Jean Khalil Assaf v. The City of Toronto and TD Life Insurance Company

COURT FILE NO.: CV-11-417489 MOTION HEARD: 20180904 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jean Khalil Assaf, Plaintiff AND: The City of Toronto and TD Life Insurance Company, Defendants AND: Pave-Tar Construction Ltd., Third Party

BEFORE: Master Jolley

COUNSEL: Joel P. McCoy, Counsel for the Moving Party Plaintiff Samantha Bonanno, Counsel for the Responding Party Defendant City of Toronto Hailey Abramsky, Counsel for the Responding Party Defendant TD Life Insurance Company

HEARD: 4 September 2018

REASONS FOR DECISION

[1] The plaintiff brings this motion to set aside the order of the registrar made 5 February 2014 dismissing the action for delay.

[2] The governing principles are well established:

(a) The plaintiff must provide a reasonable explanation for the delay; the deadline must have been missed through inadvertence; the motion must have been brought promptly; and the plaintiff must rebut the presumption of prejudice. If the presumption is rebutted, the defendant then has the onus of demonstrating it would suffer actual prejudice should the dismissal order be set aside ( Reid v Dow Corning Corp. 2001 11 C.P.C. (5th) 80 ).

(b) In determining the fourth factor of prejudice, the court must address (i) whether the plaintiff has satisfied his onus to establish no significant actual prejudice to the defendants’ ability to defend the action as a result of his delay; and (ii) whether in light of the delay, the principle of finality and the defendants’ reliance on the security of their position should nevertheless prevail…. The question as described by Sharpe, J. in Marché v. d’Alimentation Denis Thériault Ltée v. Giant Tiger Stores Ltd. 2007 ONCA 695 is simply whether the interest in finality must trump the opposite party’s pleas for an indulgence ( Prescott v. Barbon 2018 ONCA 504 at paragraphs 36 and 37 ).

(c) The analysis is to be a contextual one which considers the overall dynamics of the litigation to determine what is just in the circumstances, balancing the interests of the parties and taking account of the public’s interest in the timely resolution of disputes ( Carioca’s Import and Export Inc. v. Canadian Pacific Railway 2015 ONCA 592 at para 54 ; Whapmagoostui First Nation and MPT 39 Inc. v. Perron 2017 ONSC 4311 at para 7 ; Hamilton (City) v. Svedas Koyanagi Architects Inc. 2010 ONCA 887 at para 23 ).

Relevant Facts

[3] This action arises out of a fall that occurred on or about 13 January 2009, almost ten years ago. The action was commenced in January 2011. Once the plaintiff clarified the date of the fall, as there had been some discrepancy, counsel for the City of Toronto advised plaintiff’s counsel that it would be appropriate for the plaintiff to add the winter maintenance contractor as a defendant. Despite approximately eight follow up communications from the City, plaintiff’s counsel never brought the contemplated motion.

[4] In July 2012 the parties agreed to hold examinations for discovery in November 2012. Those were ultimately adjourned so that the City could bring a third party claim to add the winter maintenance company, when the plaintiff failed to add the company as a defendant. TD Life Insurance was the only party to deliver an affidavit of documents. It made multiple requests for the plaintiff’s affidavit of documents, and one was promised by the end of 2012, but none was ever received.

[5] On 24 June 2013 the court issued a status notice advising that the action would be dismissed within 90 days if it was not set down for trial. In August 2013, counsel for the City wrote to the plaintiff asking him to amend his claim to add the winter maintenance company and to correct the date of the fall. When he received no response, he followed up again with plaintiff’s counsel in September 2013, noting:

The plaintiff has done nothing on this file since filing the Statement of Claim more than two years ago. You have given us assurances that something would be done. I have called and emailed you numerous times and you have not at all responded over the past three months. On that last occasion in May [sic] said that you were going to file the motion the next day but did not do so. I can only assume the plaintiff has lost interest in pursuing this matter in any meaningful way. If so, please advise and discontinue the action. Otherwise, let’s get on with it.

[6] In response that same day, plaintiff’s counsel noted that his client had had a series of personal problems that had affected his availability but that he would arrange a schedule to get the matter moving. Despite a further follow up from counsel for the City in December 2013 reminding plaintiff’s counsel that it had been twenty months since he had confirmed the date of the fall and had promised to amend his claim and that during those twenty months but had failed to do so, nothing was done to move the action forward. In fact, the plaintiff was not heard from again after September 2013 until the spring of 2018.

[7] More than seven months after receipt of the status notice, on 5 February 2014, the court dismissed the action. From its commencement in January 2011 to its dismissal in February 2014, the action never proceeded past the pleadings stage. (It seems that long after the action was dismissed, the plaintiff commenced a separate action against the winter maintenance company.)

[8] What is the plaintiff’s explanation for that delay?

Reasonable Explanation for the Delay

[9] In his affidavit in support of his motion, the plaintiff deposed that he constantly followed up with his lawyer by telephone and was advised that his case was progressing. The telephone calls would range from monthly to about once every three months. Further, he would meet his lawyer about once a year to provide him with updates and to request an update about his case. They met on about five occasions at the plaintiff’s residence and one time at a coffee shop. In 2017 the plaintiff became concerned about his case. He stated that he did not know about the procedural or substantive steps that had to be taken but knew that he did not have a settlement or a trial date. When his lawyer did not respond to him in November and December 2017, the plaintiff decided to retain a new lawyer.

[10] He retained his present firm on 7 December 2017. It took numerous requests and more than three months for the former lawyer to send the file. When it arrived, it appeared to be missing significant portions but it was apparent that nothing had been done to advance the case after the initial pleadings stage.

[11] The plaintiff deposed that he was never advised that his action had been dismissed and that he always intended to pursue his claim. He found out in May 2018 when his new lawyer attended at the courthouse and obtained a printout of the Case Information Sheet that the action had been dismissed more than four years earlier.

[12] There is no explanation, let alone a reasonable explanation, as to why no motion was brought to amend the claim, as to why no affidavit of documents was sworn, as to why no examinations for discovery were arranged and why no action was taken even after delivery of the status notice. I accept that the plaintiff did follow up between monthly and quarterly with his lawyer. While the plaintiff may not have personally been aware of the steps that had to be taken, he entrusted a lawyer to pursue his claim and it seems his lawyer did not take steps to do so. The former lawyer did not file an affidavit on this motion and was not examined as a witness on a pending motion.

[13] What the record discloses is that any attempts to move the matter forward were made by the defendants and, after a cursory promise or two, were ignored by the plaintiff’s lawyer. In short, there is no evidence or explanation why the matter did not move forward.

[14] The plaintiff has not provided a reasonable explanation for the delay.

Inadvertence in missing the deadline

[15] The onus is on the plaintiff to lead evidence that the deadline was missed due to inadvertence and not due to negligence or due to a deliberate decision not to try to meet the deadline ( Wetzel v. Ontario Realty Corp. 2009 CarswellOnt 7482 at paragraph 67 ). The plaintiff deposed that it was never his intention to have his action delayed or discontinued. He made numerous attempts to contact his lawyer to get updates and did not become concerned about the status of the action until 2017. While the plaintiff may not have intended to miss the deadline, it cannot be said that his lawyer’s failure to set the action down for trial was inadvertent. He knew there had been a status notice sent in June 2013. He knew the action would be dismissed if it were not set down for trial within 90 days. There is no evidence that this failure to do so was inadvertent as opposed to negligent.

[16] While I accept it was not the plaintiff’s intention to have his action dismissed, there is no evidence that the deadline was missed through inadvertence.

Motion brought promptly

[17] The defendants argue that the motion to set aside the dismissal order was not brought promptly as the dismissal occurred in February 2014 and this motion was not brought until June 2018. The test as set out in Reid, supra, is whether the plaintiff moved forthwith to set aside the dismissal order as soon as the order came to his attention, not as soon as it was made. Even accepting this test, the defendants argue that the motion was not brought promptly. They argue that the plaintiff’s new lawyer must have known the action had been dismissed or was at risk of being dismissed, given its age. Rather than waiting until March 2018 to get the file and then waiting again until May 2018 to attend at the court office to discover the dismissal, the defendants argue that plaintiff’s new counsel should have taken steps to determine the status of action when they were retained in early December 2017.

[18] On 23 May 2018, some five months after being contacted by the plaintiff, his new lawyers filed a notice of change of lawyer. I accept that they were entitled to take some time to work with the former lawyer to get the file and determine the status of the action and work with LawPro to determine its position. When they did get the file in March 2018, there was nothing to alert them to the fact that the action had been dismissed. They did not have that information until 10 May 2018.

[19] I am satisfied that the plaintiff brought this motion promptly after the dismissal order came to his attention.

Prejudice to the defendants should the dismissal order be set aside

[20] The plaintiff deposes that the defendants had early notice of his claim, that one defendant provided an affidavit of documents and that the defendants have not indicated that any documents have been lost or that they will be unable to present their case at trial. As a result, he believes the defendants will not be prejudiced should the dismissal be set aside.

[21] The plaintiff has alleged that he was walking on the sidewalk when he was required to step aside to allow a woman with a baby carriage to pass the narrow area of the sidewalk. As he stepped aside, he fell and broke his ankle. As against the City, he alleges that it failed to inspect, maintain and repair the sidewalk in 2009 and failed to clear and salt the sidewalk.

[22] This is not just a case of contract interpretation, as the plaintiff argued. Liability is in issue. The plaintiff’s case will rely at least in some part on his memory of an event almost ten years ago – what was the condition of the sidewalk, what amount of snow was on the sidewalk, if any, how wide was the path, what was the temperature, what footwear was he wearing, how far was the woman from him, how wide was the stroller, what information is there that could identify the woman as a witness or identify other witnesses. The plaintiff’s recollection of events from the date of the fall in January 2009 to the date of his surgery in May 2009 would also be important.

[23] The defendants did attempt to arrange examinations for discovery early in the life of the litigation to obtain that evidence but those discoveries did not take place nor did the plaintiff deliver an affidavit of documents. Should examinations for discovery take place now, it can be reasonably inferred that the plaintiff’s recollection of the specifics of the day and the event will have faded over the prior decade.

[24] I find there will be prejudice to the defendants should be matter be allowed to proceed to trial.

Conclusion on what is just in the circumstances

[25] On a motion such as this, the court looks to fashion the most just result for all parties. In this case where the action has not progressed beyond the pleadings stage in almost a decade, weighing the interest of both parties and the public’s interest in the fair and timely determination of disputes, I find that simply too much time has passed for it to be just that this matter now proceed. As noted in Marché, supra at paragraph 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. This is especially true where, as in the present case, the opposite party appears to have another remedy available.

[26] We are at that point. The plaintiff’s motion to set aside the dismissal order is dismissed.

[27] If the parties cannot agree on costs, they may each file a costs outline and costs submissions no more than three pages in length by 28 September 2018.

Master Jolley Date: 14 September 2018