COURT FILE NO.: CV-11-420409 DATE: 2018-05-10

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Sonia Chisholm, Plaintiff/Moving Party AND: Bell Canada, Defendant/Respondent

BEFORE: Justice Heather McArthur

COUNSEL: T. Nansiri, Counsel for the Plaintiff/Moving Party L. Alleyne, Counsel for the Defendant/Respondent

HEARD: April 18, 2018

ENDORSEMENT

Introduction

[1] Over seven years ago, Sonia Chisholm started an action against Bell Canada. Although Bell received the Statement of Claim, it inadvertently failed to file a Statement of Defence. Ms. Chisholm sought a Requisition for Default. The Registrar denied the request, directing Ms. Chisholm to bring a motion before a judge. She failed to do so. Nor did she take any other steps in the action. Ultimately, the claim was dismissed as abandoned.

[2] Ms. Chisholm now brings a motion asking to reinstate the action. If successful, she asks for a default judgment against Bell.

[3] For the reasons that follow, I have determined that the motion must be dismissed. I propose to briefly outline the factual background. I will then turn to my analysis and explain why I have concluded that Ms. Chisholm’s action should not be reinstated.

The Factual Background

[4] Ms. Chisholm brought an action against Bell in February 2011. Bell had refused to provide telephone and television services to Ms. Chisholm because, they said, she owed them a significant amount of money. Ms. Chisholm claimed that Bell was obligated to provide the services. She sought damages of $4 million, citing duress and missed business opportunities as a result of Bell’s alleged breach of contract in failing to deliver telephone services.

[5] Ms. Chisholm attempted to serve her claim by leaving a copy of the claim with an employee at a Bell retail store in Markham, and by mailing a copy to a P.O Box address in Montreal. Bell’s legal department received the claim in the week of March 14, 2011. Bell investigated the claim and prepared a defence. Through inadvertence, however, a defence was never filed.

[6] On May 26, 2011, Ms. Chisholm sought a Requisition for Default. The request was denied on June 7, 2011. The Registrar denied the request and directed Ms. Chisholm to bring a motion before a judge.

[7] Ms. Chisholm failed to bring a motion before a judge. Moreover, she took no further steps in the action. On August 18, 2011, the Registrar issued a notice advising that the action would be dismissed as abandoned unless, within 45 days of the date of the notice, a final order was obtained, a defence was filed, or the matter was set down for trial. Ms. Chisolm did nothing in response to the notice and the action was dismissed on October 12, 2011.

[8] Ms. Chisholm says that the notice was not delivered to her. She also says that at the time, she was engrossed in two separate family-law related litigation matters. The final one concluded around January 2018. At that point, Ms. Chisholm says that she immediately attempted to reinstate this action.

Analysis

[9] On a motion to set aside a Registrar’s order dismissing an action for delay, the court should consider four factors: 1) the explanation for the delay in the litigation; 2) any inadvertence in missing the deadline; 3) whether the motion to set aside is brought promptly; and 4) any prejudice to the defendant: Reid v. Dow Corning Corp., [2001] O.J. No. 2365 (S.C.), at para 41; rev’d on other grounds, [2002] O.J. No. 3414 (Div.Ct.). I will consider each factor in turn.

1) The Explanation for the Delay in the Litigation

[10] The law is clear that Ms. Chisholm is required to adequately explain the delay in the progress of the litigation. She must satisfy the court that steps were being taken to advance the litigation, and if no steps were taken, to explain why: Reid v. Dow, at para. 41. The requirement that there be an explanation for the litigation delay “ties into a dominant theme in modern civil procedure: the discouragement of delay and the enhancement of an active judicial role to ensure timely justice.”: Marché D’Alimentation Denis Thériault Ltée v. Giant Tiger Stores Ltd., 2007 ONCA 695, [2007] O.J. No. 3872 (C.A.), at para. 23.

[11] Ms. Chisholm submits that she failed to take steps in her action because she was occupied as a self-represented litigant in two family-law related matters. When the final one concluded in January 2018, she was finally able to turn her attention to the present action.

[12] In my view Ms. Chisholm’s explanation does not adequately explain the significant delay in this case. While the last family law matter ended in January of this year, her other matter concluded in May 2016. Ms. Chisholm failed to explain why she did not turn her attention to the present matter at that time. It seems that Ms. Chisholm made a deliberate decision not to focus on, or advance, this action. In my view, her explanation for the delay does not assist her in her motion to reinstate the action.

2) Any Inadvertence in Missing the Deadline

[13] Ms. Chisholm is required to lead satisfactory evidence to explain that she always intended to act within the appropriate time limit, but failed to do so through inadvertence. She argues that her failure to act was inadvertent, as she never received the notice telling her that her action was to be dismissed for delay. I have difficulty with this submission. Even if I accept that she did not receive the notice, as of June 2011 she knew that she would not be able to pursue default judgment without bringing a motion. The Registrar directed Ms. Chisholm to bring a motion. Moreover, Rule 19.04(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, makes it clear that when a Registrar declines to sign a default judgment, the plaintiff can bring a motion for default judgment. In my view, Ms. Chisholm then did not inadvertently fail to bring the motion; instead, she chose to focus her attention on other court matters. Years went by without Ms. Chisholm taking any steps in her action. The elapsed time suggests a deliberate intention not to advance the litigation, rather than inadvertence.

3) Promptness of the Motion to Reinstate

[14] Ms. Chisholm says that she did not learn that her action had been dismissed until January 2018. I find that somewhat difficult to accept. The notice of abandonment was sent to her address; there is no suggestion that she moved. That said, I am prepared to accept for the purposes of this motion that she did not receive notice until that time. She has moved promptly since January. But in my view, this factor only minimally assists Ms. Chisholm in her motion to reinstate her action. Ms. Chisholm only discovered that her action had been abandoned when she finally took steps to deal with the matter, some six years and three months after the action was dismissed for delay.

[15] While she acted promptly upon learning of the dismissal, her failure to make any inquiries into the status of her action for over six years must be considered. The reason she did not learn that the matter had been dismissed for so many years was because she chose not to make inquiries or take any steps in her matter. In my view, a party can’t hide their head in the sand for an inordinate period of time, and then expect to be seen as moving promptly once they finally decide to take their head out of the sand to assess the legal landscape. Thus, while Ms. Chisholm did move quickly after learning about the dismissal of her action, that must be considered in light of the fact that much of the delay in learning about the dismissal arose because of her inaction.

4) Prejudice to the Defendant

[16] Ms. Chisholm must convince the court that Bell has not suffered any significant prejudice in presenting its case as a result of her delay. Bell points out that the allegations in the claim Ms. Chisholm seeks to reinstate date back well over seven years, and long past the expiration of the applicable two year limitation period. Bell also notes that even under the new Rule 41.18, more than five years have expired since the Statement of Claim was filed.

[17] Finality is a central principle in the administration of justice. Bell argues that the significant amount of time that has elapsed since Ms. Chisholm issued her claim prejudices Bell’s interest in finality. I agree. As Sharpe J.A. explained in Marché D’Alimentation v. Giant Tiger Stores, at para. 38:

When an action has been disposed of in favour of a party, that party’s entitlement to rely on the finality principle grows stronger as the years pass. Even when the order dismissing the action was made for delay or default and not on the merits, and even when the party relying on the order could still defend itself despite the delay, it seems to me that at some point the interest in finality must trump the opposite party’s plea for an indulgence.

Conclusion

[18] The delay in this matter is inordinate. Ms. Chisholm failed to provide an adequate explanation for the delay. While she claimed to be occupied with two other court matters, she provided no explanation for why she did not turn to this action in May 2016, when one of those other matters concluded. Further, the delay stems not from inadvertence, but from the choice that Ms. Chisholm made to ignore this action in favour of other litigation. While she moved promptly to reinstate once she learned the action had been dismissed, that must be assessed in light of the fact that she failed to make any inquiries about her matter after her request for requisition for default was denied. To reinstate the action at this point, more than six and a half years after it was dismissed, would undermine the finality principle.

[19] Ms. Chisholm’s motion to reinstate her action is dismissed.

Costs

[20] As the successful party in this motion, Bell would be entitled to costs. Bell, however, has advised that, in the circumstances, it will not be seeking costs. As a result, Ms. Chisholm will not be required to pay costs. I commend Bell for its very fair position on costs.

Justice Heather McArthur

Date: May 10, 2018