COURT FILE NO.: 53726/12
DATE: 20180208
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: JOHN BARREY, Plaintiff
AND:
STEPHEN ROBERT AMSTERDAM, KENNETH T. DASHWOOD and PAMELA M. DASHWOOD, Defendants
BEFORE: The Honourable Mr. Justice Robert B. Reid
COUNSEL: J.M.A. Lefebvre, Counsel, for the Plaintiff
J.R. Goit, Counsel, for the Defendant Amsterdam
A-L Cole, Counsel for the Defendants Dashwood
HEARD: January 30, 2018
ENDORSEMENT
[1] The plaintiff moves to set aside the registrar’s administrative dismissal of the action dated October 9, 2015. The request is opposed by the defendants.
[2] The plaintiff asserts two bases for his request: that the dismissal was not permitted because the plaintiff was under a disability; and that in any event the dismissal should be set aside under the particular factual circumstances of this case.
Background:
[3] The plaintiff’s claim arose from two motor vehicle accidents. The first, which occurred June 1, 2010, involved the defendant Amsterdam and the second, which occurred December 24, 2010, involved the Dashwood defendants.
[4] The action was commenced on May 29, 2012. Statements of defence were delivered in July 2012.
[5] Examinations for discovery of the defendants were completed on May 27, 2013.
[6] The examination for discovery of the plaintiff was commenced on May 27, 2013 but not completed, apparently due to the plaintiff’s medical condition. It was scheduled to be continued on October 11, 2013, but again did not proceed because of the plaintiff’s medical condition. The discovery was rescheduled for February 10, 2014, but did not proceed on that day because of the inability of the plaintiff to secure ambulance transportation. On March 20, 2014, an order was made compelling the plaintiff to re-attend on May 28, 2014. The plaintiff did re-attend, but the examination was not able to proceed because of medication consumed by the plaintiff which impaired his ability to understand and respond to the questions.
[7] A status notice was issued on July 9, 2014 and a timetable was ordered at a status hearing on September 30, 2014. The timetable included a requirement for completion of the examination for discovery of the plaintiff by April 30, 2015. The action was to be set down for trial by October 8, 2015.
[8] On November 11 2014, the plaintiff filed a notice of change of lawyer because his previous counsel had retired.
[9] The examination for discovery was rescheduled for March 26, 2015 but could not proceed since counsel for the Dashwood defendants had a scheduling conflict. The discovery was further rescheduled for September 24, 2015.
[10] On June 25, 2015, counsel for the plaintiff secured an order removing him as counsel of record.
[11] The September 24, 2015 examination for discovery was cancelled in advance by the defendants to allow the plaintiff to appoint new counsel, or alternatively file a notice of intent to act in person. That notice was filed on September 26, 2015.
[12] From June through September 2015, the plaintiff made efforts to find alternative counsel but was unsuccessful.
[13] In one of the two related claims by the plaintiff for statutory accident benefits, a motion was brought returnable October 8, 2015 requesting a dismissal of the plaintiff’s SABS action for failing to file a notice of intention to act in person. The plaintiff attended, self-represented, at the hearing and confirmed that he had filed the required notice. The motion was withdrawn. At the time, the plaintiff indicated to the court that he was not sure how many cases were before the court “with his name on them” that day, and asked for confirmation that there were no other matters before the court. The presiding justice quite correctly advised that there was nothing else on the docket before her.
[14] The plaintiff was referred directly from court on October 8, 2015 for mental health treatment. He was hospitalized from that day, initially under a Form 1 and then on a voluntary basis until October 14.
[15] This action was dismissed by the registrar on October 9, 2015.
[16] The plaintiff retained his current counsel in April 2016. Upon making inquiries, counsel discovered on April 19, 2016 that the case had been administratively dismissed. He thereafter contacted counsel for the defendants regarding his intention to bring this motion and eventually an agreed date of August 11, 2016 was set as the return date for the motion. It was adjourned on several occasions for various reasons (including cross-examination of the plaintiff on his affidavit) to January 30, 2018 when it was argued before me.
Provisions of the Rules:
[17] The registrar dismissed the claim herein by order dated October 9, 2015. That order set out in the preamble that: “the plaintiff has not brought this action to conclusion or set it down for trial within the time prescribed by rule 48.14 or such other time as was prescribed by order and has not cured the default.”
[18] The plaintiff relies on subrule 48.14(8) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 which stated that:
Subrule (1) does not apply if, at the time the registrar would otherwise be required under that subrule to dismiss an action for delay, the plaintiff is under a disability.
[19] As well, subrule 48.14 (10) provided that:
The dismissal of an action under subrule (1) may be set aside under rule 37.14.
[20] Subrule 37.14(1) provides as follows:
A party or other person who …(c) is affected by an order of a registrar, may move to set aside or vary the order, by a notice of motion that is served forthwith after the order comes to the person’s attention and names the first available hearing date that is at least three days after the service of the notice of motion.
[21] Subrule 37.14(2) states that, on a motion under subrule (1), the court may set aside or vary the order on such terms as are just.
[22] I note, parenthetically, that the version of rule 48.14 that was in effect when the status hearing occurred has been revoked. The new version of the rule, which came into effect January 1, 2015, provides for dismissal by the registrar where an action has not been set down for trial or terminated following either five years after its commencement or January 1, 2017, whichever is later. As a result, under the new rule, no registrar’s dismissal for delay would have been possible until May 29, 2017.
Was the plaintiff under a disability on October 9, 2015?
[23] The plaintiff alleges that based on his referral for mental health issues from court on October 8, 2015 and the fact of his subsequent hospitalization through to October 14, 2015, he was obviously under a disability at the time of the registrar’s order on October 9.
[24] The plaintiff self-identifies in his affidavit as: “markedly disabled both physically and mentally.”
[25] Hospital records from the period of hospitalization in October 2015 referred to reported suicidal and homicidal ideations. He was assessed as suffering from a major depressive disorder. The attending psychiatrist determined on October 13, 2015 that the plaintiff was “capable within the meaning of the Healthcare Consent Act of consenting to his treatment.”
[26] A psychologist, writing on behalf of the plaintiff as regards his SABS claim on March 8, 2016, identified “significant and persistent physical, emotional and cognitive difficulties”.
[27] A capacity assessor, in an assessment dated November 11, 2016, concluded that the plaintiff did not have decisional capacity and recommended the appointment of a case manager and a litigation guardian. She indicated that her conclusions were based on a meeting with the plaintiff on October 18, 2016 and “does not address past or future capacity.”
[28] Subrule 1.03(1) defines “disability” where used in respect of a person as:
(b) mentally incapable within the meaning of section 6 or 45 of the Substitute Decisions Act, 1992 in respect of an issue in the proceeding, whether the person has a guardian or not.
[29] Section 6 of the Substitute Decisions Act, 1992, defines “mentally incapable” as follows:
A person is incapable of managing property if the person is not able to understand information that is relevant to making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.
[30] Section 45 of the Substitute Decisions Act, 1992, defines “mentally incapable” as follows:
A person is incapable of personal care if the person is not able to understand information that is relevant to making a decision concerning his or her own health, nutrition, shelter, clothing, hygiene or safety, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.
[31] Subrule 7.01(1) provides that unless the court orders or a statute provides otherwise, a proceeding shall be commenced, continued or defended on behalf of a party under disability by a litigation guardian.
[32] In this case, no litigation guardian has been appointed.
[33] There is ample evidence to indicate that the plaintiff was mentally unwell on or about October 9, 2015. In fact, he was in hospital for mental health treatment on that day when this action was administratively dismissed.
[34] In general, the rules provide a variety of protections when a person is under a disability, including the prevention of administrative dismissal under rule 48.14. However, the rules are also specific about how a disability is defined, and the necessary consequences when that status is established.
[35] In this case, the plaintiff has not been shown by any contemporaneous medical opinion or court order to meet the definition of disability under the rules. As such, he is not entitled to the protection afforded by subrule 48.14(8). In any event, it is not clear that the registrar acted on the authority of subrule 48.14(1) which appears to be a prerequisite for the application of subrule 48.14(8).
Should the court exercise its discretion to set aside the dismissal order?
[36] The parties do not disagree that the key factors to be considered on a motion to set aside a dismissal for delay were set out in a decision of Master Dash in Reid v. Dow Corning, reported that [2001] O.J. No. 2365. Those factors were confirmed by the Ontario Court of Appeal in Scaini v. Prochnicki, reported at 2007 ONCA 63. They include an explanation for the litigation delay, inadvertence in missing the deadline, prompt action in bringing the motion and lack of prejudice to the defendant.
[37] In considering those factors, a contextual approach is required. As set out in Scaini at paragraph 24: “The key point is that the court consider and weigh all relevant factors to determine the order that is just in the circumstances of the particular case.” There is no requirement that the plaintiff satisfy each of the four criteria set out in Reid as a prerequisite to an order setting aside the administrative dismissal. Nor are the four criteria comprehensive.
[38] A balancing of the interests of the parties must be made. That balancing of interests relates, on one hand, to the general principle of the Rules set out in rule 1.04 that: “these rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.” [Emphasis added]. On the other hand, there is a public interest in having disputes resolved in a timely way. Parties against whom court actions are brought should not languish indefinitely in the shadow of litigation, and the one who commences the proceeding bears primary responsibility for its progress toward resolution.
Explanation for litigation delay:
[39] The relevant time period to be considered under the first of the four Reid factors runs from the commencement of the action to the dismissal order. In this case, that period is from May 29, 2012 to October 9, 2015.
[40] No objection was taken by counsel for the defendants to the period leading up to the initial examinations for discovery on May 27, 2013. The case was proceeding reasonably.
[41] Since the examination for discovery of the plaintiff was incomplete on May 27, 2013, it was rescheduled for October 11, 2013 and then to February 10, 2014. On all three occasions, the failure to proceed on the part of the plaintiff was apparently due to either his medical condition or related transportation needs. Although he re-attended on May 28, 2014, once again he was not in a medically fit condition to proceed. By that time, two years had elapsed from the commencement of the action. I am satisfied with the explanation for delay provided by the plaintiff to that point.
[42] The status notice and resulting timetable ordered on September 30, 2014 were required because the plaintiff had not set the action down for trial within the period mandated by the rules, which at the time was two years after the first defence was filed.
[43] The defendants, who cannot be faulted for their attempts to have the matter proceed within the timetable set, arranged to re-schedule the plaintiff’s examination for discovery to March 26, 2015. Although there was a gap of 10 months between the discovery dates in May 2014 and March 2015, I cannot attribute the delay to the plaintiff, since it was the defendants who made the arrangements.
[44] As noted, the discovery in March 2015 could not proceed because of the trial schedule of counsel for the Dashwood defendants. The next scheduled date for discovery as chosen by the defendants was September 24, 2015. Once again, that date was cancelled by the defendants quite reasonably given the fact that the plaintiff was self-represented at the time and attempting to retain new counsel. The rescheduling in March and September 2015 by the defendants, and the plaintiff’s search for new counsel, explain the delay from March 2014 up to the date of the registrar’s order on October 8, 2015.
[45] For the reasons set out above, I conclude that the plaintiff has adequately explained the delay that led to the dismissal order.
Inadvertence in missing the deadline:
[46] It is undisputed that the plaintiff always intended to proceed with his action against the defendants. This was clear from his engagement of counsel, examinations for discovery of the defendants, subsequent attendances through counsel including the Status Hearing, his search for new counsel, and his comments at court in response to a motion in one of the companion SABS actions on October 8, 2015. As well, his intention was clearly set out in his affidavit in support of this motion and not challenged by the defendants.
[47] At the time of the dismissal order, the plaintiff was self-represented. He attempted to ascertain at motions court on October 8, 2015 whether any other matters were before the court. In his cross-examination, the plaintiff was vague about whether he was specifically advised of the October 8 deadline, but I accept that he received a letter from his counsel on June 4, 2015 confirming both the September 24, 2015 discovery date and the need to have the action set down for trial by October 8, 2015.
[48] Based on the combination of the plaintiff’s intention to proceed with the action, his self-represented status, his attempts to retain other counsel, his personal attendance and inquiry at motions court on October 8, 2015 and his obvious mental health issues at that time, I conclude that it was inadvertence on the part of the plaintiff that led to his missing the October 8, 2015 deadline for setting the action down for trial.
Promptly moving to set aside the order:
[49] The third of the four Reid factors is whether the party moved promptly to set aside the dismissal order once it came to the party’s attention.
[50] From the date of the dismissal order until April 2016, the plaintiff was self-represented. He then retained his current counsel.
[51] Based on the provisions of the rules, it is likely that the plaintiff received a copy of the dismissal order dated October 9, 2015 from the court by regular mail to his last known address. In addition, counsel for Dashwood corresponded with the plaintiff on October 15, 2015 by letter enclosing a copy of the order. In the cross-examination of the plaintiff on his affidavit filed in support of this motion, the plaintiff said that he believes he received a notice from the court but did not recall receiving the letter from counsel for Dashwood.
[52] No steps were taken by the plaintiff to set aside the order during the period he was self-represented.
[53] Once retained, current counsel for the plaintiff became aware on April 19, 2016 of the dismissal order. He contacted counsel for the defendants by letter dated May 9, 2016 giving notice of his intention to move to set aside the dismissal order and requested counsel’s consent. That consent was not received and, as a result, the plaintiff brought this motion dated July 19, 2016 returnable, as arranged with counsel for the defendants, on August 11, 2016.
[54] The plaintiff did not move promptly once the dismissal order came to his attention in October 2015. He was experiencing mental health issues, at the very least around the time the order was made, and was looking for a lawyer to represent him. About five months passed before counsel was retained. Approximately three more months elapsed from the time counsel became aware of the order and the service of this motion. Clearly, that eight months’ time was outside the timetable mandated by subrule 37.14(1): the motion was not served forthwith after the order came to the plaintiff’s attention and did not name the first available hearing date that was at least three days after the motion was served.
[55] Although, in my view, the plaintiff did not move promptly to set aside the order, I do not consider that any delay from the original return date of this motion on August 11, 2016 to the date of hearing is relevant since it would clearly have been possible for the defendants to insist that the matter be heard by the court promptly.
Prejudice or lack of prejudice to the defendants:
[56] The plaintiff bears the onus of satisfying the court that the defendants have not suffered any significant prejudice in presenting their case at trial as a result of the plaintiff’s delay, and prejudice is often a prominent consideration amongst the Reid factors.
[57] Writing for the Ontario Court of Appeal in MDM Plastics Limited v. Vincor International Inc., reported at 2015 ONCA 28, van Rensburg J.A. stated at paragraphs 25 and 26 as follows:
The prejudice that the motion judge or master must consider is to the defendant’s ability to defend the action that would “[arise] from steps taken following dismissal, or which would result from restoration of the action following the registrar’s dismissal.” [Citation omitted.]
Judges and masters must balance this prejudice to the defendant against the prejudice to the plaintiff from having the case dismissed. [Citation omitted.]
[58] There was no evidence of actual prejudice to the defendants in their ability to defend the action. Of course, it is not necessary for the defendants to show actual prejudice.
[59] Presumed prejudice may be found when the principle of finality is engaged in the defendants’ favour. This is part of the contextual balancing of interests as between the parties that is required. Justice Sharpe, writing for the Ontario Court of Appeal in Marché D’Alimentation Denis Theriault Ltée et al. v. Giant Tiger Stores Ltd., reported at (2007) 2007 ONCA 695, 87 O.R. (3d) 660, acknowledged at paragraph 34 that where a defendant would not be unfairly prejudiced should the matter proceed for resolution on the merits, an indulgence for the plaintiff is generally favoured. However, he identified in paragraph 37 that: “Finality, like the avoidance of unnecessary delay, is a central principle in the administration of justice.” He confirmed other case references to the effect that the law rightly seeks a finality to litigation and that finality is a compelling consideration. He also wrote at paragraph 38 that a “party’s entitlement to rely on the finality principle grows stronger as the years pass.” I note that in that case, almost four years had passed after the order was made dismissing the action for delay before a motion was brought to set the order aside and that for the 2½ years before that, the plaintiff had proceeded in what Justice Sharpe described as a “desultory fashion”.
[60] In this case, the delay did not even remotely approach the time involved in the Giant Tiger case. The dismissal order was made less than 3½ years after the action was commenced. I have already reviewed the timetable that the case followed, much of which was unremarkable, and responsibility for the delay is shared between the plaintiff and the defendants. The time between the dismissal order and the plaintiff’s motion, brought in the circumstances that I have already identified, was such that the defendants’ right to rely on the finality principle did not have much of a chance to “grow” into a compelling factor. This is particularly so in the context, of which the defendants were well aware, that the plaintiff was self-represented at the time of the order, was suffering physical and mental health issues and also was apparently seeking counsel to represent him.
[61] There was little information provided by either party as to whether the particular circumstances of the case required, as to either liability or damages, the detailed memory of witnesses. The Dashwood defendants submitted that during the cross-examination on his affidavit, the plaintiff admitted to having difficulty separating the physical effects of the injury suffered in the two separate motor vehicle accidents. However, this concern is not unusual in personal injury litigation, nor is there any suggestion that the problem was exacerbated by the passage of time between the dismissal order and the motion to set it aside. Counsel for the plaintiff submitted that the key issue in the litigation relates to the plaintiff’s medical condition and in an affidavit filed in support of the plaintiff’s motion, it was deposed that the plaintiff has obtained and secured all of the possible medical evidence including background information. As such, it would appear that all medical documentation remains available. The deponent was not cross-examined on that information.
[62] No submissions were made by the defendants on the issue of liability and it is noteworthy that the evidence of the defendants as to the circumstances of the accident would have been fully canvassed in their examinations for discovery, all of which took place on May 27, 2013.
[63] The defendants submitted that prejudice against them could be presumed based on the expiry of the relevant limitation periods. It appears that the limitation periods expired, in the case of the first action, days after the statement of claim was issued and in the case of the second action, after approximately seven months. The prejudice is said to arise because the previously “live” action died as a result of the dismissal order. In my view, it is the plaintiff who clearly suffers prejudice if the otherwise valid action is finally ended without adjudication on the merits. The so-called prejudice to the defendants arises, if the dismissal order is set aside, from being deprived of the ability to rely on the dismissal order as a final resolution. The issue has been discussed by the Ontario Court of Appeal in several decisions including Wellwood v. Ontario Provincial Police reported at 2010 ONCA 386 and Finlay v. Van Paassen[^1] reported at 2010 ONCA 204. In Finlay the dismissal order was set aside and it was significant that the lawsuit had proceeded without unreasonable delay before the dismissal order and that the conduct of the delinquent litigant in not moving the litigation forward was not deliberate. That was distinct from the factual situation in Wellwood. I have already identified that, in my view, responsibility for some of the passage of time which led to the dismissal order rests at the feet of the defendants. Based on my factual findings as to the amount and responsibility for delay, I consider that presumed prejudice to the defendants through the expiry of the limitation periods is of minor import.
[64] I am satisfied that the plaintiff has adequately responded to the issue of presumed prejudice to the effect that the defendants have not been subject to any significant prejudice in presenting their case at trial as a result of the plaintiff’s delay leading to the dismissal order.
[65] It is surprising that the parties were not able to deal with this motion in less than the 17 months between the first return date on August 11, 2016 and January 30, 2018 when the motion was finally heard. The August 11, 2016 date was agreed by the parties but by correspondence dated August 2, 2016, counsel for the Dashwood defendants requested to have the date adjourned for 60 days to allow more time to “complete the necessary steps”. The adjournment was said to be on the understanding that another adjournment might be requested if the defendants were not able to complete all necessary steps prior to the new return date. Apparently, counsel for the plaintiff was unable to deal with the matter between mid-August and the end of December 2016 as a result of a serious medical issue. The date of March 10, 2017 was then set by the defendants to cross-examine the plaintiff on his affidavit. On May 31, 2017, plaintiff’s counsel requested the defendants’ availability for argument of the motion and eventually an agreeable date of November 23, 2017 was established. Because of the time required to hear the motion, it was then adjourned to the week of January 29, 2018. One would have thought that if the defendants were concerned about prejudice, efforts would have been made to significantly shorten the time to the ultimate hearing of this motion.
Contextual analysis:
[66] As I have reviewed the four Reid factors, I conclude that the plaintiff has provided a satisfactory answer to all but the issue of promptly moving to set aside the order from the date that it came to his attention. All four factors do not have to be established in the plaintiff’s favour for the motion to be successful.
[67] The overall context of this case includes the serious physical and mental health issues experienced by the plaintiff, allegedly from the two motor vehicle accidents which are the subject of the action. Those issues certainly tie into the delay occasioned by the rescheduling of the plaintiff’s examination for discovery. They may well have a connection with the June 2015 removal of counsel from the record which led to the self-represented status of the plaintiff in the months leading up to the dismissal order and to his difficulty in retaining new counsel. There does not appear to be any deliberate delay or misfeasance on the part of the plaintiff or his counsel. Defence counsel cannot avoid all responsibility for delay based on their actions, to which I have already referred, and of which I am not critical. However, as a matter of fairness, they cannot benefit from delay which they either caused or in which they acquiesced.
[68] In conclusion, the court’s decision about granting the relief requested under rule 37.14(2) must balance competing factors to ensure an order is made that is just in the circumstances.
[69] I am satisfied that it is appropriate to set aside the registrar’s dismissal order of October 9, 2015, accepting that the case should be allowed to continue to a conclusion on its merits. There will be in order accordingly.
[70] The granting of this order is an indulgence for the plaintiff and not an endorsement of slow progress in the action which has now been outstanding for about five years and eight months. It needs to proceed to a conclusion without delay. As a result, the parties must file an agreed timetable, including necessary steps up to the matter being set down for trial, which I will endorse as an order of the court. That timetable must be filed by March 19, 2018, failing which the parties are to appear before me to make submissions, following which a timetable will be ordered.
Costs:
[71] I encourage the parties to resolve the issue of costs consensually. In the event that they are not able to do so, I am prepared to receive written submissions according to the following timetable:
• The plaintiff is to serve the defendants with written costs submissions and a bill of costs on or before February 23, 2018.
• The defendants are to serve the plaintiff with written costs submissions and a bill of costs on or before March 9, 2018.
• The plaintiff is to serve the defendants with any responding submissions on or before March 16, 2018.
• All submissions are to be filed with the court no later than March 19, 2018. If submissions are not received by that date, or any agreed extension, the matter of costs will be deemed settled.
Reid J.
Date: February 8, 2018
[^1]: Incorrectly indexed as Finlay v. Paassen