Court File and Parties

COURT FILE NO.: CV-13-471873 DATE: 20180621

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: SOHAN SINGH, Plaintiff AND: STEPHEN DENNIS JAMES BRAITHWAITE, Defendant

BEFORE: Justice Glustein

COUNSEL: Patrick Di Monte, for the Plaintiff Brian A. Pickard, for the Defendant

HEARD: June 12, 2018

REASONS FOR DECISION

Nature of motion

[1] The defendant, Stephen Braithwaite (“Braithwaite”), brings a motion to dismiss the action (the “Braithwaite Action”) brought by the plaintiff, Sohan Singh (“Singh”), on the following grounds:

(i) Under Rule 24.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) and s. 106 of the Courts of Justice Act, R.S.O. 1990, c. C. 43, on the basis of delay, and

(ii) Under Rule 20, for summary judgment on the basis that:

(a) the action is statute-barred under s. 5 of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B (the “Limitations Act, 2002”), and

(b) Singh led no evidence to satisfy the court that he suffered a permanent serious impairment of an important physical, mental or psychological function, and, as such, did not meet the threshold to establish non-pecuniary damages under s. 267.5(5) of the Insurance Act, R.S.O. 1990, c. I. 8 (the “Insurance Act”).[^1]

[2] For the reasons that follow, I dismiss the action for delay. Consequently, I do not address the other arguments relied upon by Braithwaite.

Facts

[3] The Braithwaite Action is a claim by Singh against Braithwaite for Braithwaite’s alleged negligence as Singh’s solicitor in prosecuting Singh’s motor vehicle action (the “MVA Action”).

[4] Consequently, I review below the relevant facts about (i) the MVA Action, (ii) the delay in the Braithwaite Action, and (iii) missing evidence and witnesses.

(a) The MVA Action

[5] The relevant facts of the MVA Action are:

(i) The MVA Action related to two accidents. Singh alleged that (a) the first accident occurred on January 16, 2001, and (b) a second accident occurred on August 16, 2001. Singh issued the claim in the MVA Action on or about January 8, 2003;

(ii) Singh named his automobile insurer, Wawanesa Mutual Insurance Company (“Wawanesa”), as a defendant in the MVA Action. Singh alleged that Wawanesa refused to pay him accident benefits, including income replacement benefits;

(iii) Braithwaite was not Singh’s counsel at the outset of the MVA Action;

(iv) The defendants, including Wawanesa, defended the MVA Action and it proceeded to examinations for discovery in June 2004;

(v) Singh did not answer his undertakings from his first examination for discovery and did not attend the continued examination for discovery scheduled for August 2004;

(vi) In December 2004, Singh retained Braithwaite;

(vii) Wawanesa advised Braithwaite that:

(a) Wawanesa intended to sue Singh to recover money that it had paid for income replacement benefits, on the basis of fraud;

(b) Wawanesa paid those benefits on the basis of Singh’s claim that he had a contract of employment with a company called Prime Furniture Warehouse (“Prime Furniture”), purportedly entered into a few weeks before the accident; and

(c) Wawanesa claimed that Prime Furniture never existed and that the letter offering Singh employment was a fraud;

(viii) As a result of Singh’s failure to (a) appear at the continued examination for discovery and (b) answer his undertakings, the defendants brought motions to dismiss the MVA Action;

(ix) Singh filed responding materials to the dismissal motion but did not attend his scheduled cross-examination on his affidavit in response to the defendants’ motions;

(x) On January 24, 2006, Justice Jenkins heard the motions and dismissed the MVA Action (the “Dismissal Order”). Justice Jenkins held that Singh had ignored court orders, swore a false affidavit to mislead the court, and ignored his responsibilities as a litigant;

(xi) On February 20, 2006, Braithwaite filed a notice of appeal of the Dismissal Order;

(xii) The appeal was not perfected and was dismissed as abandoned on April 16, 2007;

(xiii) Singh retained new counsel (his current litigation counsel in the Braithwaite Action) on or about April 25, 2007;

(xiv) Braithwaite scheduled a motion to set aside the dismissal of the appeal as abandoned, which was to be heard on July 5, 2007. However, Braithwaite did not attend at the motion, since (a) he concluded that there was no chance of success on the appeal; (b) defence counsel was unwilling to make any offer to settle the MVA Action; and (c) Braithwaite believed that proceeding with a meritless appeal would have exposed Singh to further significant costs; and

(xv) Singh knew that the motion to set aside the dismissal of the appeal was scheduled to be heard on July 5, 2007. However, Singh asserts that he “assumed that [Braithwaite] was going to appear on July 5, 2007”, and after “I did not hear anything between July 2007 and January 2008”, Singh contacted his new litigation counsel who then followed up with Braithwaite.

(b) The Braithwaite Action

[6] The relevant facts with respect to the issue of delay in the Braithwaite Action are as follows:

(i) Singh issued the claim in the Braithwaite Action on August 27, 2009.[^2] Singh alleged that Braithwaite was negligent and as a result (a) Singh lost his action to recover damages for personal injury because his claim was dismissed and (b) the motion to perfect the appeal or extend time to perfect the appeal was lost because Braithwaite neglected to appear at the Court of Appeal;

(ii) Braithwaite served his statement of defence in June 2010;

(iii) Braithwaite’s counsel sent several letters in August 2010 requesting dates for examinations for discovery. He received no response;

(iv) Braithwaite’s counsel then sent a further letter on November 12, 2010 unilaterally scheduling the discoveries;

(v) Singh was examined for discovery on March 4, 2011, at which he (a) provided 14 undertakings and (b) also undertook to provide a further and better affidavit of documents within 60 days;

(vi) On July 11, 2011, Singh’s lawyer wrote to Braithwaite’s lawyer to confirm availability for mediation in February or March 2012;

(vii) On August 30, 2011, Braithwaite’s counsel wrote to Singh’s counsel to request that Singh (a) answer his undertakings and (b) produce a further and better affidavit of documents;

(viii) On September 19, 2012, Braithwaite’s counsel wrote to Singh’s counsel to advise that he would bring a motion to dismiss Singh’s claim on several grounds, including the failure to both answer undertakings and provide a further and better affidavit of documents;

(ix) On November 13, 2012, Singh’s counsel provided answers to two undertakings and attached some request letters which he had sent;

(x) On December 10, 2012, Braithwaite’s counsel sent another copy of the undertakings chart to Singh’s counsel and advised him that many of the undertakings had still not been answered;

(xi) The action was set down for trial in Newmarket, but it was transferred to Toronto on consent on December 11, 2012 because the court held that there was no jurisdiction in Newmarket;

(xii) After the action was transferred to Toronto, it was administratively dismissed as abandoned on January 16, 2013, but that was done in error and was immediately corrected by Singh’s counsel through the court office;

(xiii) On March 15, 2013, Singh’s counsel forwarded Canada Revenue Agency (“CRA”) printouts of Singh’s “Income Tax Return Information” to Braithwaite’s counsel. That information was provided in response to an undertaking to “provide the names and addresses of any companies Sohan Singh has worked for, along with the names of the persons he worked for at each company”;

(xiv) On April 12, 2013, Braithwaite’s lawyer wrote to Singh’s counsel and advised him that the CRA printouts Singh provided were not responsive to the undertaking.[^3] Braithwaite also asked for the names, contact information, and substance of the evidence of the witnesses Singh intended to call at trial;

(xv) On May 1, 2013, Singh’s counsel wrote to Braithwaite’s counsel noting that he had sent a settlement offer in 2011 and in 2012. Singh’s counsel stated that “We renew such offer of settlement”, but that if no settlement could be reached, “we need to move forward with a pre-trial”;

(xvi) On November 4, 2013, Singh’s counsel wrote to Braithwaite’s counsel and stated that Singh “continues to be interested in settlement”, but “[i]f that is not going to happen, then I would like to set this matter down for trial”;

(xvii) On February 25, 2014, Singh’s counsel wrote to Braithwaite’s counsel and advised that if the matter could not be settled, “I will have to roll up my sleeves and get the file in shape”;

(xviii) On May 23, 2014, Singh’s lawyer wrote to Braithwaite’s lawyer and advised that “I believe we have answered all undertakings. We shall set the matter down for trial”;

(xix) On May 29, 2014, Braithwaite’s counsel wrote to Singh’s counsel and advised that “the undertakings are far from fulfilled” and enclosed an updated undertakings chart detailing the outstanding items;

(xx) On April 7, 2016, Singh’s counsel wrote to Braithwaite’s counsel. He stated that “I need to expedite this matter” and requested scheduling of mediation since it was mandatory for Toronto actions;

(xxi) The next day (on April 8, 2016), Braithwaite’s counsel wrote to Singh’s counsel and responded that Braithwaite would not attend a mediation until the undertakings were answered. With the letter, Braithwaite’s counsel enclosed a chart of unanswered undertakings;

(xxii) On November 21, 2016, Singh’s counsel wrote to Braithwaite’s counsel and stated that “My recollection is that on consent we had agreed that the matter should be taken off the trial list as it was not trial ready” and that a timetable had to be put into place before December 1, 2016 “lest the action risks being dismissed”. In his proposed timetable, Singh’s counsel set a deadline of November 30, 2016 for Singh to answer undertakings and deliver a supplementary affidavit of documents;

(xxiii) On November 25, 2016,[^4] Singh purported to answer the bulk of his outstanding undertakings;

(xxiv) On June 21, 2017, Master Graham heard Singh’s motion to extend the deadline to set the action down for trial. On consent, Master Graham ordered (a) the date for the action to be set down for trial be extended to January 31, 2018, (b) outstanding undertakings be answered by July 28, 2017, and (c) mediation be conducted by November 30, 2017. The order was made without prejudice to “any motion by the defendant to dismiss this action for delay”;

(xxv) The parties then attended at mediation with the same mediator who had been agreed to by the parties in 2011;

(xxvi) As of January 25, 2018,[^5] undertakings remained outstanding with respect to (a) whether Singh’s insurer had contributed to the payment on his tort claims and the particulars of any such payments, and (b) a complete breakdown of all accident benefits received by Singh; and

(xxvii) The present motion was scheduled in Civil Practice Court as Braithwaite also sought to move to dismiss the Braithwaite Action by way of summary judgment on both the limitations and threshold issue.

(c) Missing evidence and witnesses

[7] Braithwaite filed uncontested affidavits from Murtha about the following evidence and witnesses not available for trial:

(i) The file of defence counsel in the MVA Action, Mr. Zoran Samac (“Samac”) was “destroyed in the summer of 2016”;

(ii) Prime Furniture, the purported employer of Singh, no longer exists. The business location was checked, persons operating contiguous businesses were interviewed and the internet was searched. No one had heard of them and all efforts to locate them failed. The Corporation Profile Report states that Prime Furniture was incorporated on March 23, 1998 with a “cancel/inactive date” of July 7, 2014;

(iii) On November 25, 2016, Singh provided the names of companies[^6] he claimed to have worked for along with the names of the persons he claimed to have worked for at each company.[^7] Singh provided a list of six individuals or companies.

Three of those companies are not in business. Their telephone numbers are no longer in service and they cannot be located, despite Google searches, corporate and business name searches, searches for persons listed as registering the business and website searches;

(iv) Singh’s counsel submitted at the hearing that he would rely on a report from Dr. Fred Langer, in order to establish that Singh’s injuries would have met the threshold under the Insurance Act. The report was not before the court on the motion.

Dr. Langer died on March 20, 2017. He was never cross-examined on any of his reports. His clinic is closed and his records are no longer available; and

(v) Four other doctors who treated or assessed Singh cannot be located.

The applicable law

[8] The governing principles on a motion to dismiss for delay are:

(i) An action will be dismissed for delay under Rule 24.01 if (a) the default is intentional and contumelious; or (ii) the delay is inordinate, inexcusable and such that it gives rise to a substantial risk that a fair trial of the issues in the litigation will not be possible because of the delay (Faris v. Eftimovski, 2013 ONCA 360 (“Faris”), at para. 28);

(ii) In determining whether there has been inordinate delay in having a matter get to trial, the length of time from the commencement of the proceeding to the motion to dismiss is considered (Leblanc v. MacMillan, 2015 ONSC 1477 (“Leblanc”), at para. 17);

(iii) Determining whether a delay is inexcusable requires an assessment of the reasons for the delay and whether those reasons provide an adequate explanation for the delay (Leblanc, at para. 18);

(iv) In the face of inordinate delay, a rebuttable presumption arises that the defendant is prejudiced because a substantial risk arises that a fair trial might not be possible (Tanguay v. Brouse, 2010 ONCA 73 (“Tanguay”), at para. 2);

(v) The presumption strengthens with the length of the delay (Tanguay, at para. 2); and

(vi) It is not necessary for the defendant to establish actual prejudice. Where a party fails to prosecute an action in a timely fashion, the court is entitled to exercise the powers conferred by the rules to dismiss actions absent an adequate explanation for the delay (1196158 Ontario Inc. v. 6274013 Canada Ltd., 2012 ONCA 544 (“1196158”), at para. 34).

Analysis

[9] In the present case, not only is there a presumption of prejudice arising from inordinate and inexcusable delay, Braithwaite has also led uncontested evidence of actual prejudice which establishes a substantial risk that his right to a fair trial might not be possible.

(a) The delay is inordinate

[10] I find that the delay is inordinate. The Braithwaite Action was commenced in August 2009. It is now almost 9 years later.

[11] Singh set the action down for trial in Newmarket, yet after it was traversed to Toronto in December 2012, more than five additional years passed before the action was set down for trial in January 2018. As of December 2012, all that remained to place the action on the Toronto trial list was for mediation to occur, yet Singh did virtually nothing to pursue the action until he was required to bring a motion to extend the date to set it down for trial in order to avoid an administrative dismissal.

[12] Singh took more than five and a half years (until November 25, 2016) to answer the bulk (but not all) of the limited set of 14 undertakings he provided at his examination for discovery on March 4, 2011.

[13] As shown in the list of all activity in the file which I have set out at paragraph 6 above, the only communications from Singh’s counsel for more than five years after the action was transferred to Toronto consisted of a few letters in which he either forwarded some answers to undertakings or requested that Braithwaite consider settlement.

[14] Singh acknowledged that the action was languishing, yet took no steps to move it towards trial. In his May 1, 2013 letter, Singh’s counsel stated that if the matter could not settle, “we need to move forward with a pre-trial”. Singh’s counsel wrote a similar letter on November 4, 2013.

[15] In his February 25, 2014 letter, Singh’s counsel wrote to Braithwaite’s counsel and stated that if the matter could not be settled, “I will have to roll up my sleeves and get this file in shape”. In his May 23, 2014 letter, Singh’s counsel stated that he was going to set the action down for trial.

[16] Despite those letters, Singh did not set the action down for trial until (i) almost five years after the first letter,[^8] (ii) more than five years after the Braithwaite Action had already been traversed to Toronto, and (iii) almost seven years after examinations for discovery in March 2011.

[17] On all of the above facts, I find the delay to be inordinate.

(b) The delay is inexcusable

[18] In his responding motion material, Singh provided no explanation for the delay.

[19] At the hearing, and without affidavit evidence in support of the submission, Singh’s counsel took the position that he could not set the action down for trial because of Braithwaite’s refusal to attend mediation.

[20] Submissions without evidence cannot rebut a presumption of prejudice.

[21] Further, even if I was able to consider the submission (which I do not), I would reject that explanation since the evidence filed by the parties about the mediation process does not support Singh’s position or explain the delay.

[22] By July 2011, there was an agreement between the parties to proceed to mediation in early 2012. There is no evidence as to why the mediation did not proceed at that time.

[23] The next reference to mediation is almost five years later, on April 7, 2016, when Singh’s counsel requested scheduling the mediation since it was “mandatory” for Toronto actions. Braithwaite’s counsel immediately responded that he would not attend a mediation unless Singh answered his long-outstanding undertakings.

[24] Consequently, not only is there no explanation for the almost five year delay between agreeing to mediation and Singh’s next follow-up on the issue, the uncontested evidence is that when Singh raised the issue of mediation again in April 2016, Braithwaite was prepared to attend mediation, provided that Singh answer his outstanding undertakings.

[25] Braithwaite’s position was reasonable. Undertakings were outstanding since March 2011, and included critical information such as Singh providing (i) a breakdown of accident benefits he received, (ii) a decoded list of OHIP services, (iii) the names and address of his employer, (iv) the names and address of the companies Singh worked for and the names of the persons he worked for at each company, (v) a record of Singh’s CPP contributions, and (vi) a copy of any expert opinion to be relied upon with respect to the value of the loss from his motor vehicle claim.[^9]

[26] Given the importance of these undertakings, Braithwaite reasonably required production of Singh’s answers so that mediation could be effective. Braithwaite’s position was later incorporated, on consent, into Master Graham’s order.

[27] Further, even if Braithwaite’s position on mediation was unreasonable (which I do not find), Singh could have brought a motion under Rule 24.1.05 exempting the action from the requirement for mediation, at any time after the file was traversed to Toronto.

[28] Singh provided no explanation as to why he required more than five years to answer the bulk (but not all) of his 14 undertakings.

[29] For the above reasons, I find that the delay in the Braithwaite Action is inexcusable.

(c) There is a substantial risk that a fair trial of the issues in the litigation will not be possible because of the delay

[30] I adopt the principle in Tanguay and find that given the length of the delay, the presumption of prejudice is strong in this case (Tanguay, at para. 2). Since Singh filed no evidence to rebut the presumption of prejudice, on that basis alone, I find a substantial risk that a fair trial of the issues in the litigation will not be possible because of the delay (1196158, at para. 34).

[31] Braithwaite also filed evidence of actual prejudice (which was uncontested) even though he was not required to do so. I further rely on that evidence and find that the loss of evidence and witnesses also gives rise to a substantial risk that a fair trial of the issues in the litigation will not be possible because of the delay.

[32] Once Singh brought the Braithwaite Action, Braithwaite was entitled to defend the claim not only on the issue of solicitor’s negligence, but also on the basis of a causation defence that Singh would not have succeeded in the MVA Action regardless of whether Braithwaite was negligent. Such a defence would have been relevant whether the court conducted a “trial within a trial” or assessed the loss of “something of value through negligence” (Harrison v. Skapinker, [2002] O.J. No. 2279 (SCJ) (“Harrison”), at para. 55).[^10]

[33] There are four key areas of missing evidence and witnesses as a result of delay. I address each of these matters below.

(i) Evidence related to Prime Furniture

[34] The lynchpin of Singh’s income loss claim is a purported letter from Prime Furniture dated January 12, 2001, four days before the alleged January 16, 2001 motor vehicle accident. In that letter, Prime Furniture purportedly offers Singh employment starting on January 20, 2001 (four days after the alleged accident) at approximately $6,000 per month for pickup and delivery of furniture. In the letter, an individual named Abdul Niazi purportedly writes, in a single sentence letter:

This is to confirm the agreement of your employment by the ‘Prime Furniture Warehouse’ starting on Jan 20, 2001, and will receive weekly $1,500.00 for pickup and delivery of furniture.

[35] Singh’s income loss claim depends on the court accepting his evidence that he (i) had an offer of employment from Prime Furniture and (ii) lost income since he could not take on that job after the accident.

[36] As noted above, Wawanesa took the position that the letter was fraudulent. Wawanesa sought to claim back the income benefits it paid pursuant to the letter.

[37] Prime Furniture and its owner can no longer be located. Braithwaite filed evidence that the business location was checked, persons operating contiguous businesses were interviewed and the internet was searched. All efforts to locate them failed.

[38] The “cancel/inactive date” for the corporation was July 7, 2014, almost five years from the statement of claim in the Braithwaite Action.

[39] Singh filed no evidence to contest the loss of the Prime Furniture evidence.

[40] Consequently, Braithwaite is now unable to challenge Singh’s evidence that he was employed to work as of January 20, 2001, at a salary of $1,500 per week, for pickup and delivery of furniture.

[41] In Tanguay, the court upheld the decision of the motion judge to dismiss the action for delay because the existing discovery and documentary evidence was “inadequate on the primary issue about the effect of the accident on the injured plaintiff, including his pre-existing and post-accident medical conditions, his functional capacity, and his income loss claim” (Tanguay, at para. 6).

[42] In the present case, Singh did not even purport to rely on existing evidence to submit that Braithwaite could respond to the loss of income claim in the face of the missing Prime Furniture evidence. Consequently, the missing evidence and witnesses related to the purported employment offer from Prime Furniture prevents Braithwaite from defending the action on the issue of income loss.

(ii) Other missing witnesses re: income loss and threshold

[43] As I discuss above, on November 25, 2016, five and a half years after he was examined for discovery, and more than three and a half years after being advised that the CRA printouts he had provided were not responsive to his undertaking, Singh provided the names of companies he claimed to have worked for and the names of people he claimed to have worked for at each company.

[44] Singh advised in his answer to undertaking that he worked for those companies[^11] during 2002, 2007, 2009 and 2010. He provided telephone numbers and the names of individuals for whom he purportedly worked.

[45] The uncontested evidence of Braithwaite is that three of the companies[^12] were no longer in business. Their telephone numbers were no longer in service and they could not be located. Calls to the numbers provided, Google searches, corporate and business name searches, searches for persons listed as registering the business, and website searches, all yielded unsuccessful results.

[46] Singh filed no evidence that any of these companies, or the individuals for whom Singh claimed to work, could be located.

[47] Without this evidence, Braithwaite faces two significant areas of prejudice.

[48] First, the witnesses from these companies would have given evidence as to the nature of the work that Singh would have done. The lack of such evidence deprives Braithwaite of the ability to call those employers as witnesses to give evidence that Singh can work in a manner similar to his pre-existing capabilities, and as such, does not meet the threshold.

[49] Second, Braithwaite cannot challenge the income loss claim by obtaining records to demonstrate that the quantum of income loss claimed should be reduced by income earned from these sources.

[50] Both of those defences are available to Braithwaite to address the merits of the MVA Action.

[51] Consequently, as in Tanguay, the loss of this evidence deprives Braithwaite of the ability to challenge “the primary issue about the effect of the accident on the injured plaintiff, including his pre-existing and post-accident medical conditions, his functional capacity, and his income loss claim” (Tanguay, at para. 2).

(iii) Missing medical witnesses

[52] At the hearing, Singh’s counsel advised the court that he intended to rely on a report of Dr. Fred Langer to establish that Singh suffered a permanent serious impairment of an important physical, mental or psychological function.

[53] However, even if (i) the Dr. Langer report could be considered as evidence relevant to the threshold issue (which I do not find as the evidence was not before me), and (ii) Singh could rely on the report at trial in lieu of Dr. Langer’s evidence (as Singh’s counsel proposes), the death of Dr. Langer and the loss of his records raises a substantial risk that a fair trial would not be possible.

[54] Dr. Langer died on March 20, 2017. He was never cross-examined on any of his reports. His clinic is closed and his records are no longer available.

[55] Braithwaite would be unable to (i) cross-examine Dr. Langer at trial or (ii) obtain any of the underlying documents, data, or records relied upon by Dr. Langer for his report. As the purported key medical witness on the threshold issue, depriving Braithwaite of his right to challenge Dr. Langer’s evidence would substantially prejudice Braithwaite’s right to a fair trial as a result of the delay.

[56] With respect to the other doctors who cannot be located, there is no evidence that their records are available. Given that the alleged motor vehicle accident took place 17 years ago, the records could be destroyed as early as 2011 pursuant to (i) s. 19 of the Medicine Act, 1991, O. Reg. 114/94, s. 19 and (ii) ss. 18 and 19 of the Medical Record Keeping Policy Directive of the College of Physicians and Surgeons of Ontario, both of which require doctors to keep their records for a period of ten years.

[57] Singh filed no evidence that any of those records or other doctors could be located.

[58] Consequently, Braithwaite would be deprived of the right to either call those other doctors or use their notes for the purpose of cross-examination, resulting in actual prejudice to a fair trial arising from the delay.

(iv) The destruction of the defence file in the MVA Action

[59] Samac was the counsel who successfully brought the motion to dismiss the action. The Dismissal Order was based on Singh’s conduct which included swearing a false affidavit and ignoring court orders. Singh takes the position that the Dismissal Order was made because of Braithwaite’s negligence. Consequently, the Samac file is relevant to the merits of the Dismissal Order, and whether Singh’s claim of Braithwaite’s negligence with respect to that order can be supported.

[60] The Samac file would also contain documents and notes relevant to damages, witnesses, and the investigation into Singh’s claim in the MVA Action. Given that Samac advised Braithwaite that the defendants would never settle the action since “[t]heir position was that Mr. Singh was the worst plaintiff they had ever seen and would not make any offers”, the file is relevant to Braithwaite’s defence of the merits of Singh’s motor vehicle accident claim.

[61] Singh filed no evidence that the Samac file could be located. In his factum, Singh submitted, with no evidentiary support,[^13] that “[p]resumably even though the tortfeasor’s file was destroyed in 2016, there is a scanned copy of it in existence”. Unsupported assertions in a factum do not rebut the presumption of prejudice.

[62] For those reasons, the loss of the Samac file constitutes actual prejudice to a fair trial arising from the delay.

(d) Singh’s position on prejudice

[63] Singh submits that because the action is based in solicitor’s negligence, Braithwaite is seeking to “benefit” from his own negligence in not gathering the appropriate evidentiary record. Singh submits that Braithwaite should have obtained the documents during the course of his retainer for Singh and now cannot submit that he is prejudiced because they cannot be located. I do not agree.

[64] Braithwaite was representing Singh in the MVA Action. In that capacity, it did not fall to Braithwaite to seek evidence to impeach his own client.

[65] By way of example, it was Singh who took the position that the letter from Prime Furniture was genuine. Singh intended to rely on that letter at trial to corroborate his evidence that he had a job offer. It would have been for the defendants in the MVA Action to seek to impeach Singh’s assertion through efforts to speak to witnesses and obtain records from Prime Furniture.

[66] Singh conflates Braithwaite’s role as counsel in the MVA Action with Braithwaite’s role as a defendant in the Braithwaite Action. As a defendant in the solicitor’s negligence action, Braithwaite can seek to impeach Singh’s claims in the MVA Action, whether as to threshold or income loss.

[67] The lost evidence is not what Braithwaite “failed” to obtain (as Singh submits) in the MVA Action, but rather evidence that a defendant would have sought to obtain to impeach Singh in the MVA Action, and is now lost for the reasons discussed above.

[68] Consequently, I do not accept Singh’s submissions in response to the issue of prejudice raised by Braithwaite.

Order and costs

[69] For the above reasons, I grant the motion and dismiss the Braithwaite Action on the basis of delay under Rule 24.01.

[70] Both counsel provided their costs outline or bill of costs at the hearing. Braithwaite sought $6,077 as partial indemnity costs (inclusive of HST and disbursements), while Singh sought a similar amount of $6,453.99 for his partial indemnity costs (inclusive of HST and disbursements).

[71] The costs sought by counsel were more than reasonable, given the numerous affidavits and detailed factums filed by both parties, and the comprehensive brief of authorities filed by Braithwaite. The costs reflect what an unsuccessful party would reasonably expect to pay for a motion of this importance and complexity.

[72] Consequently, I grant the motion by Braithwaite and fix costs in the amount of $6,077 (inclusive of HST and disbursements) payable by Singh to Braithwaite within 30 days of this order.

GLUSTEIN J.

Date: 20180621

[^1]: Braithwaite relied on s. 4.3 of O. Reg. 461/96 (the “Regulation”) and submitted that the action ought to be dismissed because medical evidence was required under ss. 4.3(2) to (4) of the Regulation. However, the motor vehicle accident at issue took place in 2001, so the statutory requirement for medical evidence did not apply (see s. 4.3(6) of the Regulation that provides that “[t]his section applies with respect to any incident that occurs on or after October 1, 2003”). Nevertheless, the threshold definition under s. 267.5(5) of the Insurance Act applied both before the Regulation (for accidents after November 1, 1996) and with the passage of the Regulation (see s. 4.1), although specific legislative criteria to establish the threshold were set out in s. 4.2, and certain statutory evidentiary requirements (medical evidence at ss. 4.3(2) – (4) and corroborating evidence at s. 4.3(5)) were added in the Regulation.

Braithwaite’s counsel submitted that even without s. 4.3 being in effect, there was case law that held that medical evidence was required to establish the threshold such that ss. 4.3(2) to (4) effectively codified existing common law. Braithwaite’s counsel offered to provide that case law to the court at a later date.

However, any further analysis of this argument is irrelevant to these Reasons since the action ought to be dismissed on the issue of delay.

[^2]: The issue of discoverability depends largely on whether the limitation period runs from (i) either notice of when the appeal was dismissed as abandoned (April 16, 2007) or at the latest, the date the motion to set aside the dismissal of the appeal was to be heard (July 5, 2007), in which case the Braithwaite Action (issued in August 2009) is statute-barred or (ii) whether Singh would not reasonably know that a proceeding “would be an appropriate means to seek to remedy” his loss under s. 5(1)(a)(iv) of the Limitations Act, 2002 until Singh asked his new counsel in January 2008 to look into the matter (after assuming that Braithwaite would appear in July 2007), in which case the expiry of the limitation period would be no earlier than January 2010 and the Braithwaite Action (issued in August 2009) would not be statute-barred. I do not address this issue given my finding that the Braithwaite Action ought to be dismissed for delay.

[^3]: I agree with the position taken by Braithwaite’s counsel. The CRA printouts contained none of the information requested in the undertaking.

[^4]: Braithwaite states that he received the answers on November 27, 2016, but the difference is immaterial.

[^5]: (the date of the last affidavit sworn by Earl Murtha (“Murtha”), counsel at Braithwaite’s law firm)

[^6]: (which also appear to include the name of one individual)

[^7]: This information was provided as an answer to the undertaking Singh had given at his March 2011 examination for discovery and had not properly answered in his letter dated March 15, 2013, as advised by Braithwaite’s counsel by letter dated April 12, 2013, as I set out at subparagraphs 6(xiii) and (xiv) above.

[^8]: (when all the letters expressed a purported urgency)

[^9]: Singh only advised Braithwaite on November 25, 2016 that he would not call expert evidence on the value of his loss from his motor vehicle claim.

[^10]: The “loss of value” approach is adopted when “lapse of time or the absence of witnesses might preclude a Court from conducting a substitute trial in order to determine whether the claimant would probably have succeeded” (Prior v. McNab (1976), 16 O.R.(2d) 350 (H.C.J.), at 381, cited at Harrison, at para. 55). However, the general principles set out by the Court of Appeal regarding dismissal for delay still apply when the delay is inordinate, inexcusable and such that it gives rise to a substantial risk that a fair trial of the issues will not be possible because of the delay.

[^11]: (the list of companies appears to include the name of one individual)

[^12]: Murtha’s evidence is that those companies were City Transport, Jaimaa Transport, and Armada Group.

[^13]: (and despite the uncontested evidence that Samac had “destroyed” the file in 2016)