Court File and Parties

COURT FILE NO.: CV-10-417396 MOTION HEARD: 20180918 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Debra Minogue, Plaintiff AND: Daniel Harper and Aviva Canada Inc., Defendants

BEFORE: Master Jolley

COUNSEL: Chris Guerette, Counsel for the Moving Party Plaintiff M. Abbas, Counsel for the Responding Party Defendant Daniel Harper R. Forderer, Counsel for the Responding Party Defendant Aviva Canada Inc.

HEARD: 18 September 2018

Reasons for Decision

[1] The plaintiff brings this motion to set aside the order of the registrar made 21 August 2017 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). The plaintiff is not required to satisfy each criteria.

(b) In determining the fourth factor of prejudice, the court must address (i) whether the plaintiff has satisfied her onus to establish no significant actual prejudice to the defendants’ ability to defend the action as a result of her 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 motor vehicle accident that occurred in January 2009. The action was commenced in January 2010. Examinations for discovery were conducted in March 2012 and August 2013. A status hearing notice was received in May 2013 as a result of which a timetable was set that required the action to be set down for trial by 23 May 2014. The plaintiff did set the action down just prior to or at that deadline.

[4] Between her first examination and second examination for discovery, on 13 February 2013, the plaintiff was involved in a second motor vehicle accident. An action was commenced in respect of that accident in February 2014 (the “second action”). Examinations for discovery in the second action commenced in August 2014 but were not completed. A global mediation took place on 20 February 2015.

[5] As the plaintiff’s injuries from this second accident overlapped those she allegedly suffered in the first accident, her counsel obtained an order on 3 September 2015 that this action be tried together with the second action.

[6] Approximately 7 ½ years after the action was commenced, on 21 August 2017 the court issued an order dismissing the plaintiff’s action for delay.

Reasonable Explanation for the Delay

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

[8] Aviva notes that it did not hear from the plaintiff from February 2015 to September 2016, apart from receipt of the order for trial together which was obtained in September 2015. Further, it notes that more than 1 ½ years passed between its last correspondence from plaintiff’s counsel in September 2016 and a call from plaintiff’s counsel in the spring of 2018 to discuss resolution of the action. Aviva deposed that it had received the dismissal order from the court in August 2017 and had assumed that, given the passage of time, the plaintiff was not pursuing her action and the filed was closed.

[9] From the defendants’ perspective it appeared that the plaintiff was taking no steps to move the matter forward and, indeed, was not even responding to their requests for updated documentary information. To the contrary, plaintiff’s counsel deposes that he was extensively involved in collecting relevant documents and records from non-parties to support the plaintiff’s claim. I note that the record discloses more than 100 letters from 2010 to August 2015 requesting documentation from various non-parties. He also brought a motion in 2016 for non-party production from the OPP and it took a year of sporadic follow up before those records were received in August 2017 and finalized in October 2017.

[10] Plaintiff’s counsel was concentrating his efforts on bringing the second action up to speed so that the two matters could be set down for trial together in keeping with the court order.

[11] While I accept that the plaintiff’s actions were not shared with the defendants, the evidence in the record is that plaintiff’s counsel was assembling supporting documentation in this action and also trying to catch the second action up to this action so that they could be set down for trial with an appropriate trial estimate. In the spring of this year, once the second action settled or was about to settle, plaintiff’s counsel did then contact defence counsel to discuss resolution of this action.

[12] I am satisfied that the plaintiff has provided a reasonable explanation for the delay.

Inadvertence in Missing the Deadline

[13] Plaintiff’s counsel deposes that the matter was set down for trial in 2014 and that he would have completed and submitted the trial certification form some time ago but for the fact that this action was tied to the second action. The second action could not be set down unless discoveries were waived or completed and that did not occur before the action was settled in the spring of 2018.

[14] As noted above, the plaintiff spent the time, albeit unbeknownst to these defendants, bringing the second action up to speed so that he could set both actions down for trial together.

[15] The failure to set the action down for trial was not a deliberate decision on the part of the plaintiff or her counsel. I accept that the deadline was missed through inadvertence.

Motion Brought Promptly

[16] Plaintiff’s counsel deposed that his office did not receive the dismissal order when it was issued in August 2017 and that it did not come to his attention until 15 May 2018 when he was advised by one of the co-defendants of its existence. Once he was advised in May 2018 that the action had been dismissed in August 2017, plaintiff’s counsel obtained this motion date.

[17] Defence counsel filed an affidavit stating that he notified plaintiff’s counsel on 31 October 2017 by email that the action had been dismissed for delay. Plaintiff’s counsel reviewed his records and filed a supplementary affidavit conceding that he did receive the notification from defence counsel on that date.

[18] Plaintiff’s counsel did not put sufficient weight on the email sent to him in October 2017 from defence counsel advising him that the action had been dismissed. He forwarded it to a senior clerk in his office to manage but did not provide her with instructions to move to set the order aside. He seems to have presumed it would be dealt with and then set about readying the second action for trial together. The second action settled in May 2018 and a few months before that time, in March 2018, the plaintiff was in contact with defence counsel to discuss settlement.

[19] While there is an explanation as to why the motion was not brought in a timely manner after the dismissal order came to the plaintiff’s attention the first time in October 2017, the fact is that the order was forgotten and the motion was not brought promptly.

Prejudice to the Defendants Should the Dismissal Order be Set Aside

[20] Aviva deposes that it has not received answers from the plaintiff to seven outstanding undertakings. By order of the court the plaintiff was to answer her undertakings by 31 December 2013. The defendant last requested this information from the plaintiff in November 2014. It was conceded on the motion that most if not all of those undertakings had been answered through best efforts, at least by the date of the motion.

[21] Counsel for Aviva wrote twice in 2015 asking plaintiff’s counsel why he had not filed the trial certification form. He received no reply.

[22] In May 2016 Aviva threatened a motion to dismiss for delay, which resulted in the plaintiff’s motion for the OPP records. Since their production in August 2017, the plaintiff has not provided the defendants with copies of those records.

[23] The defendants then did not hear from plaintiff’s counsel from 30 September 2016, when he sent the Rule 30.10 order, to 22 March 2018 when he called to discuss resolution of the action. The only contact on the file was the dismissal order of the court sent in August 2017.

[24] On the issue of prejudice, the parties were the only two witnesses to the accident and they were examined some time ago and transcripts are available. While I understand the plaintiff has alleged the involvement of an unidentified motor vehicle and, according to the defendants, has produced no evidence of such a vehicle, they have examined her for discovery on this issue and also have her statement at the time of the accident as well as the investigation notes. While witnesses’ recollections do fade over time, that is mitigated in this case by the existence of those transcripts and accident notes.

[25] The plaintiff has not provided the defendants with updated medical records, although they have been requested since November 2014. The defendants argue they are prejudiced in their ability to assess the plaintiff’s claim, not having received any medical records for her since 2014. Plaintiff’s counsel advised on this motion that they intended to provide updated medical records closer to pre-trial.

[26] The defendants note that the records of Dr. Johnson are no longer available due to a flood that occurred in his office sometime before May 2014. The loss of those records cannot be said to be tied to the delay as they would not have been available had the action been set down in time. Further, the evidence is that Dr. Johnson is able to reconstruct the plaintiff’s attendances.

[27] The court can rectify the plaintiff’s failure to provide medical records through an order compelling their production rather than through a dismissal of the action, without prejudicing the defendants’ ability to defend the claim.

[28] Lastly, the defendants note that the plaintiff has not set out which witnesses she intends to call at trial or confirmed that they remain available and that their recollections have not faded. Presumably, the plaintiff was asked, or could have been asked, on her examination for discovery about the witnesses she intended to call or about persons who might reasonably have knowledge of the matters in issue. If family and friends or other witnesses are called, they can be cross-examined about the accuracy of their memory and the weight to be given to their evidence, given the passage of time.

[29] I do not find that there is prejudice to the defendants should the order be set aside.

Conclusion on What is Just in the Circumstances

[30] On a motion such as this, the court looks to fashion the most just result for all parties. While finality to all parties is an important consideration, so is deciding matters on their merits when that remains an option that does not prejudice the defendants.

[31] I am satisfied that this is the appropriate outcome in this case. Pleadings were completed some time ago. Discoveries were completed and most if not all undertakings have been answered. A mediation has taken place, a Rule 30.10 motion brought and documents received. All that remains for the matter to be heard on its merits is the delivery of updated medical information, a pre-trial conference and trial.

[32] The motion is granted. The order of the Registrar dated 21 August 2017 is hereby set aside.

[33] In order to ensure that there are no further delays, the plaintiff shall provide the updated medical information requested by the defendants as soon as possible and, in any event, well in advance of a pre-trial conference.

Costs

[34] There were significant periods in this file where the defendants requested documentation from the plaintiff and received no answer whatsoever to their inquiries. Plaintiff’s counsel now deposes that he did not provide the updated information as he wished to avoid duplication of cost and time by having to again update the information for the pre-trial. First, if that were his position, the appropriate response would have been to advise defendants’ counsel so that a discussion could ensue about disclosure. It was inappropriate to leave such a long series of requests simply unanswered. Second, the lack of response led the defendants to believe that the plaintiff was no longer interested in pursuing her action.

[35] The plaintiff has obtained discretionary relief from this court despite being unresponsive to the defendants and despite not taking steps almost a year ago to get this matter on track. The defendants shall have their costs of responding to this motion. The plaintiff shall pay the defendant Harper his costs of the motion on a partial indemnity scale in the amount of $2,500 within 30 days of this decision. She shall pay the defendant Aviva its costs on a partial indemnity scale in the amount of $4,000 within 30 days of this decision.

Master Jolley Date: 20 September 2018