Court File and Parties
COURT FILE NO.: CV-11-15933
MOTION HEARD: 20180122
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: 6970001 CANADA INC. c.o.b. as ZAATAR & ZEIT, Plaintiff
-AND-
AVIVA INSURANCE COMPANY OF CANADA and ADT SECURITY SERVICES CANADA INC., Defendants
BEFORE: Master Lou Ann M. Pope
COUNSEL: David Silver, Koskie Minsky LLP, counsel for the plaintiff Email: dsilver@kmlaw.ca
Blaine Edson, counsel for the defendant, Aviva Insurance Company of Canada Email: Sonja.nuic@aviva.com
REASONS FOR DECISION
[1] The Defendant, Aviva Insurance Company of Canada (“Aviva”), brings this motion for an order dismissing this action on three grounds; namely, failure of the plaintiff to restore the action to the trial list pursuant to rule 48.14(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 195 (“Rules”), the plaintiff’s failure to comply with the undertakings and refusals order dated December 8, 2014 pursuant to rule 60.12, and for delay pursuant to rule 24.01(2).
Background
[2] This action arises out an alleged theft and vandalism incident that occurred on February 28, 2010.
[3] Between May 5, 2008 and February 28, 2010, the plaintiff carried on business as a restaurant from leased premises at 1129 Wyandotte Street East, Windsor, Ontario. Aviva issued a policy of insurance to the plaintiff which was effective from December 9, 2009 to December 9, 2010 with respect to the premises and the business which included coverage for damages arising from theft, including loss of profits.
[4] On February 28, 2010 the plaintiff reported to Aviva that the insured business had been burglarized. Aviva denied the plaintiff’s claim on the basis that the premises did not have or use an operating alarm system which was a condition of the policy.
[5] The plaintiff issued a statement of claim seeking damages for its contents which were damaged in the burglary and for its business losses suffered as a result of Aviva’s failure to provide coverage under the policy.
[6] The procedural steps in this action are as follows: (The items in italics are not steps in the action but are relied on by the plaintiff to explain delay and in defending this motion.)
February 8, 2011 - statement of claim issued
March 3, 2011 – notice of intent to defend filed
May 3, 2011 – statement of defence and crossclaim and jury notice filed
September 14, 2011 – notices of discontinuance of action and crossclaim filed as against defendant, ADT Security Services Canada Inc. (“ADT”)
July 9, 2012 - mediation held
August 20, 2012 - examinations for discovery of all parties held
March 4, 2013 – status notice-Form 48C.1 issued by registrar
June 10, 2013 - plaintiff filed trial record
May 23, 2014 – pre-trial conference – adjourned at Aviva’s request on consent
July 4, 2014 – pre-trial conference held – trial scheduled for week of April 20, 2015
November 24, 2014 – Aviva’s motion for security for costs and plaintiff’s undertakings and refusals
December 8, 2014 – Order of Thomas J. requiring plaintiff to answer undertakings within 30 days and dismissing security for costs motion
April 15, 2015 – Order of Campbell J. striking action from trial list, at plaintiff’s request, on consent, due to plaintiff’s counsel’s firm dissolving in December 2014, issues between plaintiff’s counsel and the Law Society of Upper Canada (“LSUC”), and Marusic Law being formed and taking over file in early January 2015
April 2015 – Marusic Law received landlord’s notice terminating office lease effective July 31, 2015
June 2015 – plaintiff’s letter request of non-parties regarding undertakings
June 26, 2015 – plaintiff answered some undertakings
Late July/early August 2015 – Marusic Law moved offices
September 2015 – plaintiff’s letter request for Windsor Police Service file
October 6, 2015 – plaintiff requests Aviva’s dates for a trial in 2016
Winter 2015-Spring 2016 – Marusic prepared for long trial and asked DeVuono to continue to assist as counsel
December 2015 – LSUC’s motion for interim order suspending Marusic’s license
December 21, 2015 – Plaintiff’s third request of Aviva for available trial dates in 2016; plaintiff made offer to settle; Aviva advised that its counsel would not be available for trial until the fall 2016
February 2016 – DeVuono left Marusic Law
April 8, 2016 – LSUC motion dismissed; LSUC appealed
May 11 - 31, 2016 – plaintiff requests response from Aviva regarding plaintiff’s prior offer to settle; Aviva advised that it did not accept the plaintiff’s offer
September 7, 2016 – Decision dated October 31, 2016 - LSUC successful on appeal; Marusic’s license suspended on interim basis
October 31, 2016 – Appeal decision stayed pending Marusic’s appeal to Divisional Court
December 5, 2016 – Divisional Court hearing of Marusic’s appeal
February 16, 2017 – Divisional Court Reasons – upheld decision to suspend Marusic’s license; Medaglia assumed carriage of plaintiff’s file
January 2017 – plaintiff made offer to settle and later requested Aviva’s response
February 21, 2017 – Aviva served offer to settle
April 28, 2017 – Aviva wrote to Superior Court Registrar, without notice to the plaintiff, enclosing a requisition seeking to have action dismissed as it had not been placed back on the trial list within two years of being struck off trial list on April 15, 2015 per Order of Campbell J.
May 2017 – Aviva withdrew offer to settle
May 25, 2017 – Registrar advised Aviva that it was unable to issue a dismissal order
July 7, 2017 – plaintiff contacted Aviva regarding prospects of resolving matter; Aviva advised of its intention to bring motion to dismiss the action for delay
July 10, 2017 – plaintiff’s counsel contacted trial coordinator to obtain available trial dates
July 25, 2017 – Medaglia advised Aviva’s counsel that she reported matter to LawPRO and her position regarding Campbell J.’s order
August 2, 2017 – Aviva served its Motion Record, Factum and Book of Authorities for this motion returnable August 15, 2017
August 30, 2017 – plaintiff sends letter requests to non-parties for their files regarding undertakings
September 11, 2017 – plaintiff’s counsel received response from non-party, Galaxy Alarm, that it refused to provide its file
October 11, 2017 – plaintiff’s counsel followed up with Quantum Tax regarding production of file
November 23, 2017 – plaintiff’s counsel received a copy of the General Occurrence Report for the alleged burglary
December 6, 2017 – plaintiff’s counsel followed up with Quantum Tax
January 22, 2018 – hearing of motion
Summary of Parties’ Positions
[7] Aviva asserts three grounds for this motion.
[8] Firstly, Aviva relies on rule 48.14(1) which provides that the registrar shall dismiss an action for delay if the action has not been set down for trial or terminated by the fifth anniversary of the commencement of the action or the action 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 January 1, 2017. This action was struck off the trial list by Order of Campbell J. on April 15, 2015 and it was not restored to a trial list by January 1, 2017, being the later of the second anniversary of being struck off on April 15, 2015 and January 1, 2017.
[9] The second ground relied on is rule 24.01(1)(e) which provides that a defendant may move to have an action dismissed for delay where the plaintiff has failed to move for leave to restore an action to a trial list that has been struck from the trial list, within 30 days after the action was struck off.
[10] The third ground relied on is rule 60.12 which provides that where a party fails to comply with an interlocutory order, the court may in addition to any other sanctions provided by the Rules, dismiss the party’s proceeding. Aviva asserts that the plaintiff has not complied with Thomas J.’s order dated December 8, 2014 which gave the plaintiff 30 days to comply with its undertakings.
[11] The plaintiff’s position is that Aviva is not entitled to move under rule 48.14(1) as that rule grants the registrar jurisdiction to dismiss actions for delay in prescribed circumstances without notice. The registrar denied Aviva’s request to dismiss for delay.
[12] In addition, it is the plaintiff’s position that Aviva cannot move under rule 24.01(1)(e) because it is in default having not answered its undertakings contrary to rule 31.07(1)(c), and the plaintiff was granted leave to restore the action to the trial list, without condition, on the very day it was originally struck from the trial list.
[13] Lastly, the plaintiff submits that if Aviva fails to persuade the court to dismiss this action on the stated grounds, even if the court considers whether to exercise its inherent jurisdiction to dismiss the action for delay, Aviva does not satisfy the stringent test and it would be inherently unjust to dismiss the action for delay on the facts.
Law
[14] The relevant provisions of the Rules are as follows:
48.14(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):
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.
The action was struck off a trial list and has not been restored to a trial list or otherwise terminated by any means by the later of the second anniversary of being struck off and January 1, 2017.
(None of subrules 48.14(4) to (8) apply herein.)
24.01(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,
(a) to serve the statement of claim on all the defendants within the prescribed time;
(b) to have noted in default any defendant who has failed to deliver a statement of defence, within thirty days after the default;
(c) to set the action down for trial within six months after the close of pleadings; or
(d) [Revoked, O.Reg. 533/95, s. 4(1)]
(e) to move for leave to restore to a trial list an action that has been struck off the trial list, within thirty days after the action was struck off.
24.01(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.
60.12 Where a party fails to comply with an interlocutory order, the court may in addition to any other sanction provided by these rules,
(a) stay the party’s proceeding;
(b) dismiss the party’s proceeding or strike out the party’s defence; or
(c) make such other order as is just.
Grounds for Relief - Rules 48.14(1) and 24.01
[15] I am satisfied that rule 48.14(1), alone, is not a proper ground to dismiss an action for delay. That rule provides that “[u]nless the court orders otherwise,” the registrar shall dismiss an action for delay where, under paragraph 2, the action was struck off a trial list and has not been restored to a trial list or otherwise terminated by any means by the later of the second anniversary of being struck off and January 1, 2017. Here, the registrar has not dismissed this action for delay under either paragraphs 1 or 2; therefore, there can be no appropriate relief sought by Aviva under this rule alone to dismiss for delay.
[16] However, Aviva relies also on rule 24.01(2) in conjunction with rule 48.14(1).
[17] As an aside, Aviva’s factum contains errors. Firstly, in its factum Aviva relies on rule 24.01(1); however, in oral submissions, its counsel relied on subrule 24.01(2). As such, there was no notice to the plaintiff that Aviva was relying on subrule 24.01(2); however, plaintiff’s counsel did not object to Aviva relying on subrule 24.01(2). Further, paragraph 15 of the factum fails to accurately state the provisions of rule 24.01(1) by omitting relevant language that 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 in the enumerated circumstances. Given my rulings below, the omission is not relevant; however, it has not been overlooked by me as it is improper and unethical to omit pertinent language of a statute.
[18] Subrule 24.01(2) grants the court discretion to 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. Rule 24.01(2) was added to the Rules effective April 1, 2015.
[19] In Marello v. Naccarato, 2017 ONSC 757, at paragraph 35, C.U.C. MacLeod J. commented on a series of rule amendments “which give tools to the parties and the court to enforce time limits and to create and enforce timetables.” He stated:
Rule 24 was amended to provide that if a defendant moves to dismiss an action for delay and more than five years have passed since the action was commenced, there is a presumption of prejudice to the defendant.
[20] The plaintiff submits that Aviva cannot rely on subrule 24.01(1) as it is in default under rule 37.07(1)(c) having not answered any of its undertakings. It is Aviva’s evidence that, in fact, its representative has not answered any of his undertakings. As such, I am satisfied that Aviva is prohibited from relying on subrule 24.01(1).
[21] In any event, it is my view, Aviva intended to rely on subrule 24.01(2) rather than 24.01(1) given its counsel’s oral submissions.
[22] Subrule 24.01(2) contains mandatory language that the court “shall” 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. However, it provides further that an action shall not be dismissed if the plaintiff demonstrates that dismissal of the action would be unjust.
[23] Firstly, the onus is on the defendant to demonstrate that either of the circumstances in paragraphs 1 and 2 of subrule 48.14(1) applies to this action.
[24] With respect to paragraph 1 of subrule 48.14(1), the plaintiff filed a Trial Record on May 30, 2013. This had the effect of setting the action down for trial as provided for in rule 48.02(1), which states:
48.02(1) Where an action is defended, a party who wishes to set it down for trial may do so by serving a trial record prepared in accordance with rule 48.03 on every party to the action or to a counterclaim or crossclaim in the action and on any third or subsequent party and forthwith filing the trial record with proof of service. (emphasis added)
[25] The fact that this action was struck off the trial list on April 15, 2015 does not change the fact that the action was set down for trial on May 30, 2013. The Rules make a distinction between setting an action down for trial and placing an action on a trial list. (See rules 48.02(1) and 48.06(1)(2)) Therefore, as the plaintiff set the action down for trial by January 1, 2017, being the later timeline to do so under paragraph 1 of subrule 48.14(1), I find that the circumstances described in paragraph 1 of subrule 48.14(1) do not apply to this action.
[26] With respect to paragraph 2 of subrule 48.14(1), Aviva must establish that this action was struck off the trial list and has not been restored to a trial list or otherwise terminated by any means by the later of the second anniversary of being struck off and January 1, 2017. The plaintiff submits that in his order of April 15, 2015, Campbell J., in striking the action from the trial list, also granted leave to restore the action to the trial list. Paragraphs 1 and 2 of Campbell J.’s order state:
THIS COURT ORDERS that [the] Trial scheduled to commence the week of April 20, 2015 is hereby adjourned and struck from the Trial list;
THIS COURT FURTHER ORDERS that leave is hereby granted to restore the action to the Trial list for a date to be fixed by Trial Coordination in accordance with the availability of counsel and the parties.
[27] I am in agreement with the plaintiff’s submission that paragraph 2 of Campbell J.’s order granted leave to restore this action to a trial list; however, the relevant fact is that the action was never restored to a trial list as required by paragraph 2 of Rule 48.14(1).
[28] It is the plaintiff’s evidence that in 2015 it made several requests of Aviva’s counsel for available trial dates but received no response. In addition, the plaintiff states that on July 20, 2017 its counsel contacted the trial coordinator to obtain available dates. However, it is clear from the evidence that the plaintiff took no further steps after 2015 to have this action restored to a trial list as it was required to do under paragraph 2 of subrule 48.14(1) by bringing a motion to do so if necessary.
[29] Therefore, I am satisfied that the circumstances of paragraph 2 of subrule 48.14(1) apply to this action as the action was struck from the trial list on April 15, 2015 and it was not restored to a trial list by April 15, 2017, being the later timeline to do so under paragraph 2.
[30] As Aviva has been successful in establishing that paragraph 2 of subrule 48.14(1) applies to this action, the onus now shifts to the plaintiff to demonstrate that dismissal of the action would be unjust as set out in rule 24.01(2).
[31] Aviva submits that the applicable test under rule 24.01 to dismiss an action for delay involves a consideration of four factors more commonly known as the Reid test as set down in Reid v. Dow Corning Corp. [2001] O.J. No. 2365 (Ont. S.C.J.), at para. 41. With respect, that is not the proper test on a motion to dismiss for delay under rule 24.01. The Reid factors as considered on a contextual basis in Scaini v. Prochnicki, 2005 19786 (ONSC) at paras. 4-6, aff’d in 2007 ONCA 63, 85 O.R. (3d) 179, apply to actions to set aside a registrar’s dismissal order.
[32] It is my view that the proper test on a motion brought by a defendant to dismiss an action for delay under rule 24.01 flows from the line of cases that start with Armstrong v. McCall 2006 17248 (ON CA), [2006] O.J. No. 2055, as cited by the plaintiff. The case law with respect to dismissal for delay was summarized by Master Graham in his recent decision in Szpakowsky v. Tenenbaum, 2017 ONSC 18, at para.19, as follows:
(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 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 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."
[33] I am satisfied that the plaintiff’s default was not intentional or contumelious. Simply put, there is no evidence whatsoever to support that contention.
[34] The court must consider whether there has been inordinate and inexcusable delay for which the plaintiff or its lawyers are responsible resulting in a substantial risk that a fair trial will not be possible.
[35] Upon a review of the steps in this action, it is noteworthy that all steps had been completed within just over two years from the statement of defence being delivered in May 2011 to June 2013 when the plaintiff filed the trial record. In my view, there had been no delay during that period. The pretrial conference was held in July 2014 and the action was scheduled for trial in April 2015.
[36] It is my view that the delay commenced in December 2014 when plaintiff’s counsel’s firm dissolved and Marusic Law was formed and took over carriage of this file in early January 2015. For over two years between December 2014 and February 2017 this action was delayed due to issues plaintiff’s counsel had with the LSUC. There were a few attempts during that time to move this action ahead including requests of Aviva’s counsel for available trial dates; however, plaintiff’s counsel took no concrete steps to restore this action to a trial list having received Mr. Black’s available trial dates on December 21, 2015. Finally, in February 2017 when the Divisional Court released its decision to uphold the decision to suspend Marusic’s license and when Medaglia assumed carriage of the file, it had been almost two years from the date the action was struck off the trial list on April 15, 2015. Starting in February 2017, still the plaintiff took no steps to restore the action to a trial list. While the plaintiff submits that its counsel requested available trial dates from Aviva’s counsel and contacted the trial coordinator in July 2017 to obtain available trial dates, in my view, these efforts were inadequate given the provisions of rule 48.14(1).
[37] For those reasons, I am satisfied there was inordinate and inexcusable delay for which plaintiff’s counsel was responsible. Having made that finding, the issue is whether the inordinate and inexcusable delay has resulted in substantial risk that a fair trial will not be possible. Here, the alleged vandalism occurred on February 28, 2010 and the action was commenced on February 8, 2011; however, by August 2, 2017 when Aviva served its motion record for this motion, the action was not restored to a trial list having been struck off the trial list on April 15, 2015. As such, six and one half years had transpired since the action was commenced to the time Aviva served this motion. Therefore, I am satisfied that there is a presumption of prejudice given the significant passage of the limitation period.
[38] Given the presumption of prejudice, the plaintiff has the onus to rebut the presumption by persuading the court with convincing evidence that there is no substantial risk that a fair trial is not possible.
[39] The plaintiff submits that Aviva consented to the plaintiff’s request for additional time to complete its undertakings pursuant to the Order dated December 8, 2014, and its undertakings were completed within nine and one half months after the 30-day deadline in the Order. This is contrary to Aviva’s evidence that as of July 31, 2017 when Ms. Nuic swore her affidavit, no answers to the outstanding undertakings had been provided. It is noteworthy; however, that when Aviva advised plaintiff’s counsel that it intended on bringing this motion, in August 2017 plaintiff’s counsel sent out multiple follow-up requests to non-parties for copies of their files. It is Ms. Medaglia’s evidence that on November 23, 2015, DeVuono received a copy of the General Occurrence Report for the burglary which satisfied refusal number 1 and undertakings 16 and 19. Therefore, it appears from the evidence that the plaintiff was still completing undertakings by late 2015 despite the 30-day timeline ordered by Thomas J. on December 8, 2014.
[40] The plaintiff submits further that there is no evidence of any prejudice to Aviva’s ability to have a fair trial particularly given Aviva’s consent to Campbell J.’s order of April 15, 2015 granting leave to restore this action to the trial list. The plaintiff contends that Aviva was put on early notice of the plaintiff’s claim and had a full opportunity to investigate the matter and obtain and preserve any relevant evidence. It is Ms. Medaglia’s evidence that all the parties to this action are available to testify at trial, that Ms. Zeidan, the plaintiff’s representative, advised her that she has a strong recollection of the events giving rise to this action, and that as of January 11, 2018 James Foley worked as an adjuster for Crawford Insurance Adjusters in St. Catherines, Ontario. Ms. Medaglia states further that this action is ready for trial as all documentary production has been exchanged, examinations for discovery completed, the discovery transcripts are available for trial, and the plaintiff has answered all undertakings satisfactorily.
[41] Despite the plaintiff’s submissions, Aviva pointed out that it learned for the first time in Ms. Medaglia’s affidavit sworn on January 12, 2018 that Quantum Tax, who the plaintiff believed had prepared the balance sheet for the company, had not done so and although Ms. Zeidan did not recall who prepared the balance sheet, she inquired of the company’s accountant to ask whether they prepared the balance sheet, or if they knew who did, but she had not received a response.
[42] Aviva submits further that it learned for the first time in Ms. Medaglia’s affidavit that Alarm Guard does not have a file in relation to this matter and that all of their documents were returned to ADT upon installation of the alarm system. However, Ms. Medaglia fails to provide any evidence with respect to ADT’s response to her letter of August 30, 2017 requesting a copy of their file.
[43] In addition, Aviva submits that it learned for the first time in Ms. Medaglia’s affidavit that she was advised by Galaxy Alarm that it refused to provide a copy of its file. Galaxy Alarm inspected the plaintiff’s premises after the alleged vandalism.
[44] I find that Ms. Medaglia’s evidence at paragraph 97 of her affidavit to the effect that Ms. Zeidan did not recall who prepared the balance sheet for the company contradicts her evidence in paragraph 100 that “Ms. Zeidan has advised me that she has a strong recollection of the events giving rise to this lawsuit.” Interestingly, despite that statement, Ms. Zeidan gives no such evidence in her affidavit sworn January 12, 2018 filed in response to this motion. Thus, it is reasonable to conclude that Ms. Zeidan’s memory of facts and events relating to the alleged vandalism and the plaintiff’s damages have faded.
[45] The plaintiff relies on periods of delay caused by Aviva to explain the delay in this action. However, I am not satisfied that any of the alleged periods of delay were the cause of the plaintiff failing to restore this action to a trial list in accordance with paragraph 2 of rule 48.14(1).
[46] For the above reasons, I find that contrary to the plaintiff’s assertions, not all relevant documents have been produced by the plaintiff, including Galaxy Alarm’s file which the plaintiff disclosed in Ms. Medaglia’s affidavit sworn on January 12, 2018 that it learned in September 2017 that Galaxy Alarm refused to produce its file. Further, the plaintiff adduced no evidence of any response from ADT to the plaintiff’s request for its file on August 30, 2017.
[47] Further, I accept that Ms. Zeidan will be a primary witness for the plaintiff at trial but that her memory of relevant facts with respect to the business loss issue have faded.
[48] In conclusion, the fact that all relevant documents have not been produced by the plaintiff, combined with the faded memory of one of the plaintiff’s primary witnesses leads me to an unavoidable conclusion that there is substantial risk that a fair trial is not possible. As such, I find that the plaintiff has failed to rebut the presumption of prejudice by failing to adduce convincing evidence that there is no substantial risk that a fair trial is not possible.
[49] Therefore, this action is hereby dismissed for delay pursuant to rule 24.01(2).
[50] Given my reasons above for dismissing this action for delay, it is not necessary to address the alternate grounds of rule 60.12 relied on by Aviva. However, having said that, it is clear on the evidentiary record and for the above reasons that the plaintiff has not complied with the terms of Thomas J.’s order of December 8, 2014 regarding answers to the plaintiff’s undertakings.
Costs
[51] Aviva seeks costs of this motion only at the partial indemnity rate of $4,814 inclusive of fees, taxes and disbursements. In my view the amount sought is reasonable given that this was a special motion in which factums and briefs of authorities were required. Therefore, Aviva shall be entitled to costs of this motion fixed in the amount of $4,814, payable within 30 days.
Original stamped “Master Pope”
Master Lou Ann M. Pope
Released: May 9, 2018