Court File and Parties

COURT FILE NO.: CV-08-359313 MOTION HEARD: 2018-02-13 REASONS RELEASED: 2018-03-08

SUPERIOR COURT OF JUSTICE – ONTARIO

BETWEEN:

JOSEPH CARBERY Plaintiff

• and -

ST. MICHAEL’S HOSPITAL, OTIS CANADA INC., and THYSSENKRUPP ELEVATOR CANADA LIMITED Defendants

BEFORE: MASTER M.P. McGRAW

COUNSEL: W. G. Scott, Counsel for the Plaintiff B. Kates, Counsel for the Defendant Otis Canada Inc.

Reasons for Endorsement

I. Overview

[1] The Plaintiff brings a motion under Rule 48.14(5) for a status hearing to avoid the dismissal of this action for delay. The Defendant, Otis Canada Inc. (“Otis”) opposes this motion and brings a cross-motion to dismiss this action for delay under Rule 24.01(1).

II. History of This Action

The Incident and Initial Investigation

[2] The Plaintiff relies on the Affidavit of David Wilson sworn May 29, 2017 (the “Wilson Affidavit”) his counsel throughout these proceedings. The Plaintiff has also sworn an affidavit. The Plaintiff and Mr. Wilson were not cross-examined on their affidavits.

[3] This action arises from an incident which occurred on August 24, 2006 at St. Michael’s Hospital (“SMH” together with Otis, the “Defendants”) in Toronto. The Plaintiff, 73 at the time, alleges that he entered an elevator at SMH and was injured when the elevator doors closed suddenly and struck him causing injuries to his head, neck, back and shoulders.

[4] The Plaintiff retained Mr. Wilson to represent him. On November 7, 2006, Mr. Wilson’s office sent a notice letter to SMH setting out details of the incident. Crawford Insurance Adjustors (“Crawford”) advised by letter dated November 17, 2006 that it was investigating the incident and requested additional information and an interview with the Plaintiff. Mr. Wilson refused to permit an interview, however, he exchanged ongoing correspondence with Crawford regarding details of the incident and the Plaintiff’s medical condition.

[5] On December 3, 2007, Crawford put Otis on notice that it would be relying on Otis’ contract to maintain elevators at SMH and requested documentation from Otis.

[6] On December 4, 2007, the Plaintiff was assessed by Dr. S.W. Joseph Wong, a physiatrist.

Pleadings

[7] The Plaintiff commenced this action by Statement of Claim issued on July 22, 2008 (the “Original Statement of Claim”) claiming general damages of $200,000 and special damages of $100,000 against SMH for negligent condition of the premises and Otis and the Defendant Thyssenkrupp Elevator (Canada) Limited (“TEL”) for negligent installation and maintenance of the elevator. Otis was served with the Original Statement of Claim on August 14, 2008 and served a Notice of Intend to Defend on August 22, 2008.

[8] Otis served a Demand For Particulars on September 9, 2008 and the Plaintiff responded on September 25, 2008. On September 25, 2008, Healthcare Insurance Reciprocal of Canada (“HIROC”) served a Notice of Intent to Defend on behalf of SMH.

[9] On October 1, 2008, Otis, originally represented by Heenan Blaikie LLP (“Heenans”), served its Statement of Defence and Crossclaim. On November 13, 2008, Otis served an Amended Statement of Defence and Crossclaim. On November 7, 2008, HIROC served its Statement of Defence and Crossclaim on behalf of SMH. On November 24, 2008, TEL served its Statement of Defence and Crossclaim and Jury Notice.

[10] On or about January 7, 2009 the parties commenced discussions with respect to a dismissal of this action against TEL on the basis that the elevators where the incident occurred were maintained by Otis. On June 19, 2009, this action was dismissed against TEL on a without costs basis.

Documentary Discovery and Examinations For Discovery

[11] On July 8, 2009, Otis served a draft Affidavit of Documents. On October 21, 2009, HIROC served a draft Affidavit of Documents on behalf of SMH. On December 9, 2009, Mr. Wilson delivered the Plaintiff’s medical brief to counsel for the Defendants and on December 11, 2009, served the Plaintiff’s draft Affidavit of Documents. On June 30, 2010, Otis served additional documents.

[12] On July 7, 2010, the Defendants conducted their examinations for discovery of the Plaintiff. On July 14-15, 2010, Mr. Wilson wrote to counsel for the Defendants requesting certain information including maintenance logs and the identity of the receptionist who the Plaintiff initially spoke with on the date of the incident. Otis replied on September 1, 2010 and HIROC replied on January 17, 2011. On February 24, 2011, Otis’ counsel advised that they were still making inquiries regarding the location and availability of the maintenance logs and counsel for Otis suggested that Mr. Wilson raise these issues at examinations for discovery.

[13] On November 17, 2010, Otis’ counsel requested confirmation from Plaintiff’s counsel regarding whether the Plaintiff intended to continue with this action. Mr. Wilson confirmed by letter dated November 27, 2010.

[14] On or about March 14, 2011, Otis’ counsel made numerous requests to Mr. Wilson to provide the Plaintiff’s answers to undertakings. Otis brought a motion to compel the Plaintiff to provide answers to undertakings returnable August 4, 2011. Some answers were provided on July 29, 2011 and by Order of Master Abrams dated August 4, 2011 (the “Undertakings Order”), the Plaintiff was ordered to provide answers to outstanding undertakings by October 3, 2011. On October 14, 2011, Mr. Wilson provided some answers pursuant to the Undertakings Order and additional answers on November 27, 2011. Two outstanding answers were not provided until October 13, 2017.

[15] On November 16, 2011 and July 9, 2012, Otis served Offers to Settle on the Plaintiff.

[16] The Plaintiff’s examinations for discovery of the Defendants was originally scheduled to proceed on July 6, 2010 but were cancelled the day before by Mr. Wilson. Mr. Wilson did not circulate new dates until March 30, 2011. The examinations were then scheduled for January 4, 2012 but cancelled again by Mr. Wilson on December 21, 2011. On June 26 and 27, 2012, the Plaintiff conducted examinations of Garry McLeod of Otis and a representative of HIROC and completed Mr. McLeod’s examination on September 24 and November 9, 2012.

The Summary Judgment Motion and Motion For Leave To Amend

[17] By Order of Justice Low dated February 24, 2012, Otis’ summary judgment motion was scheduled for October 15, 2012 and a timetable was approved. Otis did not deliver its motion materials by August 1, 2012 as required by the timetable and on August 31, 2012, its summary judgment motion was adjourned to June 26, 2013.

[18] On November 13 and 28, 2012, Mr. Wilson provided Defendants’ counsel with documentation and information regarding the Plaintiff’s out of pocket expenses, requested Otis’ answers to undertakings and made an offer to settle. Mr. Wilson also requested the Defendants’ consent to amend the Original Statement of Claim to plead negligent design against Otis. Michael Katzman, agent counsel for Mr. Wilson, was retained to prepare materials for and argue the pleadings amendment motion and the summary judgment motion.

[19] On January 18, 2013, Otis’ counsel advised that it would oppose the Plaintiff’s motion returnable February 12, 2013 to amend the Original Statement of Claim. On January 22, 2013, Otis provided answers to undertakings. On February 6, 2013, HIROC advised that it would not oppose the Plaintiff’s motion.

[20] By Endorsement dated February 12, 2013 (the “Pleadings Endorsement”), Master Glustein (as he then was) granted the Plaintiff leave to amend the Original Statement of Claim to plead particulars of negligent design against Otis subject to the Plaintiff pleading discoverability and the underlying facts and Otis pleading a limitations defence.

Pleadings Order, Mediation and Defence Medical Examination

[21] Mediation was scheduled for April 30, 2013. As set out at paragraph 93 of the Wilson Affidavit, Mr. Wilson states that on February 25, 2013, he reviewed a draft Order based on the Pleadings Endorsement (the “Pleadings Order”) and an amended Statement of Claim (the “Amended Statement of Claim”) prepared by Mr. Katzman, however “over the course of the coming months, I continued to consider the amendments but eventually my primary focus turned to the mediation that was eventually scheduled for April 30, 2013.”

[22] On March 1, 2013, Otis’ counsel advised that its summary judgment motion returnable June 26, 2013 would be further adjourned to allow mediation to be scheduled, the parties to get pleadings in order and the service of any new productions required by amended pleadings. On March 27, 2013, Mr. Wilson provided the Defendants with copies of additional medical receipts.

[23] Mediation proceeded on April 30, 3013, however the action did not settle.

[24] From on or about May 8, 2013 until October 7, 2013, counsel for the parties corresponded regarding the Plaintiff’s defence medical examination, including whether or not each Defendant was entitled to an examination. The Plaintiff’s defence medical assessment for both Defendants was conducted by Dr. David Berbrayer on October 24, 2013. Otis also confirmed that it would withdraw its summary judgment motion without prejudice to bring it back on in the future.

[25] At paragraph 104 of the Wilson Affidavit, Mr. Wilson states as follows:

“Following the April 30, 2013 mediation and the parties’ ongoing discussions regarding defence medicals and Otis’ summary judgment motion, through inadvertence, I overlooked the need to amend the Statement of Claim and obtain a draft formal Order with respect to Master Glustein’s endorsement. It was my belief that the issue would be dealt with by Katzman, who argued the motion, and upon completion, the matter could be set down for trial. However, upon further review of the file, Katzman was actually seeking my input and approval of drafted materials. Therefore, each of us was looking to the other for progress.”

[26] On March 18, 2014, Stockwoods Barristers served a Notice of Change of Solicitors on behalf of Otis, replacing Heenans.

[27] On January 28, 2015, Mr. Wilson reviewed this matter and instructed Mr. Katzman to prepare the Amended Statement of Claim. On March 8, 2015, Mr. Wilson followed up with Mr. Katzman. On May 5, 2015, Mr. Katzman forwarded Mr. Wilson the Pleadings Endorsement, a Supplementary Affidavit, a draft Pleadings Order and draft Amended Statement of Claim.

[28] On December 5, 2015, Mr. Katzman sent an email to counsel for the Defendants requesting approval as to form and content for a draft Pleadings Order and draft Amended Statement of Claim. Mr. Katzman states in his email: “Unfortunately, it seems the issue of taking out the formal Order was overlooked.”

[29] On January 6, 2016, Otis’ counsel replied to Mr. Katzman’s email and proposed amendments to the Pleadings Order and advised that the Amended Statement of Claim did not provide sufficient particulars to comply with the Pleadings Endorsement. On April 11, 2016, Mr. Katzman instructed his office to take out the Pleadings Order, however, it was not entered until January 23, 2017.

[30] On November 15, 2016, with the dismissal deadline of January 1, 2017 approximately 6 weeks away, Mr. Wilson sent an email to Defendants’ counsel requesting their consent to a timetable providing for the delivery of the Amended Statement of Claim by January 31, 2017; Amended Defences by February 28, 2017; and the action to be set down for trial by April 30, 2017. Mr. Wilson states in the Wilson Affidavit that he believed that he needed to finalize the Plaintiff’s Amended Statement of Claim before this matter could be set down for trial.

[31] On November 25, 2016, Otis’ counsel advised that Otis would not consent to a timetable. On November 30, 2016, Mr. Katzman requisitioned a date for a motion for a status hearing and Mr. Wilson reported this matter to his insurer who retained Mr. Scott to assist with this motion. On December 2, 2016, Mr. Katzman served a Notice of Motion returnable May 11, 2017 for a status hearing. On February 27, 2017, the Amended Statement of Claim was amended by the Registrar pursuant to the Pleadings Order.

[32] On or about March 8, 2017, the Plaintiff served and filed its Trial Record, setting this matter down for trial.

[33] On May 11, 2017, I convened a telephone case conference call during which this motion was scheduled for September 14, 2017. The parties were not ready to proceed and this motion was subsequently adjourned in writing.

III. The Law and Analysis

[34] Rule 48.14 states as follows:

(1) Unless the court orders otherwise, the registrar shall dismiss an action for delay in either of the following circumstances, subject to subrules (4) to (8):

1. The action has not been set down for trial or terminated by any means by the later of the fifth anniversary of the commencement of the action and January 1, 2017.

(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.

(6) For the purposes of subrule (5), the hearing of the motion shall be convened as a status hearing.

(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.

[35] Rule 24.01 provides as follows:

(1) A defendant who is not in default under these rules or an order of the court may move to have an action dismissed for delay where the plaintiff has failed,

(c) to set the action down for trial within six months after the close of pleadings;

(2) The court shall, subject to subrule 24.02 (2), dismiss an action for delay if either of the circumstances described in paragraphs 1 and 2 of subrule 48.14 (1) applies to the action, unless the plaintiff demonstrates that dismissal of the action would be unjust.

[36] The parties agree that the applicable test on a motion for a status hearing under Rule 48.14 is set out in Faris v. Eftimovski, 2013 ONCA 360. At paragraph 32 of Faris, the Court of Appeal held that the test is two-fold and conjunctive such that the plaintiff bears the onus of demonstrating that: i.) there was an acceptable explanation for the delay; and ii.) that if the action were allowed to proceed, the defendant would suffer no non-compensable prejudice.

[37] As set out in Kara v. Arnold, 2014 ONCA 871 at paragraph 9, this motion involves a balance of competing values:

“Dismissals for delay involve a careful balance between two competing values. On the one hand, the Rules of Civil Procedure need to be enforced in a way that ensures timely and efficient justice, in the interests of plaintiffs, defendants, and society in general. On the other hand, society in general, and the parties, have an interest in the resolution of disputes on their merits and in the availability of flexibility to avoid potentially draconian results, by providing the opportunity for parties to offer a reasonable explanation for delay when it takes them beyond established timelines.”

[38] While the courts do not take a rigid or purely formalistic and mechanical approach to the application of timelines that would penalize parties for technical non-compliance and frustrate the fundamental goal of resolving disputes on their merits, Rule 48.14 “was designed to have some teeth” (Kara at para. 10). In doing so, the courts must apply a contextual approach weighing all of the relevant factors to determine the order which is just in the circumstances (Kara at paras. 12-14).

[39] In Goldman v. Pace, 2017 ONSC 1797, applying Faris, Master Muir held that, although the progress of the plaintiff’s 2008 action had not been ideal, the plaintiff had met his onus under Rule 48.14 by providing an acceptable explanation for the delay:

“The progress of this simplified procedure action has not been ideal. Far from it. It was started in 2008 and the Fasken defendants have yet to be examined for discovery. However, "ideal" is not the standard to be applied. A status hearing should not be a week by week or month by month analysis of the progress of an action. The court should look at the overall delay and determine whether the explanation provided by the plaintiff is acceptable.”(Goldman at para. 5)

[40] In Goldman, the delay resulted from numerous factors, including the plaintiff’s need to obtain an order for substituted service, an extended dispute between counsel regarding the production of documents, discussions regarding oral discovery dates and a number of booked and adjourned motions with materials exchanged. At paragraph 9, Master Muir states:

“The plaintiff has explained the delay by pointing to documentary evidence showing various efforts to deal with the defendant Pace, the production of documents and oral discovery. This is not a situation where an action has been ignored and forgotten. Much has been done. There is no evidence of an intention on the part of the plaintiff to abandon this action.”

[41] Master Muir further held that there was no non-compensable prejudice to the plaintiff given that the vast bulk of the relevant documents were produced and preserved.

[42] The parties also agree that the test on a status hearing under Rule 48.14(5) is substantially similar to the test on a motion for dismissal for delay under Rule 24.01 except that under Rule 48.14(5) the onus is on the Plaintiff and under Rule 24.01, Otis. The parties did not make any specific submissions under Rule 24.01.

[43] More specifically, the applicable test on a motion for dismissal for delay under Rule 24.01 is set out in the Court of Appeal’s decision in Langenecker v. Sauve 2011 ONCA 803. The test, case law and factors to be considered were recently summarized by Master Graham at paragraph 19 of Szpakowsky v. Tenenbaum, 2017 ONSC 18:

(1) To dismiss an action for delay, the court must be satisfied that the plaintiff's default has been intentional and contumelious, or that there has been inordinate and inexcusable delay for which the plaintiff or his lawyers are responsible resulting in a substantial risk that a fair trial will not be possible. (Armstrong v. McCall, 2006 CanLII 17248 (ON CA), [2006] O.J. No. 2055 (C.A.), Langenecker v. Sauve, 2011 ONCA 803, [2011] O.J. No. 5777 (C.A.), Francis v. Peel (Regional Municipality) Police, [2015] O.J. No. 5001 (SCJ))

(2) A dismissal on the basis of intentional and contumelious delay would be warranted in cases "in which the delay is caused by the intentional conduct of the plaintiff or his counsel that demonstrates a disdain or disrespect for the court process." (Langenecker, supra, para. 6)

(3) The plaintiff is responsible for moving the action along. (Wallace v. Crate's Marine Sales Ltd., 2014 ONCA 671, [2014] O.J. No. 4606 (C.A.) at para. 18)

(4) Any delay in the prosecution of an action requires an explanation. The onus rests with the plaintiff to show that the delay was not intentional. In the absence of an explanation from the plaintiff for the delay, it is to be presumed that the delay was intentional. (Berg v. Robbins, [2009] O.J. No. 6169 (Div. Ct.) at para. 13)

The onus is on the plaintiff to rebut the presumption of prejudice arising from the unexplained delay by showing that documents have been preserved, and that the issues in dispute do not require the recollection of witnesses, or that necessary witnesses are available with detailed recollection of events. (Berg, para. 14)

(5) The requirement that the delay be "inexcusable" requires a determination of the reasons for the delay and an assessment of whether those reasons afford an adequate explanation for the delay. . . [E]xplanations that are "reasonable and cogent" or "sensible and persuasive" will excuse the delay at least to the extent that an order dismissing the action would be inappropriate.

In assessing the explanations offered, the court will consider not only the credibility of those explanations and the explanations offered for individual parts of the delay, but also the overall delay and the effect of the explanations considered as a whole. (Langenecker, supra at paragraphs 9 and 10)

(6) An inordinate delay after the cause of action arose or after the passage of a limitation period gives rise to a presumption of prejudice in which case the defendant need not lead actual evidence of prejudice and the action will be dismissed for delay unless the plaintiff rebuts the presumption. The plaintiff's onus is to persuade the court with convincing evidence that there is no substantial risk that a fair trial is not possible. (Armstrong, supra and Woodheath Developments Ltd. v. Goldman, 2003 CanLII 46735 (ON SCDC), [2003] O.J. No. 3440)

(7) Courts may dismiss actions for delay even when the relevant rules do not mandate it. A court has inherent jurisdiction to control its own process, which includes the discretionary power to dismiss an action for delay. The power of a superior court to dismiss an action for delay is not limited to that conferred by any specific Rules of Civil Procedure, but also flows from the inherent power of the court to prevent an abuse of its own process. (Marché D'Alimentation Denis Thériault v. Giant Tiger Stores Ltd., 2007 ONCA 695 at paragraph 24, Wallace, supra at para. 21)

As stated in Wallace at para. 22 "There comes a time, in short, when enough is enough, and the civil justice system will no longer tolerate inordinate and inexplicable delay. A court may then eject the action as an exercise of its inherent jurisdiction, whether or not the relevant rules expressly mandate it."

[44] The Court of Appeal has also stated the preference that matters be resolved on their merits. At para. 34 of Giant Tiger Sharpe J.A. stated:

“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.”

[45] More recently, in H.B. Fuller Company et al. v. Rogers (Rogers Law Office), 2015 ONCA 173 at paragraph 27, the Court of Appeal further expanded on the preference for deciding matters on their merits in the context of cases where the delay has resulted from an error by counsel:

“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, 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" (citations omitted).”

[46] In 1196158 Ontario Inc. v. 6274013 Canada Ltd., 2012 ONCA 544, the Court of Appeal held that the focus of the inquiry on a Rule 48.14 status hearing is on the conduct of the plaintiff who, as the party who commenced the proceeding, bears primary responsibility for its progress. The conduct of a defendant may be relevant, especially where a plaintiff who tries to move an action along is faced with some resistance or tactics that are not consistent with a willingness to see a relatively straightforward case proceed expeditiously (1196158 Ontario Inc. at para. 29).

[47] In Giant Tiger and MDM Plastics Limited v. Vincor International Inc., 2015 ONCA 28, the Court of Appeal held that when an action has been disposed of in a party’s favour, even as a result of delay and not on the merits, the party’s entitlement to rely on the finality principle grows stronger as the years pass. Even where the party relying on the order could still defend itself despite the delay, at some point the interest in finality must trump the plaintiff’s request for an indulgence (see MDM Plastics, para. 27).

[48] I have also considered and applied Rule 1.04(1) which provides that the Rules of Civil Procedure shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits and Rule 1.04(1.1) which requires the court to make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.

[49] Under the first step in Faris, the Plaintiff is required to provide an acceptable explanation for the delay in moving this action forward. In considering this factor, the focus is on the conduct of the Plaintiff, who bears primary responsibility for moving this action forward.

[50] Otis submits that the Plaintiff has not provided an acceptable explanation for the delay. Otis asserts that there is 69 months (over 5.5 years) of total overall unexplained delay comprised of 28 months between July 22, 2008 and April 30, 2013 and 41 months from April 30, 2013 to November 15, 2016. Otis submits that more explanation is required than the Plaintiff’s bald statement in his affidavit that “it has always been and is my intention to proceed with this action”.

[51] While overall delay is a relevant factor, the court’s consideration of the relevant factors and application of a contextual approach is more complex and comprehensive than simply examining and adding up the periods of alleged unexplained delay. As in Goldman, the court is required to consider the overall delay in the context the explanation provided by the plaintiff including evidence of overall progress of the action and any intention to abandon the action.

[52] In this regard, the following is a summary of the steps which have been taken since the commencement of this action on July 22, 2008:

i.) subject to Otis amending its Statement of Defence and Crossclaim, pleadings are complete;

ii.) Affidavits of Documents have been exchanged and documentary production is complete subject to the production of additional documents arising from the pleadings amendments;

iii.) examinations for discovery have been completed and the Plaintiff has answered all undertakings, subject to any re-attendance by the Plaintiff on the amendments related to negligent design which are claims which will largely be based on expert evidence for which the Plaintiff will likely have little, if any, evidence;

iv.) mediation has been completed;

v.) defence medical examinations of the Plaintiff have been completed;

vi.) there have been 2 opposed motions, the Plaintiff’s successful pleadings motion and Otis’ successful undertakings motion with Otis’ summary judgment motion scheduled twice before being withdrawn without prejudice;

vii.) there has been regular contact between the Plaintiff’s counsel and Defendants’ counsel including the exchange of numerous settlement offers.

[53] In my view, as in Goldman, although the progress of this action has not been ideal or perfect, there has been activity and numerous steps taken to move it forward. Further, some of the delay in the present case can be attributed to motions, discussions, disputes and inquiries between the parties over numerous issues including documents, scheduling, discoveries and defence medicals. While there have been periods of extended delay, I reject Otis’ contention that all of the periods of delay it complains of are unexplained, particularly when considered in the larger context of the steps which have been taken and completed.

[54] In characterizing the delay and what it calls the Plaintiff’s “bald statement” of his intention to proceed with and not abandon this action, Otis relies on my decision in Williams Medical Technologies Inc. v. Source Medical Corp., 2017 ONSC 2645. In that case, no steps were taken in the action for approximately 10 years and 8 months during which there was no contact between the parties. The corporate plaintiff’s only explanation was a vague reference to a fee dispute with its counsel. As I stated at paragraph 31 of Williams Medical: “While Mr. Williams states in his affidavit that he “never intended to abandon this action” during the approximately 10-year period during which this action was essentially dormant, there is no evidence on the record to support this bald statement.” That is not the case here.

[55] The facts of the present case are distinguishable from Williams Medical in numerous material respects. In the current case, while there have been delays, unlike Williams Medical where nothing happened for over 10 years, there is documentary evidence of progress in moving this action forward. Further, in Williams Medical, the corporate plaintiff was advancing a commercial claim of over $15,000,000 which presumed a certain degree of sophistication on the part of the plaintiff and its principal. In the present case, the Plaintiff is an 85-year old individual with a personal injury claim which his lawyer and his lawyer’s agent have been responsible for advancing on his behalf.

[56] In my view, the most problematic delay for the Plaintiff to explain is the period after the mediation on April 30, 2013 until the commencement of this motion on December 2, 2016. As set out in the Wilson Affidavit, substantially all of this delay is attributable to the failure of Mr. Wilson and Mr. Katzman to take out the Pleadings Order and serve and file the Amended Statement of Claim which would have led to other steps being completed and this action being set down of this matter for trial before January 1, 2017. The uncontroverted evidence before me, which Otis elected not to test on cross-examination, is that the delay was caused by the inadvertence and oversight of Mr. Wilson and Mr. Katzman, specifically, the mistaken belief that the other was taking the necessary steps.

[57] Otis submits that Mr. Wilson’s explanation lacks cogency, particularly with respect to the additional year to take out the Pleadings Order after the 2.5 years it took to realize that it had not been done. While Mr.Wilson’s explanation is not ideal, consistent with the direction of the Court of Appeal, the court should not lay the blame or penalize the Plaintiff for this inadvertent, non-deliberate error of his counsel and his counsel’s agent. The uncontroverted evidence before me is that the Plaintiff intended to pursue his action, Mr. Wilson and Mr. Katzman continued to pursue it and in doing so, inadvertently and non-intentionally caused further delay to these proceedings. As the focus is on the Plaintiff’s conduct, I conclude on the evidence before me that there was no intention on the part of the Plaintiff to abandon this action and that it was his understanding that his counsel was continuing to pursue it.

[58] Considering all of the factors and circumstances above and applying the relevant contextual approach, I conclude that the Plaintiff has provided a reasonable explanation for the delay in moving this action forward.

[59] With respect to the second Faris factor, the Plaintiff must demonstrate that the Defendants would not suffer any actual prejudice that cannot be compensated for with a costs order as a result of the overall delay if this action is permitted to proceed. Generally, Otis claims that prejudice is presumed given the loss of institutional knowledge and the fading of memories over time (1196158 Ontario Inc. at para. 43). Specifically, Otis submits that actual prejudice would result from the fact that the incident took place over 11 years ago, Mr. McLeod is no longer employed by Otis and that some documents “may” be missing.

[60] In considering Otis’ submissions, I am mindful of the Court of Appeal’s comments at paragraph 76 of Carioca’s Import & Export Inc. v. Canadian Pacific Railway, 2015 ONCA 592:

“I do not accept that speculation that a case may depend in part on oral evidence, coupled with the assumption that witnesses' memories generally fade over time will, without more, prevent a plaintiff from satisfying the prejudice prong of the test. Counsel routinely address the reality of the passage of time in the litigation process by collecting and producing documents, undertaking oral examinations for discovery and taking witness statements. There are other methods under the rules to preserve evidence that may disappear or be lost before trial.”

[61] I am satisfied that the Plaintiff has demonstrated that Otis would not suffer any actual prejudice if this action proceeds. Otis has had notice of this action since December 3, 2007 and has obtained and preserved the maintenance records for the elevator in question which confirm that SMH had not notified Otis of any issues with the elevator prior to the incident. Otis has also preserved documents related to the modernization of the elevator in 2000 and has not provided any evidence of documents lost or destroyed as a result of the delay. In any event, Otis has an obligation to preserve documents and evidence while litigation is outstanding and appears to have done so.

[62] Further, even before the commencement of this action, the incident was investigated by Crawford and the Plaintiff underwent a medical examination and has subsequently undergone a defence medical examination. In addition, although Mr. McLeod has retired, he was examined for discovery, his transcript is available and there is no evidence that Otis has made any attempts to contact him further. Otis’ other key witness, Darren McConnell, the mechanic who serviced the elevator, still works for Otis. I have no evidence before as to any steps taken to preserve the evidence of Denise Lozan, the receptionist who took the Plaintiff’s initial report on the day of the incident. In my view, the combined effect of preserved documents, completed medical examinations, available witnesses and completed examinations for discovery leads to the conclusion that Otis would suffer no non-compensable prejudice.

[63] In the alternative, Otis submits that if the Plaintiff’s claim with respect to improper maintenance is permitted to proceed, the claim of negligent design should not. Otis asserts that this claim is not ready for trial and there is no evidence that SMH preserved any relevant documents regarding the Plaintiff’s negligent design claim, including the tender documents and that no documents or expert reports have been produced and no examinations for discovery have taken place with respect to this claim.

[64] While I agree with Otis that the negligent design claim is not ready for trial, this does not, on its own, constitute grounds to dismiss it. The negligent design claim is one which, if pursued by the Plaintiff, will largely involve expert evidence which can be exchanged and filed by the parties in accordance with the Rules prior to the pre-trial and trial and/or as they may agree. Given the documentation which has been preserved, I am not satisfied that the uncertainty surrounding the availability of the tender documents would cause Otis to suffer non-compensable prejudice. Further, any examinations for discovery on this issue should not be long or detailed, given the reliance on expert evidence.

[65] I further conclude that the finality principle does not apply in these circumstances given that this action was not dismissed or dormant for a sufficient period of time such that Otis can be said to have reasonably relied on it.

[66] Based on my review and consideration of the factors and circumstances above, I conclude that the Plaintiff has demonstrated that the Defendants will not suffer actual prejudice if the Dismissal Order is set aside. Consistent with the direction of the Court of Appeal, in the absence of such prejudice, and particularly where an error of counsel contributed significantly to the delay, an indulgence to permit the Plaintiff’s claim to be tried on its merits is preferred.

[67] I further conclude that to deprive the Plaintiff of the right to have his action heard on its merits in these circumstances would be also contrary to Rule 1.04. Specifically, it would not be just or proportionate for the Plaintiff to have this action dismissed where there has been progress, a reasonable explanation for the delay, the most significant periods of which were caused by the inadvertence of his counsel and in the absence of non-compensable prejudice.

[68] Having considered and weighed all of the relevant factors and applied a contextual approach, I conclude that the most just result in the circumstances is to grant the Plaintiff’s motion and allow his action to proceed.

[69] Given the overlap of the tests under Rules 48.14 and 24.01, the parties’ agreement regarding the tests and the fact they made no submissions, I will only briefly address Otis’ cross-motion.

[70] As set out in Langenecker and Szpakowsky, Otis bears the onus to demonstrate that the delay for which the Plaintiff or its counsel are responsible is inordinate and inexcusable and that it gives rise to a substantial risk that a fair trial will not be possible. Similar to my reasons above, particularly my conclusions that the Plaintiff has provided a reasonable explanation for the delay and that no non-compensable prejudice would result, I also conclude that Otis has not met its onus that the delay is inordinate and inexcusable or that there is a substantial risk that a fair trial is not possible. Similarly, I also conclude that the Plaintiff has rebutted any presumption of irremediable prejudice to Otis.

[71] I conclude based on the relevant factors and circumstances above that it is also just, reasonable and consistent with Rule 1.04 to dismiss Otis’ motion to dismiss this action for delay.

IV. Disposition

[72] Order to go granting the Plaintiff’s motion permitting this action to proceed. Otis’ motion to dismiss this action for delay is dismissed.

[73] If the parties are unable to agree on a timetable for this action, including a new deadline to set this matter down for trial, they may contact me through the Masters Administration Office to arrange for a telephone case conference. If the parties cannot agree on the costs of this motion, a process for filing written costs submissions can be spoken at that case conference or one may be arranged for that express purpose.

Released: March 8, 2018

Master M.P. McGraw