Court File and Parties
COURT FILE NO.: CV-14-00497688 MOTION HEARD: 20190404 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Rawia Salman, Plaintiff AND: Robert Ipacs and Ipacs Law Office, Defendants
BEFORE: Master B. McAfee
COUNSEL: Rawia Salman, Plaintiff, In Person K. Leonov, Counsel for the Defendants
HEARD: April 4, 2019
Reasons for Decision
[1] This is a motion brought by the plaintiff for an order setting aside the order of the Registrar dismissing the action for delay dated February 20, 2019.
[2] The within action is one of three actions commenced by the plaintiff on February 3, 2014, at Toronto, claiming solicitor’s negligence. The three actions are:
a. Salman v. Stamps, CV-14-00497687; b. Salman v. Ipacs et al., CV-14-00497688 (the within action); and, c. Salman v. Patey et al., CV-14-00497689.
[3] On December 12, 2014, on a motion for summary judgment, Justice Myers dismissed the Salman v. Stamps action.
[4] On December 19, 2016, on a motion for summary judgment, Justice Reilly dismissed the Salman v. Patey action.
[5] On August 9, 2018, following a motion for summary judgment, Justice Broad dismissed the within action.
[6] The plaintiff appealed from the order of Justice Broad to the Court of Appeal for Ontario. The appeal was heard on February 22, 2019. For reasons released on February 27, 2019, the appeal was dismissed. The plaintiff intends to seek leave to appeal to the Supreme Court of Canada.
[7] At the time of the Registrar’s dismissal order in the within action on February 20, 2019, the within action had already been dismissed pursuant to the order of Justice Broad dated August 9, 2018.
[8] The motion for summary judgment was heard by Justice Broad in Kitchener, Ontario, pursuant to the order of Justice Faieta dated June 24, 2015, to accommodate the plaintiff. The action remained a Toronto action.
[9] The order of Justice Broad was entered in Kitchener, Ontario, where the motion was heard. There is no evidence before me that the parties also had the order entered in Toronto, Ontario, where the action remained. There is no evidence before me that the parties otherwise notified the court office in Toronto of the dismissal of the action pursuant to the order of Justice Broad prior to the Registrar’s dismissal order.
[10] In these circumstances, the Registrar in Toronto who dismissed the action for delay pursuant to Rule 48.14(1) of the Rules of Civil Procedure on February 20, 2019, would not have been aware that the action had already been dismissed pursuant to the order of Justice Broad. Had the Registrar been aware that the action was already dismissed and therefore was “terminated by any means” there would have been no reason for the Registrar to also dismiss the action for delay pursuant to Rule 48.14(1).
[11] On the motion before me, the defendants confirmed that although they oppose the setting aside of the Registrar’s dismissal order at this time, they would not oppose the setting aside of the Registrar’s dismissal order if the plaintiff is granted leave to appeal to the Supreme Court of Canada and if the plaintiff subsequently succeeds in her appeal to the Supreme Court of Canada.
[12] In my view this is the just and reasonable way to proceed. Setting aside the Registrar’s dismissal order at this time would not alter the fact that the action is dismissed. The action would remain dismissed pursuant to the order of Justice Broad.
[13] The plaintiff sought costs of the motion in the amount of $306. The defendants did not seek costs of the motion. The plaintiff was not successful in obtaining an order setting aside the Registrar’s dismissal order at this time as the plaintiff requested. The Registrar’s dismissal order is only to be set aside in the future if certain conditions are satisfied. In my view there should be no costs of the motion.
[14] Order to go as follows:
- The plaintiff’s motion for an order setting aside the order of the Registrar dated February 20, 2019, is dismissed at this time, subject to the following: a. if the plaintiff is granted leave to appeal to the Supreme Court of Canada and if the plaintiff subsequently succeeds in that appeal such that the dismissal of the action by way of summary judgment is set aside, the order of the Registrar dated February 20, 2019, dismissing the action for delay shall be set aside only at that time.
- There shall be no costs of this motion.
Master B. McAfee Date: April 8, 2019