Court File and Parties
Court File No.: CV-13-492705 Date: 2019-04-15 Ontario Superior Court of Justice
Between: JOHN TURNER and 1648710 ONTARIO LTD., Plaintiffs – and – UAP INC. o/a NAPA AUTO PARTS, Defendant
Counsel: Alissa Goldberg, for the Plaintiffs Marc Kestenberg and Jordan Fine, for the Defendant
Heard: March 13, 2019
Before: G. DOW, J.
Reasons for Decision
[1] The defendant, UAP INC. o/a Napa Auto Parts (“Napa”) appeals the decision of Master Brott dated January 17, 2019. The decision allowed the plaintiff, John Turner to extend the deadline to set this action down for trial until January 16, 2020.
Background
[2] John Turner was employed by Napa between December 7, 2012 and June 17, 2013. The Statement of Claim was issued November 13, 2013 in which he seeks a variety of damages arising from his dismissal. The Statement of Defence was served on or about February 10, 2014.
[3] A motion for security for costs with regard to the plaintiff, 1648710 Ontario Ltd. was protracted and not decided until February 3, 2016. This contributed to a consent dismissal of the claim by 1648710 Ontario Ltd. on May 31, 2016. Counsel for Napa acknowledged this explained the delay to that point, almost 2 and one half years after the action was issued.
[4] Thereafter, there is service of an unsworn Affidavit of Documents by each party, a discovery date arranged and abandoned, two offers to settle by Napa, one offer to settle by John Turner with multiple instances of non-responsiveness by counsel for John Turner. This culminates in service of the Motion Record to extend the five year limit applicable under Rule 48.14 on October 31, 2018, or in advance of the November 13, 2018 deadline.
Analysis
[5] The parties agree the standard of review of the Master’s decision is that contained in Zeitoun v. Economical Insurance Group , [2008] O.J. No. 1771 (at paragraph 40 ) “ … the decision will be interfered with only if the master made an error of law or exercised his or her discretion on the wrong principles or misapprehended the evidence such that there is a palpable and overriding error.” To this end, counsel for Napa submitted the Master exercised her discretion or failed to properly apply the law to the evidentiary circumstances. Napa relies on the comments of Justice Tulloch in Faris v. Eftimovski , 2013 ONCA 360 that the two part conjunctive test to determine whether the plaintiff’s action should be dismissed for delay begins with the onus on the plaintiff to show or explain why it should not be dismissed and satisfy the court that there would be no prejudice to the defendant should an extension be granted. In this regard, the Court of Appeal notes (at paragraph 33) that “the purpose of Rule 48 is to enable the court to control the pace of litigation and ensure that disputes are resolved in a time-effective manner”. The quote goes on to indicate (at paragraph 41) that by this juncture in a proceeding, the objective expressed in Rule 1.04(1) to “secure the just, most expeditious and least expensive determination of every civil proceeding on its merits” shifts towards the earlier portion of that statement.
[6] However, the Master addresses the first part of the two step conjunctive test. The submissions of counsel for Napa, as were made before me, are summarized and addressed in paragraphs 9 and 10 of the Master’s reasons. The Master describes the submissions of counsel for Napa on this point as “rigid interpretation of factors which the courts have been told to consider as factors on these motions”. The Master’s conclusion was that the steps taken by the plaintiff in arranging the examination for discovery date, delivering an unsworn affidavit of documents and making an offer to settle in advance of its motion to extend the deadline “demonstrated some pro-activity”. This is what permitted the Master to reach the conclusion the explanation provided for the delay was acceptable.
[7] Counsel for Napa also pointed to the absence of evidence from the plaintiff demonstrating an intention to proceed with the litigation and that the only evidence in this regard was at paragraph 24 of the affidavit of plaintiff’s counsel filed in support of the motion of an intention to proceed with the action going forward. Counsel for Napa relied on the statement by the Court of Appeal in Prescott v. Barbon, 2018 ONCA 504 that (at paragraph 31 ) “a bald statement from the lawyer that it had always been the intention of the appellants to proceed with the action” was inadequate. However, my conclusion on this point is that the Master addressed this requirement in paragraph 10 of the Master’s decision where she described events which had occurred in the litigation and concluded it demonstrated “some pro-activity”.
[8] Were this the only ground for appeal, I would dismiss it. My conclusion is that the Master considered the evidentiary matrix as required and reached a conclusion that the Master was entitled to make. This decision is entitled to deference. Counsel for Napa agreed that my reaching the opposite conclusion on the same evidentiary matrix is not a basis to overturn the Master’s decision.
[9] The second part of the test requires the plaintiff to rebut the presumption that the delay has resulted in prejudice. In this regard, counsel for Napa correctly relied on the statement adopted by the Court of Appeal in Wellwood v. Ontario Provincial Police , 2010 ONCA 386 (at paragraph 62 ) that a plaintiff must overcome “the presumption of prejudice for example by evidence that relevant documents have been preserved, key witnesses are available, certain elements of the claim may not be in issue, and in the case of personal injury, that medical evidence of the progress of the injuries is available. The defendant would then have a burden of adducing actual evidence that there is a substantial risk that, as a result of the delay, a fair trial would not be possible”.
[10] Within the evidentiary matrix of this matter, Napa points to it being required, as a franchising business, of the obligation under the Arthur Wishart Act (Franchise Disclosure) S.O. 2000 c.3 to disclose extant litigation. The Master describes same in paragraph 13 of her reasons and concludes there is no evidence of damages arising from this disclosure. The material before her included affidavit evidence regarding this from an employee of Napa (at paragraph 59 of his affidavit) that any such prejudice is “hard to quantify”, “inconvenient” and that it would only be “preferable” to not disclose. The Master rejects this as prejudice in paragraph 13 of her reasons.
[11] Further, counsel for Napa pointed to a potential witness who left the employ of Napa in 2016 and cannot currently be located despite an effort to do so on LinkedIn as of November 6, 2016. Similarly, the Master was not persuaded there was prejudice arising from this development and stated same in paragraph 14 of her reasons. I would agree with that conclusion.
[12] Given the above, I conclude no palpable or overriding error has occurred. The Master did not exercise her discretion in wrong principles or misapprehend the evidence.
[13] As a result, the appeal by Napa is dismissed.
Conclusion
[14] Counsel for the parties provided me with their Costs Outlines. In this regard, the sum of $2,651.26 inclusive of fees, HST and disbursements was substantially less than the partial indemnity costs claimed by counsel for Napa for conducting this appeal which was in the amount of $17,506.34. As a result, counsel for Napa acknowledged having no issue with and I award the plaintiff, John Turner his costs of this appeal fixed in the amount of $2,651.26 payable by the defendant, Napa, forthwith.
Mr. Justice G. Dow