Court File and Parties

Newmarket Court File No.: CV-11-103869-00SR Date: 2018-10-26 Ontario Superior Court of Justice

Between: Jose Omar Villegas, Plaintiff – and – Simon Kapteijn, Defendant

Counsel: Bryan Rumble, for the Plaintiff Garett Harper, for the Defendant

Heard: October 25, 2018

Reasons for Decision

VALLEE, J.:

Nature of the Motion

[1] The plaintiff brings a motion to set aside the Registrar’s administrative dismissal of this action. The defendant opposes the motion on the grounds of prejudice.

Applicable Law

[2] Both parties agree that the test for setting aside the Registrar’s order dismissing the action for delay is outlined in Reid v. Dow Corning Corp., 2001 CarswellOnt 2213, para 41. The plaintiff must provide an explanation of the litigation delay, show inadvertence in missing the deadline, the motion must be brought promptly and there must be no prejudice to the defendant. The court must consider all of these factors; however, the plaintiff is not required to satisfy them all.

Chronology

[3] The statement of claim was issued on April 21, 2011.

[4] The statement of claim was amended on September 16, 2011.

[5] The statement of defence was filed on October 11, 2011.

[6] Examinations for discovery were held on November 7, 2013.

[7] The defendant’s lawyer was removed as solicitor of record by order of Master Brott, dated December 7, 2016. The Master’s order allowed the defendant 90 days to appoint new counsel or file a notice of intention to represent himself.

[8] The parties consented to the order of Justice McKelvey, dated December 13, 2016, in which a timetable was set out. The plaintiff was required to set the matter down for trial by December 31, 2017. He failed to do so.

[9] The Registrar administratively dismissed the action for delay on January 16, 2018.

[10] The plaintiff approached the defendant to obtain motion dates to have the dismissal set aside. The plaintiff sent a requisition for a motion date on March 18, 2018. The date of May 18, 2018 was provided. By that point, the defendant had retained new counsel who was not available on that date. The next available date was in August 2018. The matter was not reached because the list was overscheduled.

[11] This motion proceeded on October 25, 2018.

The Plaintiff’s Position

[12] The plaintiff states that there is no evidence of prejudice to the defendant. Although there was a gap in the proceedings, the defendant consented to an order which included having the matter set down by December 31, 2017. The test for prejudice is not simply the passage of time.

[13] The plaintiff states that through inadvertence, it missed the deadline to set the action down for trial. The date was not appropriately diarized. Examinations for discovery have taken place. Any significant investigations that were required should have already been done. The action is now ready to be set down. All of the undertakings have been answered. The defendant has counsel. The court must apply contextual analysis. There is no evidence of prejudicial delay to the defendant.

The Defendant’s Position

[14] The defendant agrees that the plaintiff answered his undertakings but only in June, 2018, after the action was dismissed. Over the winter of 2017, there were some to settlement discussions. The plaintiff did not bring a motion to compel the answer to the defendant’s undertaking or dismiss the action because the defendant had a failed to appoint counsel.

[15] The defendant called the Registrar on January 31, 2018 to ask if the action had been dismissed. He was told that it had been. He then purged his documents. He no longer has the documents in order to defend the action. A survey is an important piece of evidence in this action. The surveyor is gone. Therefore, the defendant will not be able to call him as a witness if necessary.

[16] The plaintiff has not met its onus to explain the delay. There is simply a bald assertion that through inadvertence, the action was not set down by the deadline date. The plaintiff did not request an amendment to the timetable before the date passed. When one considers the chronology, there is a pattern of delay. Memories have faded and expenses have risen.

[17] With respect to this motion, the plaintiff contacted the defendant and then waited two months to prepare and serve the materials.

[18] The defendant states that the concept of finality is a compelling consideration. At some point, the interest in finality must take priority over the plaintiff’s request for an indulgence. (See Marché D’Alimentation Denis Thériault Ltée v. Giant Tiger Stores Ltd., 2007 ONCA 695, paras 37, 38).

[19] Witnesses’ memories fade over time. The passage of an inordinate length of time after claim is issued or after limitation period expires gives rise to concerns about trial fairness. Even if there is no actual prejudice, allowing dated claims to proceed will often be unfair to litigants. (See 1196158 Ontario Inc. v. 6274013 Canada Ltd., 2012 ONCA 544, para 42).

[20] The court should not consider the defendant’s engaging in settlement negotiations in the summer of 2018 to be a waiver with respect to its position on prejudice. There are many reasons why parties would wish to settle a matter even though it has been administratively dismissed.

[21] Even though a significant period of time had passed in the litigation with no steps having been taken, the defendant consented to an extension for the plaintiff which is set out in Justice McKelvey’s order. The defendant was generous in this regard. Despite this, the plaintiff still missed the deadline.

Analysis

[22] The plaintiff points out that for the defendant to successfully rely on prejudice, the prejudice must go to the defendant’s ability to defend the action and must result from the plaintiff’s delay. Prejudice does not result merely from the passage of time. (See Cedrom-Sni Inc. v. Meltwater Holdings, 2017 ONSC 3387).

[23] While the defendant may have destroyed his records upon the Registrar’s advice that the action had been dismissed, earlier in the action, he served and filed an affidavit of documents complete with copies of Schedule A productions. Accordingly, the documents that he requires to defend the action do still exist. The defendant’s statement that the surveyor is no longer available is addressed by plaintiff’s counsel’s concession that he would not take issue with the authenticity of any of the documents listed in Schedule A. Accordingly, testimony from the surveyor would not be required.

[24] Marché D’Alimentation Denis Thériault Ltée v. Giant Tiger Stores Ltd. can be distinguished because four years passed between the dismissal order and the motion brought by the plaintiff to set it aside. Here, three months passed between the date of the dismissal order the time when the plaintiff started to canvas motion dates. The plaintiff’s notice of motion is dated May 7, 2018.

[25] In considering the Reid factors, I find that the plaintiff has not offered a particularly compelling explanation for the litigation delay. There was significant gap between the examinations for discovery in November 2013 and the plaintiff’s next efforts in October 2016 to inquire into the status of the deposit, which is the issue in this action. Nevertheless, the defendant consented to Justice McKelvey’s order which, if it have been complied with, would have resulted in the action’s proceedings in 2018.

[26] With respect to inadvertence in missing the deadline, the plaintiff states that the date was not properly diarized. I accept this explanation.

[27] I find that this motion was brought promptly after the plaintiff became aware of the Registrar’s dismissal. There is no evidence that there is any prejudice to the defendant with respect to his ability to defend the action.

[28] On a contextual analysis, I find that the defendant will be able to defend the action just as effectively now as he could have, had the action been set down for trial in December, 2017.

Conclusion

[29] The plaintiff’s motion for an order to set aside the Registrar’s dismissal for delay is allowed. The plaintiff requests an order varying Justice McKelvey’s order to extend the deadline for setting down the action to December 31, 2018. I do not see why the plaintiff should require two more months in order to take this procedural step. The plaintiffs shall set the action down for trial by November 30, 2018.

Costs

[30] Plaintiff’s counsel indicated that if the plaintiff were successful on the motion, no costs would be sought. Accordingly no costs are ordered.

Madam Justice M.E. Vallee Released: October 26, 2018