COURT FILE NO.: CV-12-462416

DATE: 20180312

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Delio Da Silva aka Delio Brito, Plaintiff

AND:

Maria Da Conceiao Da Silva aka Maria Da Conceicao, Defendant

BEFORE: Master P.T. Sugunasiri

COUNSEL: Bufton, M., Counsel, for the Plaintiff/Moving Party

Miculinic, M., Counsel, for the Defendant/Responding Party

HEARD: March 12, 2018

Reasons for Decision

Overview:

[1] Family disputes can be the most difficult because of the inherently emotional component of the action. This action is unfortunately no different. The Plaintiff claims damages in breach of contract/unjust enrichment against his 71 year-old mother who resides in a house that he claims he built and has a beneficial or other interest in. His mother vigorously opposes the action alleging that contractors built the house while he continued his job as a tow truck driver.

[2] The action was commenced on August 29, 2012. The construction of the house was completed in or around 1998. The pleadings allege that Delio lived in the house as a tenant. He then lived there with his wife and daughter until August of 2012 when his mother alleges she could no longer withstand the stress of her strained relationship with him. Among other things, she alleges that he repeatedly threatened her and was emotionally abusive when she refused to mortgage or sell the property to give him an early inheritance. She denies he has an equitable interest in the property.

[3] Further to an Order made by Justice Dow, Delio’s action was subject to administrative dismissal on February 3, 2018. He seeks to extend the time to set this matter down for trial and applies pursuant or Rule 48.14(5), (6) and (7). Maria opposes his request on the basis that the delay has not been adequately explained and that there is prejudice to her and the fair adjudication of the action.

[4] Whomever the victor, neither party wins. Both will suffer an emotional price that can never be compensated. However I must apply the law in determining if this matter should proceed. In doing so, I conclude that this action should proceed and adopt the timeline that the parties have jointly proposed for the remaining steps of this action. I briefly set out my reasons below.

The Law:

[5] Where a plaintiff seeks to avoid administrative dismissal and brings a motion to the Court pursuant to Rule 48.14(5), the Court is to convene the motion as a contested status hearing.

[6] The onus is on Delio to provide an acceptable explanation for his delay in prosecuting the action and that if the action were allowed to proceed, that the defendant would suffer no non-compensable prejudice (Faris v. Eftimovski, 2013 ONCA 360). See also Cedrom-Sni Inc. v Meltwater Holding, 2017 ONSC 3387 at para. 6 (“Cedrom”). Other guiding principles from Cedrom in applying this test are that:

a. The test is conjunctive, and not disjunctive;

b. the responsibility of moving the action along lies with the Plaintiff although litigation in its current form does not allow a defendant to lie in the weeds;

c. The possible dismissal for delay involves a careful balancing between the interests of the parties and society in achieving timely and efficient justice, and the resolution of disputes on their merits;

d. The prejudice at issue relates to the defendant’s ability to defend the action as a result of the plaintiff’s delay, not as a result of the sheer passage of time; and

e. The defendant’s lack of display of any sense of urgency undercuts any claim of actual prejudice.

[7] I also accept that there is case law arising from our Court of Appeal which states that a judicial officer presiding over a status hearing is not to aim to fix a tardy action but to dismiss it unless there is cogent evidence on the record establishing a reason not to. (See Wellwood v. Ontario Provincial Police (2010), 2010 ONCA 386, 102 O.R. (3d) 555 CA)).

Finally, as noted by our Court time and time again, the Court’s overall approach in deciding whether or not to allow an action to continue pursuant to Rule 48 is to consider what is just in the overall circumstances of the case. As Master Dash states in Tri-Peak Holdings Inc. v. Metroplex Developments, 2012 ONSC 6234 at para. 12, “the plaintiff need not rigidly satisfy both aspects of the test” and that “[t]here will be some cases when a plaintiff can show cause that on the whole, it would be unfair for the action to be dismissed…”

The Record:

[8] According to Delio’s uncontroverted evidence, the action was commenced in August of 2012 when we has asked by his mother to move out of the house. He received his mother’s defence and served his reply on or about December 17, 2012. In 2013, he attests that correspondence was exchanged and mediation was discussed but no affidavits of documents were exchanged and no discoveries were scheduled. His mother agrees that no formal steps were taken in 2013 but makes no mention as to whether or not correspondence was exchanged or mediation discussed. She makes a blanket statement that her lawyer advised that Delio did nothing after the exchange of pleadings to “move the matter to trial.” Neither affidavit is particularly detailed nor contain much by way of supporting documentation. However, I prefer Delio’s first hand evidence on what transpired in 2013 and accept that there was some activity in advancing the action.

[9] Between 2014 and 2016, Delio claims that he suffered a series of financial setbacks and a medical issue. He attests that this stopped him from advancing his case. He details these setbacks and issues in his affidavit. Maria did not cross-examine on his affidavit nor provided any opposing evidence. I have no basis to disbelieve Delio.

[10] In October of 2016 Delio’s counsel, Mr. Bufton, informed him that he was leaving the firm and that his case would be administratively dismissed on August 12, 2017 if no steps were taken to move the matter along. Delio then received a letter from the principal of the firm, Mr. Rendeiro, indicating that he was now counsel, that he was reviewing the file and would contact Delio in due course.

[11] Delio then states that he made several calls to Mr. Rendeiro and was assured on or around November 22, 2016 that his action was being taken care of.

[12] On May 12, 2017, Delio spoke to Mr. Rendeiro and received a letter from him indicating that he was no longer able to represent him. Mr. Rendeiro suggested contacting his former employee Mr. Bufton to resume carriage of his file or recommended other counsel.

[13] On August 1, 2017, Mr. Rendeiro moved before Justice Dow to be removed as solicitor of record. The matter appears to have been adjourned to a Master but Justice Dow granted Delio an extension of time to set the matter down to February 2, 2018.

[14] When the matter returned before a Master in August, Delio was unavailable and sought an adjournment. On October 24, 2017, he delivered a Notice of Intention to Act in Person.

[15] On or about October 20, 2017 Maria retained current counsel. At some point at the end of 2017 or beginning of 2018, Delio retained Mr. Bufton.

Analysis:

Has Delio provided an adequate explanation for the delay in prosecuting his action?

[16] In my view, yes. While I agree with Maria that the explanation is far from robust, it is certainly within the range of acceptable explanations. In a nutshell, he explains the delays by pointing to his personal difficulties and then difficulties in maintaining and then retaining counsel.

[17] As held by Master Glustein (as he then was) in 2046085 Ontario Inc. v. Raby, 2014 ONSC 774 at para. 6, what is “acceptable” turns on the facts of the case. An explanation that is adequate or passable ought to suffice. I adopt my colleague’s approach. In the present case, Delio’s explanation is passable, as was a similar explanation in 3 Dogs Real Estate Corporation v. XCG Consultants Limited, 2014 ONSC 2251.

Has Delio demonstrated that Maria does not suffer non-compensable prejudice as a result of his delay?

[18] In meeting this part of the test, Delio must convince the court that his mother has not demonstrated any significant prejudice in presenting her case at trial as a result of his delay. In that regard, a plaintiff cannot be expected to speculate about prejudice to the defendant. As Laskin J.A. noted in Chiarelli v. Wiens, 2000 CanLII 3904 (ON CA), 2000 CarswellOnt 280 at para. 14:

Although the onus remains on the plaintiffs to show that the defendant will not be prejudiced by an extension, in the face of such a general allegation, the plaintiffs cannot be expected to speculate on what witnesses or records might be relevant to the defence and then attempt to show that these witnesses and records are still available or that their unavailability will not cause prejudice. It seems to me that if the defence is seriously claiming that it will be prejudiced by an extension it has at least an evidentiary obligation to provide some details. The defence did not do that in this case.

[19] While Justice Laskin’s comments are within the context of a plaintiff seeking an extension of time to serve a statement of claim, they apply equally here and have been so adopted by this Court in 3 Dogs Real Estate Corporation v. XCG Consultants Limited, supra, and Kerr v. CIBC World Markets, 2013 ONSC 7685.

[20] I am mindful that the sheer passage of time amounts to some non-compensable prejudice, but Maria has not provided any evidence of actual prejudice despite filing a responding affidavit. One would think I might have evidence that she can no longer reach the contractors who worked on her house, nor has the paperwork that might have supported her defence that it was not Delio who did the work. While counsel made these submissions in Court, the issue is too material to accept counsel’s word in the absence of affidavit evidence from the Defendant. I find it telling that Maria has provided no evidence of prejudice.

[21] I also take into consideration the fact that the Defendant did nothing to move the matter along after pleadings were exchanged. Prior to the rule reforms in 2010, it may have been acceptable for defendants to lie in the weeds and complain of delay later. However, in the new era of litigation all parties are to take steps to ensure the efficient and least costly adjudication of cases (see Cedrom, supra at para. 6).

[22] I am satisfied that Delio has met this part of the test. There appears to be no non-compensable prejudice flowing to Maria as a result of the delay.

Conclusion:

[23] Given the foregoing, I grant Delio one final opportunity to move this matter along. While this is the first formal status hearing for this action, Justice Dow already extended the set down date once, and the events in question date back to 1998. Time is of the essence. I am also concerned about Maria’s age and ability to withstanding protracted litigation. The parties have agreed to a timeline which I make peremptory on Delio. If Delio fails to meet these court-ordered deadlines, Maria may move to dismiss the action without notice. Motion allowed. I have signed the draft order provided by counsel and it is ready for pick up.

Costs:

[24] The Plaintiff has been successful and would normally be entitled to costs. Plaintiff’s counsel candidly submitted, however, that the Plaintiff is seeking an indulgence of the Court and does not seek costs. I award $2500 in costs to the Defendant in having to respond to this motion due to the Plaintiff’s lack of diligence in prosecuting this action. Her opposition to the motion and the need for a status hearing was reasonable. Costs are payable to the Defendant within 30 days from the date of these reasons.

Original signed

Master P.T. Sugunasiri

Date: March 15, 2018