COURT FILE NO.: CV-12-463120
MOTION HEARD: 20180201
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: 2154239 Ontario Inc., Plaintiff
AND:
2281459 Ontario Inc. Sundeep Mann, Gagandeep Mann, Mukesh Patel, Charanjit Singh and Narinder Singh, Defendants
BEFORE: Master Jolley
COUNSEL: Ray Thapar, Counsel for the Moving Party Plaintiff
Mark Alter, Counsel for the Responding Party Defendants Charanjit and Narinder Singh
HEARD: 1 February 2018
REASONS FOR DECISION
[1] The plaintiff brings this motion to set aside the order of the registrar 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 showing 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) The analysis is to be a contextual one which considers the overall dynamics of the litigation to determine what is just in the circumstances (Carioca’s Import and Export Inc. v. Canadian Pacific Railway 2015 ONCA 592 at para 54 and Whapmagoostui First Nation and MPT 39 Inc. v. Perron 2017 ONSC 4311 at para 7).
[3] The parties agree that the motion was brought promptly and that the deadline was missed through inadvertence. Where they differ is on whether the plaintiff has provided a reasonable explanation for the delay and whether there is prejudice to the Singh defendants should the action be restored.
Reasonable Explanation for the Delay
[4] The defendants’ main contention is that the plaintiff from taking any steps in the litigation from the time it had the statement of claim issued in September 2012 and December 2014. Thereafter, while there were delays in moving the mater to examinations for discovery and mediation, those delays do not lie, at least not exclusively, at the feet of the plaintiff.
[5] Pleadings were closed in April 2013. Plaintiff’s counsel advised that he was moving his practice to Brampton and that accounted for the delay. It is difficult to see – and there is no explanation offered – how that could have derailed the matter from April 2013 until February 2014 when plaintiff’s counsel served a notice of change of lawyer with his new firm’s particulars and then again from February 2014 to December 2014 when the action did get back on track.
[6] In December 2014 plaintiff’s counsel served a draft discovery plan. The Singhs responded in March 2015 indicating they did not foresee any issues but the other parties did not respond and no plan was formalized.
[7] Also starting in December 2014, the plaintiff did attempt to arrange examinations for discovery. He had two different series of dates set aside in 2015, neither of which proceeded due to various action or inaction on the party of one or other of the defendants.
[8] Discoveries of most parties were finally completed in September 2016 and the remainder were concluded in March 2017. In March 2017 plaintiff’s counsel attempted to arrange a mediation date so that he could set the matter down for trial before the deadline. The Singhs insisted that they needed to conduct examinations for discovery of the third party in the third party action they started in 2012 before a mediation could take place. They could have conducted those examinations at any time after April 2013 when third party pleadings closed but had not done so. The failure to move that third party claim along, at least at the same time as the main action, resulted in a delay in conducting the mediation. Both the Singhs and the plaintiff did attempt to prod the third party in June and July 2017 for its position on mediation dates and a mediator. The plaintiff finally did get the position of the third party in July, but then the Singhs did not respond. As the action was not set down before the deadline, it was dismissed on or about 2 October 2017.
[9] Counsel for the plaintiff wrote to counsel for the Singhs and the third party on 4 October 2017 stating “All I required was a date for the proposed mediation to prevent a rule 48 issue. I made numerous requests but this was not provided to allow us to set the main action down for trial….”
[10] There are gaps in the litigation progress, certainly at the outset. However, the plaintiff never abandoned the action or put it in abeyance. It has moved through the conclusion of discoveries to the threshold of mediation, which was then complicated by the Singhs’ third party claim not having proceeded. On this motion I have taken into account both the plaintiff’s inaction at the outset and the Singhs’ inaction on their third party claim. Their position in March 2017 that they would not provide available mediation dates until after they had conducted the examination for discovery of the third party (even mediation dates that postdated that examination) had as much impact on the plaintiff missing the deadline as did the plaintiff’s unproductive 22 months at the outset of the litigation. While the plaintiff bears the primary responsibility for moving a case forward, the defendant’s conduct is also a factor, especially where a plaintiff encounters some resistance when trying to move the action along (Carioca’s Import & Export Inc., supra at paragraph 53, quoting 1196158 Ontario Inc. v. 6274013 Canada Ltd. 2012 ONCA 544 at para 29).
[11] I find the plaintiff has provided a reasonable explanation for the delay.
Prejudice
[12] The Singhs contend that they are prejudiced by the intervening bankruptcy of the Mann defendants. The Manns were scheduled to be examined for discovery in February 2017. When they arrived they each provided a letter from the office of Bankruptcy Canada and a Certificate of Appointment and Notice of Bankruptcy. While the Singhs may be prejudiced from a recovery standpoint should they succeed on their crossclaim against the Manns, that prejudice is not caused by the delay in the litigation. Had the matter gone to trial and the Singhs succeeded against the Manns, the Manns could or might have declared bankruptcy at that stage and the position of the Singhs would be no different. Any prejudice is due to the financial position and bankruptcy of the Manns, not from an order setting aside the dismissal order.
[13] I find the plaintiff has rebutted the presumption of prejudice and the Singhs have not demonstrated any actual prejudice should the action be restored to the trial list.
Costs
[14] Counsel for the Singhs argued that no costs should be payable in the event the plaintiff was successful on its motion, as it was seeking an indulgence of the court. The plaintiff seeks its party and party costs of the motion on the basis that the Singhs should have consented. I find, as did the court in Whapmagoostui, supra, that an order that there be no costs most appropriate in the circumstances. While in hindsight the Singhs should have consented, had the plaintiff diarized the dismissal date and insisted on a mediation date or brought a motion to extend before the dismissal, this motion would not have been necessary.
Conclusion
[15] I grant the plaintiff’s motion and hereby set aside the dismissal order of the registrar.
[16] As part of its motion, the plaintiff proposed a timetable. The parties agreed to the following dates, should the action be restored and those dates are hereby incorporated as follows:
Answers to undertakings/refusals by all parties to be completed by 29 March 2018.
Any motions on refusals by any party to be completed by 28 May 2018.
Mediation to be conducted by 31 October 2018.
Action to be set down for trial by 16 November 2018.
[17] There shall be no order as to costs.
Master Jolley
Date: 1 February 2018