Klein v. Krek, 2019 ONSC 1711

COURT FILE NO.: CV-11-106-00 DATE: 20190319 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

William Klein and Dianne Klein Plaintiffs – and – Alex G. Krek and Francka Krek and Director, Ministry of the Environment (Ontario) and Unifund Assurance Company and Briggs Canada Limited and Briggs Environmental Canada Ltd. Defendants

Counsel:

Sean Dewart and Rebecca Glass, as agents for Eric Gillespie, counsel for the Plaintiffs Paul Omeziri, counsel for Alex G. Krek and Francka Krek. No one else appearing.

HEARD: February 25, 2019

RULING ON MOTION TO DISMISS FOR DELAY

BOSWELL J.

Overview

[1] Twenty-nine years ago a fuel tank began to leak on the cottage property of Alex and Francka Krek at Lake-of-Bays, Ontario. In all, some 3500 litres of home heating oil leaked out of the tank and into the surrounding soil.

[2] The spill was cleaned up and some contaminated soil removed. Concerns remained, however, about the prospect of migration of the contaminant to the lake, to neighbouring properties and to the underlying water table. The neighbouring properties potentially impacted by the spill include the Knoppke property to the immediate north of the Kreks’ lands, as well as the Fischer, Klein and Sickinger properties, in that order, to the south of the Kreks’ lands.

[3] The spill spawned a variety of litigation including claims by Mr. Knoppke, Mr. and Mrs. Sickinger and Mr. and Mrs. Klein.

[4] This particular action – the Kleins’ action – was commenced in October 2011, some eight and a half years ago. It is now nearly three decades since the spill occurred. The parties have yet to complete the discovery process. A number of timetables have been fixed to move the matter forward. They have not been adhered to. The Kreks argue that enough is enough. The time has come that justice demands that the Kleins’ claim be dismissed for delay.

[5] The Kleins oppose the relief sought.

[6] These reasons explain why I am not prepared to dismiss the Kleins’ action at this time. They also explain why the timetable I am establishing is a last chance opportunity for the Kleins to move this action along.

[7] A short history of proceedings will provide the necessary background to this ruling.

The History of the Litigation

[8] Dieter Knoppke commenced a claim against Alex Krek in 1992. Mr. Knoppke’s action was resolved in 1997. The resolution included a monetary settlement of $750,000.

[9] Thomas and Ingeborg Sickinger commenced a claim against Alex Krek and Dieter Knoppke in 2000. Their action remains outstanding. Examinations for discovery were conducted in 2002 and 2004. A long period of apparent inactivity followed, though there was a judicial case conference in 2006. Eventually a mediation was conducted in October 2013, with a second session in December 2014. The Kreks moved in January 2015 to dismiss the action for delay.

[10] The delay motion was unsuccessful. Justice Mulligan found that while the delay was long, it was not unreasonable. He cited the parties’ efforts to mediate and an ongoing “companion” proceeding they were involved in with the Ministry of the Environment and Climate Change (“MOECC”) to support the conclusion that the long delay was adequately explained. A timetable was established to move the matter forward.

[11] The Kleins commenced this action against the Kreks in October 2011. They commenced a separate action against the MOECC in 2012.

[12] In July 2016, Alex Krek commenced a claim against Dieter Knoppke. Mr. Krek seeks damages from Mr. Knoppke based on MOECC surveillance that captured Mr. Knoppke apparently pouring heating fuel down the Sickingers’ well in May 2016.

[13] In October 2017 the Kreks moved to dismiss the Kleins’ action on the basis that the plaintiffs’ conduct demonstrated a disdain for the court process. The motion came before Wood J. who dismissed it by order dated October 16, 2017. He opted to order a fixed timetable instead.

[14] In the course of his written ruling, Wood J. held that the reasons put forward by the Kreks in support of their motion fell “far short” of the type of conduct that would lead to a dismissal of an action. He further found, like Mulligan J. in the Sickenger action, that the issues involved in this proceeding were being actively litigated in another forum, namely the MOECC proceedings. He specifically held that “the plaintiffs’ delay until recently has been reasonable and not such as would attract the extreme penalty of a dismissal of the case.”

[15] The timetable established by Wood J. included the following terms:

• Plaintiffs’ affidavit of documents 60 days (mid-December 2017)
• Examinations for discovery 120 days (mid-February 2018)
• Undertakings 180 days (mid-April 2018)
• Plaintiffs’ experts’ reports 240 days (mid-June 2018)
• Defendants’ experts’ reports 300 days (mid-August 2018)
• Action to be set down for trial 240 days (mid-June 2018)

[16] No party appealed the order of Wood J. The timetable established by his order, has not, however, been adhered to.

[17] Discoveries were initially scheduled for the week of January 8, 2018. At the request of the Kreks, however, they were postponed to January 18 or 19, 2018. Thereafter, at the request of the Kleins and agreed to by the Kreks, they were adjourned to March 12, 13 and 16, 2018.

[18] On January 24, 2018 the parties obtained an order, on consent, from Mulligan J. amending the timetable fixed by Wood J. in October 2017. The new timetable provided as follows:

• Plaintiffs’ affidavit of documents 60 days
• Examinations for discovery by March 31, 2018
• Undertakings by May 31, 2018
• Plaintiffs’ experts’ reports by September 30, 2018
• Defendants’ experts’ reports by November 30, 2018
• Action to be set down for trial September 30, 2018

[19] The Mulligan J. order further provided that the registrar “shall dismiss this action for delay with costs unless the action has been set down for trial or terminated by any means on or before the new deadline for setting the action down for trial which shall be September 30, 2018.”

[20] Unifund Assurance Company, another party defendant to these proceedings, sought an adjournment of the discoveries scheduled in March 2018 because they were awaiting disclosure from the MOECC and the OPP. All parties consented and the discoveries were rescheduled to June 26, 27 and 28, 2018.

[21] Another consent order was obtained to vary the timetable originally set by Wood J. in October 2017 and varied by Mulligan J. in March 2018. By order of Wood J. dated May 10, 2018, the following timetable was set:

• Plaintiffs’ affidavit of documents 60 days
• Examinations for discovery by July 31, 2018
• Undertakings by August 31, 2018
• Plaintiffs’ experts’ reports by September 30, 2018
• Defendants’ experts’ reports by November 30, 2018
• Action to be set down for trial September 30, 2018

[22] The provision regarding an administrative dismissal by the registrar should the matter not be set down for trial by September 30, 2018 was dropped from the order.

[23] Between March and June 2018 counsel to the Kleins and Kreks, respectively, argued over the issue of whether the Kreks’ disclosure was complete. The Kreks served a revised affidavit of documents on June 21, 2018. The Kleins’ lawyer continued to take the position that it was incomplete and he refused to produce his clients for the June discoveries.

[24] In response, the Kreks obtained a date for the hearing of a motion to dismiss the Kleins’ claim for delay. The date they were given was in late October 2018, in Bracebridge. In the meantime, they rescheduled examinations for discovery for September 10-11, 2018. Their counsel advised the Kleins’ counsel that the motion to dismiss would be withdrawn if the Kleins attended the scheduled examinations. They did not attend. Instead, their counsel continued to take the position that the Kreks’ affidavit of documents was incomplete.

[25] The motion to dismiss for delay could not be heard in October. It was eventually adjourned to a special motions date before me on February 25, 2019.

Current Status of the Parties

[26] Mr. Sickinger died on May 31, 2016.

[27] On February 21, 2018 Mr. Knoppke entered a guilty plea to a charge of poisoning the Sickengers’ well.

[28] Mr. Krek is just shy of 83 years old. He has significant health problems. The litigation and, in particular, its longevity, have been a source of significant physical, emotional and financial strain on him.

The Governing Principles

[29] The Kreks’ motion is brought pursuant to Rule 24.01(1)(c) of the Rules of Civil Procedure, which provides as follows:

24.01 (1) A defendant who is not in default under these rules or an order of the court may move to have an action dismissed for delay where the plaintiff has failed… (c) to set the action down for trial within six months after the close of pleadings.

[30] The test to be applied to motions to dismiss for delay is well-settled and straightforward. The controlling authority is Langenecker v. Sauvé, 2011 ONCA 803. There, Doherty J.A., following the English authority of Allen v. Sir Alfred McAlpine & Sons, Ltd. [1968] 1 All E.R. 543 at 55, held that a plaintiff should be given an opportunity to remedy the default and move the case forward, unless:

(a) the default has been intentional and contumelious, meaning the plaintiff has shown disdain or disrespect for the court process; or, (b) the delay is inordinate, inexcusable and has created a substantial risk that a fair trial of the live issues will no longer be possible.

[31] In this instance, the Kreks’ motion is grounded in the second prong. In the result, the disposition of the motion depends on the court’s views as to whether the obvious delay in this case is inordinate, inexcusable and has substantially impaired the ability to conduct a fair trial.

Inordinate delay

[32] The determination as to whether a delay is “inordinate” is made simply by looking at the length of time that has passed since the commencement of the proceedings. Each case must be looked at contextually, as some cases will inevitably take longer than others to prosecute given their nature. That said, we operate now in a litigation climate where complacency is no longer tolerated: see R. v. Jordan, 2016 SCC 27. There is “a strong public interest in promoting the timely resolution of disputes… Litigants are entitled to have their disputes resolved quickly so that they can get on with their lives”: Marché D'Alimentation Denis Thériault Ltée v. Giant Tiger Stores Ltd., 2007 ONCA 695 at para. 25.

Inexcusable delay

[33] An inexcusable delay is one that lacks a reasonable and persuasive explanation. The court will examine any explanations offered for discrete delays, but will also maintain an eye on the overall delay and whether there is a reasonable excuse for it.

[34] When considering the excuses on offer, the court is guided by two fundamental principles, which must be carefully balanced in each case. First, civil cases should wherever possible be decided on their merits. Second, the Rules, which seek to secure the most just, expeditious and least expensive resolution of civil disputes, can only achieve their goal if they are respected and enforced. See 1196158 Ontario Inc. v. 6274013 Canada Ltd., 2012 ONCA 544, at para. 18.

Prejudice

[35] Where the court concludes that there has been an inordinate delay, prejudice to a defendant and the ability to conduct a fair trial will be presumed: Sickinger v. Krek, 2016 ONCSA 459 at para. 30. As Doherty J.A. observed in Langenecker, as above at para. 11, prejudice is inherent in long delays. Memory is fragile and it fades and fragments over time. The availability of witnesses changes as people move away, become ill or die. Experts may retire. Documents may be lost.

[36] Rule 24.01(2) now incorporates, by reference to Rule 48.14(1), a five year presumptive ceiling to set an action down for trial. The court registrar is directed by Rule 48.14(1) to administratively dismiss an action for delay if it is not set down for trial within five years. Similarly, under Rule 24.01(2), the court is mandated to dismiss an action for delay if it has not been set down for trial within five years, unless the plaintiff demonstrates that dismissal would be unjust.

The Parties’ Positions

[37] The Kreks’ position is relatively straightforward. They assert that, at this point, it is axiomatic that the delay in this case is inordinate. There is no excuse for the delays in their view. The plaintiffs have simply failed to move the matter forward with any sense of purpose, design or dispatch. They say they have been prejudiced in the meantime. One witness, Mr. Sickinger, has died. Another, Mr. Knoppke, has interfered with the process of justice by intentionally contaminating the Sickingers’ well. And Mr. Krek is now elderly and in frail health.

[38] The Kreks argue that the consent timetable ordered by Mulligan J. in March 2018 set a hard deadline of September 30, 2018 for the action to be set down for trial. Indeed, that order required the registrar to dismiss the action for delay should the September 30, 2018 deadline not be met. The Kreks assert that the intention was for that hard deadline to remain in the subsequent revised timetable set by order of Wood J. on May 10, 2018.

[39] The Kreks do not agree that their productions have been incomplete. They say that the Kleins are pushing them for production of documents from other proceedings – proceedings the Kleins were either directly involved in or otherwise have their own independent access to. In any event, the timetables have been clear. The onus is on the plaintiffs to move their claim along. They have failed to do so and have failed to comply with the established timetables. They have been intransigent about productions at their peril.

[40] The Kleins take the position that they have acted reasonably throughout the litigation. Their position was, they say, accepted by Wood J. in his ruling made in October 2017. Given the substance of that ruling, they contend that they need only explain the delay since the fall of 2017.

[41] Since the order of Wood J. there have been further delays. But those delays were not the fault of the plaintiffs. They argue that numerous revised timetables have been set, on consent. They have been actively litigating and have taken a reasonable position with respect to the Kreks’ productions.

[42] They argue that the delays in prosecuting the case will not prejudice the ability to conduct a fair trial. This is a case that is not based on witness recollections. It will be largely based on science and expert reports.

[43] They submit that the motion should be dismissed.

Discussion

[44] The litigation following the oil spill on the Krek property is verging on ludicrous.

[45] Without question, serious environmental concerns arise when 3500 litres of heating oil spill onto a residential property, particularly when that property abuts a lake. Neighbouring property owners are justifiably concerned about the possibility that contaminant might migrate to their properties or affect their water table.

[46] But three decades have passed. Despite Mr. Knoppke’s appalling efforts to make it appear that contaminants continue to affect local wells, there is no current compelling evidence that any contaminants remain on any of the affected properties, save perhaps the Kreks’. And that is a big perhaps.

[47] Thirty years down the road I would expect, as a trial judge, to see evidence including the following, as a minimum:

(a) Soil samples from the affected properties and any indication of contaminants in them; (b) Samples from the water table and the wells purportedly affected by the spill; (c) Expert geological evidence concerning the percolation rates of the soils in the affected areas, with an indication as to the depth of the water table and the length of time heating oil would likely take to seep down to that depth.

[48] In my view, this is not a terribly complicated case. It has been a very long time since it began. By this point the plaintiffs should be able to establish either that their lands and/or water are currently contaminated, or that there is an area of contamination that is on the move towards their property and will inevitably arrive there unless cleaned up. They apparently can do neither. Or at least have not obtained the evidence necessary to do either.

[49] I agree with the Kreks that the time elapsed from the commencement of the claim until now has been inordinate. I am not impressed with the Kleins’ explanation for the slow progress of the proceedings, nor with their weak attempts to move it along. Even in the last year, when they have been subject to fixed timetables, they have failed to push the matter forward. If they had a legitimate complaint about the defendants’ productions, they would have taken serious steps to argue a disclosure motion. They did not.

[50] Notwithstanding my grave concerns about the arrestingly slow progress of this action, I find that it survives the Kreks’ motion by virtue of the decision of the Court of Appeal in Stokker v. Storoschuk, 2018 ONCA 2. There the court expressly held that “where delay has been addressed in a prior court order, or consented to, it is any subsequent delay that requires explanation.” (Emphasis mine).

[51] Here, the issue of delay was dealt with by Wood J. in his reasons dated October 23, 2017. Thereafter he set a timetable, the contents of which were consented to by the Kreks. The Kreks’ counsel submitted that Wood J. was not asked to rule on delay per se, but only on whether the plaintiffs’ conduct demonstrated a disdain for the court process. That may be correct. But I make two comments. First, no one appealed Justice Wood’s order. Second, the issue of delay appears to be to have been bound up in the submission that the plaintiffs had shown disdain for the process. In other words, their disdain was a function of their failure to move the action along in an expeditious or even moderately diligent way.

[52] I note that there were consent variations to the timetable set by Wood J. I do not consider those to be an indication of anyone’s implicit acceptance or acquiescence in any delay. The date by which the action was to have been set down for trial never changed. It would be wrong and counterproductive to co-operative litigation to hold that a party is prejudiced by reasonably accommodating the concerns of other parties.

[53] That said, in view of Justice Wood’s ruling, my focus has to be on the progress of the action over the past seventeen months. While that progress is far from impressive, I am not able to conclude that the delay now in issue is either inordinate or unexcused. For that reason, the Kreks’ motion must fail.

[54] I appreciate, however, how frustrated the Kreks must be. And rightly so in my view. The Kreks have been subject to this litigation for the last eight and a half years of their lives. This is only the most recent in a line of lawsuits stretching back almost three decades. They are entitled to have this case resolved in one way or another so they can move on with their lives.

[55] In the result, I am going to fix one further timetable. This is a last chance timetable for the Kleins. The dates are peremptory on them. The action shall proceed in accordance with the following deadlines:

• Affidavits of documents April 1, 2019
• Motions on productions served by April 30, 2019
• Examinations for discovery to be completed by August 31, 2019
• Plaintiffs’ experts’ reports to be delivered by October 31, 2019
• Defence experts’ reports to be delivered by December 31, 2019
• Action to be set down by December 31, 2019.

[56] As I said, these dates are peremptory on the plaintiffs. That said, the parties may expressly consent to amend any of the dates on the timetable save for the date by which the action is to be set down for trial. To be clear, I am saying this because I do not want the parties to believe that they are not able to accommodate minor variations in the litigation timetable as a matter of civility. But December 31, 2019 is intended to be a hard date. It may only be varied by further court order.

[57] If the parties are unable to agree on the issue of costs, they may make written submissions to me. Their submissions are not to exceed two pages in length, not including any costs outlines. They are to be filed on a fourteen day turnaround. The Kleins’ submissions are to be served and filed with me on or before April 1, 2019; the Kreks’ on or before April 15, 2019.

Submissions are to be filed electronically to my assistant, Ms. Taylor, whose email address is Bev.Taylor@ontario.ca.

Boswell J.

**Released:** March 19, 2019