she suffered a fall while exiting a TTC bus. She commenced this action in July 2005. Examinations for discovery took place in 2006. The examination of the defendant was completed. The plaintiff’s examination was commenced but not completed at that time. The parties participated in an unsuccessful mediation in November 2006.

[5] On 4 January 2008 the parties obtained an order and a consent timetable. The timetable required the defendant to complete the plaintiff’s examination for discovery by 30 June 2008. It required the plaintiff to answer her undertakings by 31 July 2008 and required both parties to bring any motions on undertakings and refusals by 30 September 2008. The action was to be set down by 1 November 2008. The plaintiff set the action down for trial a few weeks after this order, on 23 January 2008.

[6] On 6 February 2009 the parties completed a Certification Form to Set Pre-Trial and Trial Dates and the plaintiff filed it with the trial coordinator. In the form it is noted that the defendant still had to complete its examination of the plaintiff, deal with the plaintiff’s undertakings and refusals and would also be requesting updated productions. Together they estimated the trial would take 15-20 days in total.

[7] From that time to June 2011 the plaintiff sought documents from non-parties in answer to her various undertakings and forwarded them to counsel for the defendant. While there is some dispute on this point, it is the plaintiff’s position that by June 2011 she had answered all of her undertakings, with one answered on a best efforts basis. What is not in dispute is that the defendant did not move on the plaintiff’s undertakings and refusals.

[8] After June 2011 counsel for the parties ceased corresponding. The defendant did not pursue the plaintiff’s continued examination for discovery and the plaintiff did not pursue pre-trial and trial dates from the court.

[9] In May 2016 the plaintiff retained new counsel, for the reasons set out below. In July 2016, new counsel wrote to the defendant to move the matter forward and attempted to discuss the continued examination of the plaintiff. The defendant requested that additional records be produced before it would consider discoveries and those records were sent. In January 2017, counsel for the plaintiff wrote to the court to schedule a status hearing, which was ultimately a hearing to schedule a timetable. In January 2017 a date of 22 March 2017 was set for that hearing. On 13 February 2017 the defendant advised plaintiff’s counsel that the action had been dismissed on 7 February 2017. There is no clear evidence as to when the action was struck from the trial list.

Issues

Issue One: Should the Registrar have made the order dismissing the plaintiff’s action for delay?

[10] The Registrar has jurisdiction to dismiss an action for delay in two circumstances. First, pursuant to Rule 48.14(1)(a), the Registrar can dismiss an action where it has not been set down for trial by the later of the fifth anniversary of the commencement of the action and 1 January 2017. Here the plaintiff had set down the action for trial by filing her trial record in January 2008. Therefore the Registrar would not have had jurisdiction to dismiss the action for delay under Rule 48.14(1)(a).

[11] Second, pursuant to Rule 48.14(1)(b) the Registrar can dismiss an action where it was struck off a trial list and has not been restored to a trial list by the later of the second anniversary of being struck off and 1 January 2017. The parties agree that at some point this action was struck from the trial list. They disagree on when that occurred and even if that date can be established. Unless and until that date is known, one cannot definitively determine when the Registrar was in a position to strike the matter as being not restored within two years of it being struck.

[12] As noted, the action was dismissed for delay on 7 February 2017. Is there evidence that the action was struck from the trial list by 7 February 2015? It is true that when plaintiff’s new counsel became involved, he noted in his correspondence to the defendant in July 2016 that “I understand this matter was set down for trial in around 2008, and I can only assume it was struck from the court trial list at some point.” The defendant made inquiries of the court in July 2016 and was told that the matter had been struck. However, the computer system did not indicate the date on which the action was struck and there are no further records to which the pre-trial office had access to confirm the date.

[13] While it may have been the case that the action was struck by 7 February 2015, the fact is there is no information available to confirm that is the case. Given the significant implications to the plaintiff of having her action dismissed for delay, I find that there had to have been evidence before the Registrar that the action had been struck from the trial list by 7 February 2015 before the action could have been dismissed. As there is no reliable evidence available to this court that the action had been struck from the trial list by 7 February 2015, there is, unfortunately, no basis on which to find that the Registrar had the jurisdiction to dismiss the action for delay on 7 February 2017. As I cannot be satisfied that there was jurisdiction under Rule 48.14(1)(b) to permit the Registrar to dismiss the action for delay, the dismissal order is set aside on that basis.

Issue Two: Should the order dismissing the action for delay be set aside?

[14] If I am incorrect on this point and the order was properly issued, I find that the court should exercise its discretion and set aside the order.

[15] There are four well established factors to consider when deciding whether to set aside an order to dismiss an action: (i) explanation of the litigation delay – a deliberate decision not to advance the litigation will usually be fatal; (ii) inadvertence in missing the deadline – the intention was always to set the action down within the time limit; (iii) the motion is brought promptly – as soon as possible after the order came to the party’s attention; and (iv) no prejudice to the defendant – the prejudice must be significant and arise out of the delay. (Reid v. Dow Corning Corp. 2002 CarswellOnt 5899 (Ont. Div. Ct.); HB Fuller Co. v. Rogers 2015 ONCA 173 (C.A.) at paragraph 20).

[16] In determining whether to set aside a Registrar’s dismissal order the court is to adopt a contextual approach and weigh all the factors in order to make a decision that is just in the circumstances of the case (Scaini v. Prochnicki 2007 ONCA 63). The court is to consider the factors in order to arrive at a solution that is just to the plaintiff and to the defendant in the particular circumstances of the case (HB Fuller, supra, at paragraph 21).

Factor One: Is there an explanation for the litigation delay?

[17] The plaintiff is required to adequately explain the delay in the progress of the litigation from the institution of the action until the deadline for setting the action down for trial (or here, the deadline to restore the matter to the trial list) either satisfying the court that steps were being taken to advance the litigation toward trial or explain why those steps were not taken (Reid v. Dow Corning Corp.., supra at paragraph 41).

[18] The action was moving forward until June 2011. By setting it down for trial in January 2008 the plaintiff represented that she was ready for trial. The parties outlined on the Certification Form what steps needed to be done to be ready for trial and advised that they were ready for a pre-trial date.

[19] Thereafter there is no activity on the file – at least as between the parties – until July 2016. What is the plaintiff’s explanation for this delay of 5 years? In short, she alleges that she was misled by her lawyer as to the status of the file to the point that her lawyer advised her in late 2015 that he had settled the action.

[20] The plaintiff deposes that throughout 2010 and 2013 she followed up regularly with her lawyer, who advised her that he was working on her case and was in settlement negotiations with the TTC.

[21] The plaintiff deposes that she continued to follow up from 2013 to April 2016. Specifically she sent numerous texts to her lawyer from 2013 to 2016 and had at least three telephone calls with him in 2014 about the status of her file.

[22] Finally in September 2015 her lawyer advised that he had settled her action and asked her to attend at his office to sign releases, which she did in September 2015. At her lawyer’s request, she attended at his office again in December 2015 to sign what he described to her as standard settlement documents.

[23] The plaintiff deposes that she followed up frequently after December 2015 as she wanted her settlement funds. In early 2016 her lawyer advised that the TTC had not paid and he had filed contempt motion materials to compel compliance with the settlement. She was told that motion had been heard and her lawyer had obtained a court order requiring the TTC to pay the funds with costs by 5 April 2016.

[24] At the request of the defendant on this motion, the plaintiff delivered screen shots or photos of a multitude of text messages alleged to be between her and her lawyer from 2014 to 2016, redacted for privilege.

[25] The plaintiff also delivered transcriptions of telephone calls she had recorded between her and her lawyer in March 2016. In the 1 March 2016 telephone call, the lawyer advised the plaintiff that he was working on getting her funds as if she didn’t get paid, he didn’t get paid. On 9 March 2016 the lawyer advised of his intention to bring the contempt motion to obtain the settlement funds. On 23 March 2016 the transcription notes the lawyer advising the plaintiff that he had just left the judge’s chambers and obtained an order that the funds be delivered by 5 April 2016.

[26] The telephone transcription of 7 April 2016 notes another lawyer at the firm finally advising the plaintiff that the action had not settled, that the lawyer had misled her in that regard and that she should obtain independent legal advice.

[27] The defendant takes the position that these photos of texts and voicemail transcriptions are not reliable and should be given no weight. While it is possible the texts could have been doctored, there is no evidence on this motion that that is the case. Nor is there evidence that someone impersonated both the plaintiff’s first lawyer and then his partner on the telephone calls that were transcribed by the plaintiff’s current lawyer upon listening to the tapes. The defendant’s position is purely speculative.

[28] I am satisfied that the plaintiff has explained the delay during this period. She did all that was expected of her by attending her examination for discovery, attending medical appointments arranged by her lawyer after which medical reports were delivered, attending an assessment by the Toronto Transit Commission Insurance Company Limited (“TTCIC”) and answering her undertakings. She continued to follow up with her lawyer until she was advised that her action had settled. She followed up thereafter on the whereabouts of the settlement funds. She cannot have expected her lawyer to lie to her about the state of the action. While she had not delivered a sworn affidavit of documents, she had produced all the medical records including an OHIP summary as of November 2008 as well as her income tax returns.

[29] The defendant did not arrange a continued examination for discovery although it had agreed to a consent timetable requiring it to conduct that examination by 30 June 2008. It took no steps in 2009 either even though it noted on the Confirmation Form that it still needed to complete the plaintiff’s examination. Nor did it make those arrangements after it received numerous documents in answer to undertakings between 2009 and June 2011. As part of the contextual analysis on motions such as these, the court is to examine not only the conduct of the plaintiff who bears primary responsibility for the conduct of the action, but also the defendant’s conduct as a relevant circumstance (HB Fuller, supra at paragraph 23).

[30] The plaintiff’s intention to move the matter forward is evidenced by the fact that she filed a trial record, indicating that she wished the matter to be placed on the trial list. Thereafter she followed up with her lawyer to the point that she was advised of the settlement and signed a release. There is nothing in the first lawyer’s file to suggest that the plaintiff wished to discontinue her action and she was deposed otherwise.

[31] One must next ask whether there is an explanation for the period July 2016 to 13 February 2017 when the plaintiff’s new lawyer learned her action was dismissed.

[32] The plaintiff’s new lawyer was retained in May 2016. His office contacted the TTC in July 2016 to discuss the status of the file and in September 2016 to arrange for the plaintiff’s continued examination. In response the defendant provided a list of information that it required “should your client wish to proceed with her action”. By that time, the defendant knew that the action had been struck from the trial list but did not advise the plaintiff’s new lawyer. Without that information, the plaintiff worked from October 2016 to January 2017 to assemble and provide the TTC with the updated records it had requested so that the plaintiff’s continued discovery could be completed.

[33] In January 2017 the plaintiff scheduled a hearing on 22 March 2017 to set a timetable. On 6 February 2017 plaintiff’s counsel wrote to the defendant with a proposed timetable. The defendant advised in response that the action had been dismissed.

[34] I am satisfied that the plaintiff’s new lawyer moved the action forward in the six months he was retained and that it was the plaintiff’s intention to take whatever steps were necessary to obtain a trial date.

Factor Two: Inadvertence in missing the deadline

[35] As noted above, the deadline to set the action down for trial was met. The court order required the matter to be set down by 1 November 2008 and it was in fact set down in January 2008 so that action could not be struck under Rule 48.14(1)(a).

[36] While the plaintiff’s new lawyer presumed that the action had been struck and was at risk of being dismissed, without knowing the date it was struck, I do not find that he should have known that a dismissal for delay was imminent under Rule 48.14(1)(b). What he did do was assemble productions so that the continued discovery could take place and request a status hearing and then a timetable motion to move the matter forward to trial.

[37] Had the defendant advised the plaintiff’s new lawyer in September 2016 that it had discovered in July 2016 that the action had been struck, the plaintiff’s lawyer could have moved then to restore the action. Instead, the defendant did not share this with the plaintiff and the parties continued to discuss what steps the plaintiff needed to take before the defendant would consider scheduling her continued examination. While there was no obligation on the defendant per se to advise the plaintiff that the action had been struck, the failure to do so counters the inference the defendant asks me to draw that plaintiff’s new counsel should have known the action was struck and should have brought a motion as soon as he was retained rather than take steps to try to get the file back on track.

[38] If any deadline was missed, I am satisfied that it was inadvertent.

Factor Three: Motion brought promptly

[39] The plaintiff learned of the dismissal order on 13 February 2017. On 15 February 2017 plaintiff’s counsel wrote to the court enclosing a Requisition to Schedule a Long Motion to set aside the dismissal for delay order. I am satisfied that the motion was brought promptly.

Factor Four: No prejudice to the defendant

[40] The onus is on the plaintiff to rebut the presumption of prejudice in this case. If the plaintiff succeeds in doing so, the defendant may then demonstrate actual prejudice.

[41] The plaintiff’s slip and fall was reported to the TTC on the day it happened. TTC completed a service report with details of its conversation with the plaintiff that day. A representative of the TTC interviewed the plaintiff in hospital. It also interviewed the operator who completed two occurrence reports. A month after the accident, the plaintiff attended at the TTC to be interviewed. An Intake Report was completed that set out her status, employer information, injuries, treatment being rendered and hospital details. She also provided a signed statement. By 8 September 2003 the defendant advised the plaintiff that the investigation was complete and that it could find no negligence or liability on the part of the TTC. At the request of the TTC, the plaintiff still continued to provide it with further information.

[42] She applied to the TTCIC for accident benefits and on 30 September 2003 was advised that her application was denied. On 31 October 2003 TTCIC advised that it had completed its investigation and was prepared to entertain her accident benefits claim. She submitted the requested documentation to TTCIC and attended an orthopaedic assessment and an occupational therapist in-home assessment.

[43] This action was commenced in July 2005. In April 2006, as noted above, the defendant examined the plaintiff. The examination was not completed due to time constraints and the defendant reserved its right to continue that examination, which was eventually memorialized in the court ordered consent timetable.

[44] The plaintiff attended examinations by a psychiatrist and a rheumatologist at the request of her lawyer. Her lawyer continued to provide answers to undertakings including medical records and employment records from 2009 to 2011.

[45] Although the defendant has examined the plaintiff and has answers to her undertakings, it argues that it is prejudiced by the delay should the matter be permitted to proceed.

[46] In my view, the defendant cannot rely on the lack of continued examination or the lack of answers to undertakings as a ground for prejudice as it was open to it at any time to conduct that examination and bring a motion for answers. In fact, dates were set for those two events in the consent timetable in January 2008. As noted by Master Pope in Hubergroup Canada v. 2049669 Ontario Inc. 2017 ONSC 3784 at paragraphs 48 and 53, where a defendant takes no steps to schedule examinations for discovery during the interval of delay, that may nullify its position that he has been prejudiced by the delay:

While it is primarily a plaintiff’s responsibility to advance an action, it defies reason that a defendant can ‘sit in the bush’ and do nothing for almost three years, then claim that he or she has been prejudiced by the delay…. [T]he fact that the Patel defendants did nothing for the almost three years of delay that they now complain contributed to their prejudice, flies in the face of reason.”

[47] As for updated information, the plaintiff’s new counsel has continued to provide the documentation that the defendant requested in September 2016 as a pre-condition to it conducting any further examination. The plaintiff does not object to a continued examination in any event in light of the significant passage of time.

[48] The defendant deposes that there are four witnesses who no longer work for TTC who had relevant evidence. The TTC has last known addresses for three of those witnesses as well as witness statements or occurrence reports from them or, in one case, the witness’ evidence on his examination for discovery as the defendant’s representative. The fourth employee did not see the incident but called it in to Transit Control. The defendant could have obtained a witness statement from him when it was first investigating the matter in 2003. Further, if the defendant believed that he had relevant evidence it should have ensured that it had his last known address before he retired in 2013.

[49] The defendant also notes the death of the plaintiff’s family doctor. The doctor died in or about September 2009 so in all likelihood he would not have been available for trial even had the matter proceeded absent the dismissal. The defendant had taken the position that the action was not ready for trial absent its continued examination for discovery of the plaintiff and it had not arranged for that continued discovery by September 2009. The family doctor’s notes from the mid-1990s have been produced so the plaintiff’s pre-accident health is documented.

[50] Notes of two other doctors have not been produced. The names of those two doctors were disclosed in 2005 in the OHIP summary and their notes could have been requested at any time. Employment records of the plaintiff were never requested. To the extent they were requested in September 2016, a number of those records were provided. These damages issues were to have been explored on the continued examination of the plaintiff, which the defendant never arranged.

[51] Again, this is not to shift responsibility for moving the action forward onto the defendant but the defendant does have some responsibility for locating witnesses during the currency of the action to preserve needed evidence (Kwik Snaks Ltd. v. Chepil 2017 ONSC 2921 at paragraph 31).

Conclusion on Issue Two

[52] In conclusion, I note the dicta of Sharpe, J.A. in Marché D’Alimentation Denis Thériault Ltée v. Giant Tiger Stores Ltd. 2007 ONCA 695, as follows:

“Expeditious justice must be balanced with the public interest in having disputes determined on their merits. Where, despite the delay, the defendant would not be unfairly prejudiced should the matter proceed for resolution on the merits, according the plaintiff an indulgence is generally favoured.”

[53] I acknowledge that the delay has been substantial. However, in this situation I balance that with the words of the Court of Appeal in HB Fuller at paragraph 27:

“The court’s preference for deciding matters on their merits is all the more pronounced where delay results from an error committed by counsel. As the court stated in Habib, supra [2012 ONCA 880] at para. 7, “[O]n a motion to set aside a dismissal order, the court should be concerned primarily with the rights of the litigants, not with the conduct of their counsel.” In Marché, Sharpe, J.A. stated, at para. 28, “The law will not ordinarily allow an innocent client to suffer the irrevocable loss of the right to proceed by reason of the inadvertence of his or her solicitor”.”

[54] I am satisfied that the plaintiff has provided a reasonable explanation for the delay, that any failure to restore the action to the trial list was inadvertent and that she moved expeditiously when she was told her action had been dismissed. I am also satisfied that the plaintiff has rebutted any implied prejudice and the defendant has not demonstrated actual prejudice should the dismissal order be set aside. Taking a contextual approach and weighing all the factors, I find that the most just result is to set aside the Registrar’s order dismissing the action for delay and I so order.

Motion to restore the action to the trial list

[55] The defendant takes the position that, if the dismissal order is set aside, the action should not be restored to the trial list as it is not ready for trial. I agree. At all times, it was understood that the defendant would conduct a continued examination of the plaintiff. That examination may also give rise to motions. The parties must also deal with expert’s reports and perhaps a defence medical before the action is ready for trial.

[56] Counsel on both sides are experienced and I leave it to them to work out a timetable with mutually convenient deadlines. Once those steps are taken, the matter can be set down for trial. I will provide an outside date of 31 March 2019 for setting the action down. If the parties cannot agree on a workable timetable, they are free to bring a motion to the court to set a timetable.

Costs

[57] Both parties sought their costs of the motion. The defendant argued that it was entitled to its costs in any event of the outcome as the plaintiff was seeking an indulgence of this court after an extraordinary period of delay. The plaintiff seeks her costs as she has been successful on the motion.

[58] The defendant was entitled to oppose the motion, in my view, up to the conclusion of the cross examination of the plaintiff and the defendant’s representative. At that point, it should have been apparent that the delay was not the fault of the plaintiff herself and that there was no actual prejudice.

[59] As such, I order no costs to that point but do order the defendant to pay the plaintiff her costs of preparing for the motion and the court attendance, in the amount of $1,500, within 30 days of this order.

Master Jolley

Date: 18 December 2017