Court File and Parties

COURT FILE NO.: CV-12-462477

MOTION HEARD: 20180129

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Lisa Robyn Mandel, Plaintiff

AND:

Jane Doe, Absolute Traditional Thai Massage, Canadian National Exhibition, Exhibition Place and City of Toronto, Defendants

BEFORE: Master Jolley

COUNSEL: John Lykos, Counsel for the Moving Party Plaintiff Jonathan Miller, Counsel for the Responding Party Defendant City of Toronto

HEARD: 29 January 2018

REASONS FOR DECISION

[1] The plaintiff brings this motion to set aside the order of the registrar made 21 September 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.

(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] While the parties agree that the motion was brought promptly, they disagree on all the other criteria.

Relevant Facts

[4] This action arises out of an incident that occurred on 31 August 2010. The plaintiff alleges she was injured while receiving a massage from Jane Doe, an employee or contractor of the defendant Absolute Traditional Thai Massage, on premises allegedly owned by the remaining defendants. She commenced her action on 30 August 2012. An attempt at discoveries in August 2013 was not fruitful and the action has not proceeded beyond the pleadings stage in the last four and a half years.

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

Reasonable Explanation for the Delay

[6] The plaintiff alleges that the progress of the action was complicated by the coverage position taken by State Farm, insurer of Absolute Traditional Thai Massage. The plaintiff was advised in November 2013, more than a year after pleadings closed, that State Farm was denying coverage. An application on the coverage issue was brought more than a year after the denial of coverage, in January 2015. The application was subsequently adjourned and the plaintiff could no offer no explanation as to why. While Mr. Pappas deposes that it was another lawyer in the firm who had carriage of the file, there appears to have been no attempt to contact that lawyer to determine what had happened with this application. Nor was there a satisfactory explanation as to why this issue precluded the plaintiff from examining the defendants for discovery or being examined herself.

[7] Discoveries had been scheduled to proceed on 27 August 2013. Plaintiff’s counsel deposes in his affidavit in support of this motion that they were cancelled ‘due to complications in this matter and some unforeseen circumstances”. There is no explanation as to what the complications or the unforeseen circumstances were. There is evidence that counsel for the City of Toronto took the position a week prior to those discoveries that the plaintiff had not delivered an affidavit of documents, the co-defendant had not delivered a pleading or an affidavit of documents and the City’s representative was not available until fall. The City advised that it was not prepared to proceed to discoveries until those issues were rectified. Plaintiff’s counsel responded a few days later advising that they had sent the productions and a draft affidavit of documents in July 2013 but enclosed further copies. There the matter sat.

[8] It was primarily the City that initiated efforts to move the matter forward or at least inquire into its status from time to time. There was one voicemail from plaintiff’s counsel in October 2013 and one email in November 2014 requesting a conference call. There was no answer to the City’s email reply sent a day later in November 2014. Thereafter was the plaintiff’s application on coverage, noted above, which was ultimately adjourned. The plaintiff did not respond to further follow ups from the City in December 2015 and again in August 2016. The only response to the City’s further November 2016 follow up was an email that Pappas Law was no longer acting for the firm and erroneously advising that another firm had assumed carriage. The City’s March 2017 letter also failed to get the plaintiff’s lawyers’ attention and the defendant, reasonably assuming the matter had been abandoned, closed its file. The City gave the plaintiff every opportunity to move the matter forward.

[9] As for the remainder of the delay, plaintiff’s counsel takes that where was confusion as to who was representing the plaintiff when the firm of Pappas Romero Professional Corporation closed on 30 June 2016. In September 2016 the plaintiff went to another firm for advice but nothing came of that meeting. It was not until August 2017 that the plaintiff met Mr. Pappas and “retained” Pappas Law Firm. This is difficult to understand given Mr. Pappas was and remained counsel of record from the outset. In any event, it could not have been an excuse to do nothing on the file for a period more than a year. It also does not explain why the firm took no action once it was “retained” in August 2017 when it knew or ought to have known, as counsel throughout, that a dismissal was imminent.

[10] Thereafter nothing further was done and a month later the action was dismissed.

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

Inadvertence in missing the deadline

[12] The plaintiff deposes that it was never her intention to have her action delayed or discontinued. She made numerous attempts to contact Pappas Romero to get updates and could never get a proper update. She was not cross examined on her affidavit. I accept that she did not intend to abandon her action as evidenced by her attempt to get advice from another firm in August 2016 when she was not getting information from Pappas Romero. I accept that the deadline was missed inadvertently, that is, not intentionally.

Prejudice to the defendant should the dismissal order be set aside

[13] The plaintiff alleges there will be no prejudice to the defendant should be action proceed as the City has always been aware of the plaintiff’s damages and the reason for the delay.

[14] The plaintiff deposes that her memory has not faded since August 2010. She has kept track of her health care providers and is continues to receive treatment.

[15] While this may be, other than a report from the Rothbart Pain Management Clinic in April 2013, she has not provided these records to the defendant. She has not provided a sworn affidavit of documents. The draft she did provide lists no income information although she has an income loss claim and no documentation relating to her claim for care costs or household upkeep. The only reason the defendant is aware of the plaintiff’s alleged damages is through the statement of claim.

[16] The defendant argues that it is particularly prejudiced due to the lack of information about Jane Doe. It has lost the ability to examine the plaintiff for evidence to attempt to locate Jane Doe and obtain her evidence. In response, the plaintiff deposes that she could never have identified Jane Doe. She did not know her name and she did not speak English. She had not seen her in her prior years’ attendances at the massage booth. Her information now is as good as it would have been had she been examined in 2013 or any time prior to the dismissal order.

[17] The defendant City of Toronto was aware upon receipt of the claim in August 2012 that the plaintiff could not identify the person who provided the massage. The defendant knew the individual was an employee or contractor of Absolute Traditional Thai Massage, with whom it had an exhibitor contract. While a defendant does not have an obligation to move a matter forward, here, when it knew the plaintiff could not identify the massage provider, it could reasonably have considered conducting an investigation of or with its contracting party Absolute Traditional Thai Massage in order to identify the massage provider and obtain a statement.

[18] Further, the City argues that floor manager at the CNE no longer works there and cannot be located. The security guard who completed the incident report now has no recollection of the incident beyond his August 2010 report. While the passage of time is most unfortunate, these witnesses were not present at the incident and cannot speak the actions of Jane Doe or any issue around causation. The security guard was involved only in obtaining second or third hand information from the floor manager. He did not see the plaintiff and, as a result, did not likely have relevant information, even had he been examined at any point prior to the dismissal order. The floor manager may have seen the plaintiff but he could have been asked by the City about the incident when the claim was served and further details obtained then, if available. Had the matter been set down in September 2017 before being dismissed, the security guard would have the same lack of memory and the floor manager would also be missing.

[19] The plaintiff has rebutted the presumption of prejudice and the defendant has not established that it will suffer actual prejudice should the dismissal order be set aside.

Contextual Approach

[20] As noted by the Court of Appeal in Scaini v. Prochnicki 2007 ONCA 63, while the Reid factors are of central importance, “a contextual approach to this question is to be preferred to a rigid test requiring an appellant to satisfy each of a fixed set of criteria … What is important is that the analysis be contextual to permit the court to make the order that is just.”

Conclusion

[21] There has been egregious delay without reasonable explanation. On the Reid factors, I find that there is no prejudice to the City should be dismissal order be set aside and that the deadline was inadvertently missed. There is a preference in the court for matters to be determined on their merits and in the circumstances of this case, I find that an order permitting the matter to proceed is just.

[22] To ensure a timely progression, I direct that the plaintiff shall forthwith deliver her sworn affidavit of documents and shall make immediate efforts to obtain relevant documents from third parties so that her examination for discovery can take place as soon as possible.

[23] The defendant is entitled to its costs both of this attendance and the attendance before Master Brott on 14 December 2017. The plaintiff shall pay the City of Toronto its costs on a party and party basis in the amount of $6,500 inclusive of HST and disbursements within 30 days of this order.

Master Jolley

Date: 2 February 2018