Court File and Parties
Court File No.: CV-13-475714 Motion Heard: 2019 03 21 Superior Court of Justice - Ontario
Re: Innocenzo Lippa v. Advanced Software Concepts Inc.
Before: Master R. A. Muir
Counsel: William G. Scott, counsel to the lawyers for the plaintiff Paul Macchione for the defendant
Reasons for Decision
[1] The plaintiff brings this motion pursuant to Rule 37.14 of the Rules of Civil Procedure, RRO 1990, Reg. 194 (the “Rules”) for an order setting aside the order of the registrar dated July 5, 2018 dismissing this action for delay. The plaintiff initially brought a motion for a status hearing pursuant to Rule 48.14(5). However, the registrar made the July 5, 2018 dismissal order while the status hearing motion was pending, apparently because no motion record had been delivered and the motion had not been listed for a hearing on its return date of July 5, 2018. The defendant is opposed to the relief the plaintiff is seeking.
Background
[2] This is a wrongful dismissal action. The plaintiff was employed by the defendant from 2006 to 2011. He was dismissed, allegedly for cause, on March 9, 2011. The defendant has cited ongoing performance issues as the basis for the plaintiff’s dismissal.
[3] The statement of claim in this action was issued on March 7, 2013 and served shortly thereafter. The plaintiff seeks significant damages for wrongful dismissal, payment of outstanding commissions, along with punitive and exemplary damages.
[4] The defendant filed its statement of defence on May 28, 2013. A telephone conversation took place between the lawyer for the plaintiff (not Mr. Scott) and the lawyer for the defendant shortly after the statement of defence was served.
[5] There were no further communications or steps taken by the plaintiff or his lawyer to advance this claim in any manner until January 28, 2018 when the plaintiff’s lawyer called and left a voicemail for the defendant’s lawyer. The plaintiff’s lawyer then wrote to the defendant’s lawyer on January 30, 2018 proposing a timetable for the completion of the remaining steps in this action. The defendant declined to provide its consent to a timetable. It took the position that this action should be dismissed for delay.
[6] A notice of motion for a status hearing was served on or about March 6, 2018. The status hearing motion was originally returnable on May 9, 2018 and subsequently adjourned on consent to July 5, 2018. On July 4, 2018 the lawyer for the plaintiff apparently determined that the motion was not listed for July 5, 2018 and would not be heard. It appears that the defendant’s lawyer did attend court on July 5, 2018. He was directed to speak to the registrar who then dismissed this action for delay.
[7] This was a surprise to the lawyer for the plaintiff as she did not attend court on July 5, 2018 and was planning to serve a notice of return of motion with a proposed hearing date during the week of September 17, 2018.
[8] When the plaintiff’s lawyer learned of the July 5, 2018 dismissal order, she served a notice of motion for this motion on or about August 2, 2018 with an initial return date of October 23, 2018. This motion was subsequently adjourned on consent and ultimately heard by me as a long motion on March 21, 2019.
[9] There has been no documentary or oral discovery or any other proceedings in connection with this action.
Applicable Law
[10] In my view, the test on a motion to set aside an administrative dismissal order is the applicable test on this motion. This court has made an order dismissing this action for delay. The order remains in place, despite the circumstances under which it was made. Although there may be subtle differences in the test on a status hearing as opposed to a motion to set aside a dismissal order, the fundamental exercise is the same. There must be a weighing of all relevant factors in order to reach a just result. See H.B. Fuller Company v. Rogers (Rogers Law Office), 2015 ONCA 173 at paragraphs 21-23.
[11] The test on a motion to set aside an administrative dismissal order is summarized in H.B. Fuller Company at paragraphs 20-28. The onus is on the plaintiff. While the court must consider all relevant factors, four factors are of central importance. The court must consider the explanation for the delay, whether the deadline was missed due to inadvertence, any delay in bringing the motion to set aside the dismissal order and prejudice to a defendant in presenting its case at trial or as a result of reliance on the finality of a dismissal order.
[12] In MDM Plastics Ltd. v. Vincor International Inc., 2015 ONCA 28, the Court of Appeal held that in most cases the issue of prejudice is the key consideration and figures largely in determining whether to set aside a dismissal for delay. See MDM at paragraph 24. The Court of Appeal emphasized that judges and masters must balance any prejudice to a defendant against the prejudice to a plaintiff from having his case dismissed. See MDM at paragraph 26.
[13] Ultimately, the court must take a contextual approach and consider all of the circumstances of each particular case and make the order that is just. See MDM at paragraph 12. In doing so, the court must balance the right of a party to a determination of its claim on the merits with the important principle that actions should be resolved in a timely and efficient manner. However, the preference in our system of civil justice is for the determination of disputes on their merits. See Fuller at paragraphs 25-27.
[14] These are the factors and principles I have considered and applied in determining the issues on this motion. In my view, it is just in the circumstances of this action that the dismissal order not be set aside.
Litigation Delay
[15] There is simply no adequate explanation for the plaintiff’s delay in advancing this claim. The plaintiff’s lawyer has given evidence that she was away from her practice at some point due to a maternity leave. The plaintiff’s lawyer suggests that this accounts for a portion of the delay but otherwise she simply overlooked the matter for nearly five years because it had not been entered into a reminder system. These are not sufficient explanations. There were other lawyers at the firm the plaintiff retained that could have assumed temporary carriage of this matter in the absence of the plaintiff’s lawyer. The failure to undertake the most basic elements of file management cannot be an adequate explanation. This appears to be a matter that was simply assigned to the back of a filing cabinet and forgotten.
[16] The plaintiff himself has given evidence that he was otherwise occupied with finding other employment and subsequently his demanding work schedule with his new employer. He also cites his obligations in connection with raising his family as a single father and the illness of his mother. While I certainly accept the importance of those other commitments, they do not explain a complete lack of attention to this matter for nearly five years. Almost all litigants have competing claims to their time and resources. The courts and the Rules recognize this reality. A plaintiff is usually permitted a generous period of time to get his case ready for trial. Extensions of time are sometimes allowed where despite some diligence an action is not ready for trial within the prescribed time limits. Here, however, there has been a complete lack of activity on the part of the plaintiff and his lawyer. The plaintiff’s other commitments are understandable and important. However, they do not appear to be so extraordinary that he was unable to pay any attention at all to this claim for nearly five years.
[17] The primary responsibility for advancing a claim to trial rests with the plaintiff. Where there has been delay, the plaintiff is responsible for providing an adequate explanation for the delay. See Fuller at paragraphs 20 and 23. The plaintiff in this action has failed to meet this burden.
[18] Additionally, it is my view that the evidence on this motion, considered as a whole, supports the conclusion that the plaintiff and his lawyer made a deliberate decision not to advance this claim, or at best they were indifferent to whether the claim moved forward or not.
[19] The plaintiff retained counsel shortly after his dismissal in March 2011. In the following months, various attempts were made to reach a negotiated settlement with the defendant. However, those negotiations broke down in the summer of 2011. Nothing more was done to pursue this claim until the statement of claim was issued on March 7, 2013, just two days before the expiry of the presumptive limitation period. The statement of claim was served and a defence was delivered but again nothing further was done and the claim was put aside for nearly another five years. The evidence shows that the plaintiff and his lawyer simply did the bare minimum to advance this claim and then only when absolutely required to do so by a limitation period or the Rules.
[20] The plaintiff gave evidence that he was in somewhat regular communication with his lawyer about the status of this action. However, the evidence of his lawyer does not support that assertion. Her evidence is that there were no communications between the plaintiff and counsel between March 2013 and January 2018. Moreover, there is no documentary or other supporting evidence to corroborate the plaintiff’s bald assertions. The plaintiff has not produced any notes, copies of email exchanges, phone records or any other similar evidence to support his position. The plaintiff is a sophisticated professional. He describes himself as a “senior business development executive”. He is not the kind of plaintiff who would be completely dependent on counsel.
[21] In my view, all of this evidence supports the conclusion that this claim was deliberately ignored and forgotten for many months and years and is only consistent with an intention to abandon the claim. As the Court of Appeal stated in Habib v. Mucaj, 2012 ONCA 880 at paragraph 5 “a deliberate decision not to advance the litigation will usually be fatal”.
Inadvertence
[22] I am satisfied that the dismissal order was made due to inadvertence on the part of the plaintiff’s lawyer. The plaintiff’s lawyer brought a motion for a status hearing and obtained the consent of the defendant to an adjournment of that motion. It was only because the motion was not listed for a hearing on July 5, 2018 that the dismissal order was made. The plaintiff immediately moved to set aside that order. The dismissal order was obviously made because of the inadvertence of counsel.
Motion Brought Promptly
[23] This motion was also brought promptly. As stated above, the status hearing motion was brought before the dismissal order was made and before the expiration of the five year deadline. The notice of motion seeking an order setting aside the July 5, 2018 dismissal order was served approximately 22 days after the plaintiff’s lawyer learned of the dismissal order. The defendant does not contest this.
Prejudice
[24] In my view, the plaintiff has failed to meet his onus with respect to prejudice. Where a limitation period has passed, as it has here, a presumption of prejudice arises and the onus rests with the plaintiff to rebut that presumption. The strength of this presumptive prejudice increases with the passage of time. See Wellwood v. Ontario (Provincial Police), 2010 ONCA 386 at paragraph 60.
[25] A plaintiff can overcome the presumption of prejudice by leading evidence that all relevant documents have been preserved, that key witnesses are available or that certain aspects of the claim are not in issue. See Wellwood at paragraph 62.
[26] I view the presumptive prejudice as particularly strong in the circumstances of this action. The plaintiff’s employment with the defendant was terminated in March 2011. However, the plaintiff’s claim includes an allegation that he was induced to leave his previous employment and join the defendant in 2006. Moreover, the cause for termination alleged by the defendant involves the plaintiff’s job performance over the course of his employment. The statement of claim also makes allegations of bad faith and seek punitive and aggravated damages.
[27] I acknowledge the evidence that the defendant appears to have preserved its documents in relation to this claim. However, I do not agree with Mr. Scott’s submission that this is a documents case. It will be necessary for the parties to tender viva voce evidence with respect to the recruitment of the plaintiff in 2006 along with his ongoing job performance and the manner of his termination. While documents will assist, much of this evidence will be subjective in nature and require the court to make an assessment of the oral evidence.
[28] The plaintiff relies on the decision of Master Graham in Landmark Vehicle Leasing Corporation v. TAC Mechanical Inc., 2018 ONSC 5956 (Master) which involved very similar unexplained delay on the part of the plaintiff. In my view, the facts on this motion are significantly different. Landmark involved a claim for damages arising from defaults under motor vehicle leases. Such an action will turn largely on an examination of the leases and other related documents. The importance of documents in Landmark is made clear in Master Graham’s decision at paragraphs 33 and 34. It is also noteworthy in Landmark that the evidence of a key witness was preserved, at least in part, through an affidavit served in connection with a summary judgment motion. This was an important factor. See Landmark at paragraphs 32 and 35.
[29] Some of the events relevant to this claim took place 13 years ago. The plaintiff’s employment was terminated eight years ago. The presumption of prejudice is based on the accepted understanding that memories fade over time which may give rise to a substantial risk that a fair trial will not be possible. See Wellwood at paragraph 62. The plaintiff has not served an affidavit of documents. No discoveries have taken place. There is no evidence that the plaintiff has otherwise obtained and preserved the evidence of important witnesses. In the circumstances of this action, the plaintiff has failed to meet his onus of rebutting the presumption of prejudice to the defendant.
Conclusion
[30] When deciding motions of this nature, the court must apply a contextual analysis and consider all relevant factors. It is not necessary for a plaintiff to satisfy all of the relevant factors. The court must assess the factors from a contextual perspective and then take a step back and determine what order would do justice in all of the circumstances.
[31] The preference in our system of civil justice is for a determination of disputes on their merits. However, the court must balance the right of a party to a determination of his claim on the merits with the important principle that actions should be resolved in a timely and efficient manner.
[32] The plaintiff has brought this motion promptly and I am satisfied that the dismissal order was made due to inadvertence. However, the plaintiff has failed to adequately explain the lengthy and inordinate delay and complete lack of attention to this action. I have also concluded that the evidence on this motion is consistent with a finding of a deliberate decision not to advance this litigation which is generally fatal to a plaintiff’s position. Finally, I have concluded that the plaintiff has failed to meet his onus of rebutting the strong presumption of prejudice to the defendant. Prejudice is the key consideration.
[33] For the reasons set out above, I have concluded that this is one of those rare cases where it is just to deny a plaintiff his right to a determination of his claim on the merits. It is just in the circumstances of this action, that the dismissal order not be set aside. The plaintiff’s motion is dismissed.
[34] If the parties are unable to resolve the issue of the costs of this motion, they shall provide the court with brief written submissions by April 23, 2019. These submissions may be sent directly to me by email.
Master R. A. Muir Date: 2019 03 22