Court File and Parties

COURT FILE NO.: CV-14-498794 DATE: 2019 04 29

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: GERRIT JOHN GEERLIGS, Plaintiff - and - BECK TAXI LIMITED, Defendant

BEFORE: Master Todd Robinson

COUNSEL: S. Juzkiw, for the plaintiff L. Freitag, for the defendant

HEARD: April 25, 2019

REASONS FOR DECISION

[1] On February 26, 2019, this action was dismissed for delay by the registrar pursuant to Rule 48.14. The action had not been set down for trial or terminated by the fifth anniversary of the commencement of the action. The plaintiff moves under Rule 37.14 of the Rules of Civil Procedure, RRO 1990, Reg 194 (the “Rules”) to “restore this matter to the trial list”. Since the action has not yet been set down for trial, it is accordingly not on the trial list. Notwithstanding the language used in the notice of motion, the motion proceeded as a motion to set aside the registrar’s dismissal, which is the correct relief to have sought in the circumstances.

[2] The plaintiff’s position is that the registrar’s dismissal order should be set aside, since there is no unexplained delay in the progress of the action and no prejudice to the defendant. The defendant opposes the plaintiff’s motion on the basis that there has been undue and unexplained delay in the progress of the action and that the defendant has suffered and will suffer actual prejudice if the action proceeds.

[3] Pleadings are closed, affidavits of documents and productions have been exchanged, and examinations for discovery have been completed. There is a dispute over the completeness of the plaintiff’s answers to undertakings. The defendant’s undertakings admittedly remain outstanding. The plaintiff’s position is that only mandatory mediation remains before the action may be set down for trial.

[4] For the reasons that follow, taking into consideration the progress and status of the action, and having considered the prejudice alleged by the defendant, I have determined that it is just that the registrar’s dismissal order be set aside and the action restored, with a timetable set for remaining steps to a new set down deadline.

Background

[5] This is a wrongful dismissal claim by the plaintiff against his former employer. The plaintiff was employed as a dispatcher with the defendant for 8 years before termination. He seeks a determination that the defendant’s purported termination for cause was not justified and judgment for severance and notice pay, loss of benefits, and other damages.

[6] The statement of claim was issued on February 20, 2014, brought in the simplified procedure under Rule 76. The defendant was evidently served shortly after commencement of the action, since it filed its defence on April 17, 2014.

[7] Several months later, the plaintiff retained new counsel. On September 16, 2014, current plaintiff’s counsel delivered a notice of change of lawyer. Thereafter, between October 2014 and late April 2015, plaintiff’s counsel wrote several letters requesting dates to schedule discoveries. There is no evidence of any response by defendant’s counsel to these letters. Sometime during this period, the defendant’s primary counsel with carriage had left for parental leave and a new counsel at the firm took carriage of the file. This change in the defendant’s counsel was confirmed to plaintiff’s counsel by reply letter dated April 29, 2015.

[8] Notwithstanding that no discovery plan had been proposed or agreed and that affidavits of documents had not been exchanged, which neither party raised in the subsequent correspondence scheduling discoveries, the parties agreed to proceed with examinations for discovery on September 24, 2015. The defendant served its notice of examination in June 2015, after which neither party appears to have taken any steps until the day before the scheduled examinations. Notably, after scheduling discoveries, neither party sought or appears to have taken any steps to prepare a discovery plan or an affidavit of documents.

[9] On September 23, 2015, the day before the scheduled examinations, defendant’s counsel wrote to plaintiff’s counsel and noted that the plaintiff had not served a notice of examination or an affidavit of documents. At this point, the defendant had also not served an affidavit of documents. Defendant’s counsel went on to state as follows:

Under the circumstances, we will not be able to proceed with Examinations for Discovery tomorrow, September 24, 2015. I have instructions to cancel tomorrow’s appointment at Victory Verbatim and to re-schedule the examinations. Please provide your and your client’s availability for same at your earliest convenience.

[10] Discoveries were thereafter rescheduled for November 6, 2015, and the defendant served a further notice of examination.

[11] On November 2, 2015, four days before the scheduled examinations, the defendant served its affidavit of documents and Schedule A productions. The defendant also requested that the plaintiff provide his affidavit of documents and productions.

[12] On November 4, 2015, plaintiff’s counsel wrote to request that the examinations be rescheduled due to a conflict with the plaintiff’s schedule. The defendant did not object, and new available dates were requested from the plaintiff on November 5, 2015. In that letter, defendant’s counsel requested available dates for November and December 2015, and advised that the defendant’s representative was otherwise unavailable to be examined until April 2016.

[13] Plaintiff’s counsel did not respond until April 10, 2016, at which time examination dates were sought for June, July or August 2016. Defendant’s counsel did not respond to that correspondence until May 16, 2016, at which time the response was only that former counsel had returned from parental leave, was resuming carriage, and would “be in a position to respond to [the] letter shortly.”

[14] The affidavit of Artelino Vallada, a law clerk with plaintiff’s counsel, swears that the plaintiff’s affidavit of documents was prepared and served by mail, apparently sometime in this period. Other than Ms. Vallada’s statement that it was “prepared and sent”, there is no corroborating evidence as to when or if the affidavit of documents was actually sent. Evidence from the defendant supports that, if sent at this time, it was not received.

[15] Despite suggesting a response would be sent “shortly”, defendant’s counsel did not write again until two months later, at which time plaintiff’s counsel was asked to contact her about new discovery dates. From that point, a somewhat slow and protracted back and forth continued for some months, with the defendant’s carriage counsel leaving the firm, new counsel taking over and requesting the plaintiff’s affidavit of documents in October 2016, which plaintiff’s counsel advised he had understood had already been sent, and the plaintiff’s unsworn affidavit of documents ultimately being sent electronically on November 13, 2016. Examinations for discovery were thereafter rescheduled for April 26, 2017, and did proceed.

[16] Between April 26, 2017 and the dismissal on February 26, 2019, neither party appears to have provided any answers to undertakings, nor did either party request that the other party provide those answers. In fact, there is no evidence of any communications between the parties other than two letters dated December 28, 2018 and January 18, 2019 from plaintiff’s counsel, which the affidavit evidence of defendant’s counsel tendered by the defendant indicates were never received.

[17] There is evidence from the plaintiff of efforts in 2017 and 2018 to obtain answers to undertakings, including what appears to be an internal undertaking chart from plaintiff’s counsel with notes about dates on which requests to both the plaintiff and third parties were made and status of undertakings. There are also letters in evidence sent to medical practitioners and medical record retrieval services in 2017 and 2018, and copies of cheques paid for costs and disbursements incurred.

[18] On March 8, 2019, after the dismissal, plaintiff’s counsel wrote to defendant’s counsel proposing mediation. The affidavit evidence of Ms. Vallada suggests that the dismissal order was not received until after this letter was sent.

[19] On April 1, 2019, the plaintiff served his motion record for this set aside motion. Based on the record, the documents included in the motion record relating to the plaintiff’s undertakings do not appear to have been previously provided to the defendant.

[20] On April 15, 2019, as part of a response to challenges made by defendant’s counsel to the motion materials, plaintiff’s counsel provided further details regarding work on answers to undertakings.

Applicable Law

[21] Pursuant to Rule 37.14, the court may set aside or vary a dismissal order on such terms as are just. Rule 37.14 provides as follows:

37.14 (1) A party or other person who, (a) is affected by an order obtained on motion without notice; (b) fails to appear on a motion through accident, mistake or insufficient notice; or (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 service of the notice of motion.

(2) On a motion under subrule (1), the court may set aside or vary the order on such terms as are just

[22] The test on a motion to set aside a registrar’s order dismissing an action for delay was originally described by Master Dash in Reid v. Dow Corning Corp. (2001), 11 C.P.C. (5th) 80 (Ont SCJ), which was confirmed by the Court of Appeal in Scaini v. Prochnicki, 2007 ONCA 63, with some modification. More recently, the applicable test has been outlined by the Court of Appeal in H.B. Fuller Company v. Rogers (Rogers Law Office), 2015 ONCA 173.

[23] In particular, the following are the relevant considerations, as outlined in H.B. Fuller Company at paras. 20-28, that I have applied in determining whether or not to set aside the registrar’s dismissal order:

(a) The plaintiff bears the onus on the motion; (b) The court must consider the four well-known Reid factors, namely the length of the litigation delay and the explanation provided for it, inadvertence in missing the deadline, promptness in bringing the set aside motion, and whether the delay has prejudiced the defendant; (c) All relevant factors, including factors unique to the case, must be taken into consideration in an overall contextual approach to arriving at a just result in the particular circumstances of the case; (d) While the plaintiff bears primary responsibility for the conduct of the action, the defendant’s conduct and contribution to delay is still a relevant circumstance; (e) In determining what is just, the court must balance the competing policies of allowing civil actions to be decided on their merits and ensuring that civil actions are resolved in a timely an efficient manner to ensure public confidence in the administration of justice is maintained; (f) Delay resulting from an error committed by counsel, to the detriment of an innocent client, may be excusable, since the court is concerned primarily with the rights of litigants, not with conduct of counsel; and (g) A balancing the interests of the litigants must occur, namely the right of a plaintiff to have its action decided on its merits and fairness to a defendant if there is non-compensable prejudice either from the delay such that a fair trial is prevented or from the defendant’s reliance on the finality of a dismissal order.

[24] In the defendant’s factum, the defendant acknowledges that the court “must adopt an overall contextual approach and, as well, take factors unique to the case into consideration.” However, notwithstanding that acknowledgement, in the course of oral submissions, defendant’s counsel argued that assessment of the factors is conjunctive, namely that the plaintiff’s failure to adequately explain the litigation delay is dispositive of the motion even if there is no finding of prejudice. The defendant points to the decision of Master Haberman in Li v. Powermar, [2006] OJ No 4264 at para. 55, and suggests that, where the plaintiff’s evidence on a proper explanation for litigation delay is deficient, as it was found to be in that case, I am similarly “bound to dismiss”.

[25] That submission is now incorrect in law. While the initial iteration of the Reid test was conjunctive, the Court of Appeal overruled that approach in Scaini in favour of a contextual approach. H.B. Fuller Company affirms the contextual approach, by which the court takes into consideration factors that are unique to the case in seeking to arrive at the just result. That approach has been followed in numerous cases and is the correct approach on this motion. Accordingly, I must weigh all relevant factors and the circumstances of the case in order to reach a just result, and not view the factors in a conjunctive manner.

Analysis

Quality of Evidence

[26] Among the defendant’s challenges to the evidence tendered by the plaintiff is a criticism that neither the plaintiff himself nor plaintiff’s counsel swore the affidavit tendered in support of the motion. Instead, the affidavit of Artelino Vallada, a law clerk with plaintiff’s counsel, is the sole evidence put forward. The defendant submits that providing evidence from “only a law clerk” is insufficient, notably because there is no direct evidence of an intention by the plaintiff to move the action forward.

[27] The plaintiff provides three responding submission. First, that plaintiff’s counsel is a sole practitioner, so he could not have sworn the affidavit himself and still argued the motion. Second, that litigation delay and its explanation is largely procedural, which involves correspondence exchanged and discussions between counsel for which the plaintiff himself has no first-hand knowledge, but for which Ms. Vallada has direct knowledge given her involvement in the file. Third, the plaintiff did not expect the motion would be opposed.

[28] The first two submissions reflect a reasonable rationale for proceeding with Ms. Vallada’s affidavit as the primary evidence in support of the motion, albeit that direct evidence from the plaintiff may have been advisable in any event. I do not view the third submission as a reasonable explanation for not tendering direct evidence from the plaintiff, including by way of reply, particularly when the defendant never indicated it would not oppose and did, in fact, oppose the motion.

[29] I agree that, in relying on only the affidavit evidence of Ms. Vallada, the plaintiff has elected to proceed with this motion in the absence of any direct evidence of his intentions for the action. However, requiring direct evidence from a plaintiff in every case as a prerequisite to succeeding on a set aside motion would be too rigid and formalistic an approach. Depending on the evidence tendered regarding progress of the action and explanation for delay, the court may still be able to reasonably infer a plaintiff’s intent. I have approached Ms. Vallada’s evidence in that manner.

Litigation Delay and Explanation

[30] Having considered the progress of the action, as outlined above, there is no doubt delay, but I do not find the delay to be inordinate or unexplained. There is also delay attributable to the numerous changes in the defendant’s carriage counsel and last-minute adjournment of the first scheduled discoveries on the basis of productions not yet having been exchanged, which neither party had done. The defendant further contributed to delay in periods by its counsel not responding to correspondence or providing delayed response. Plaintiff’s counsel also delayed in responses to defendant’s counsel and in scheduling, but I cannot find that the plaintiff is solely responsible for delays in the progress of the action.

[31] On the record before me, I find that there is a reasonable explanation for delays between issuance of the claim to and including the completion of examinations for discovery on April 26, 2017. I am also satisfied that it is a reasonable inference from the evidence tendered that the plaintiff intended to continue his action throughout that period.

[32] For the period after April 26, 2017, there is much less evidence explaining the lack of progress. There is delay in answering undertakings, but by both parties.

[33] Rule 31.07 provides that answers to undertakings are to be given within 60 days after the response on an examination, failing which are they are thereafter deemed refusals. In this case, that means all unanswered undertakings became refusals on June 27, 2017. I cannot accept the defendant’s position that there was no movement in the action for the nearly two years following April 26, 2017 until this motion was brought. There is some evidence of efforts by the plaintiff (through counsel) to work on answers to undertakings in 2017 and 2018, albeit none of which was relayed to the defendant during that period. However, I am satisfied that the plaintiff was making some efforts to comply with undertakings, even if slowly.

[34] Conversely, there is no evidence of any efforts by the defendant to comply with its undertakings. Instead, the record before me supports that, following completion of discoveries, the defendants were content to “lay in the weeds” and hope the plaintiff did nothing further to move the action forward.

[35] In my view, both parties were equally complacent in not having answered undertakings as required by the Rules of Civil Procedure. However, I am not convinced that the failure to answer undertakings prevented the action from being set down for trial, since the Rules provide a scheme to deal with unanswered undertakings. In dealing with unanswered undertakings and refusals, a litigant is entitled to bring a motion to compel answers or for sanction under Rule 34.15. However, a motion is not required. Rule 31.07(2) provides that information or evidence that is the subject matter of a refusal may not be introduced at trial without leave. Rule 48.04 also clearly provides that setting down for trial does not excuse either party from compliance with undertakings, nor does it preclude either party from bringing a motion in respect of undertakings, which may be done without leave.

[36] Here, the real procedural roadblock to the plaintiff setting the action down for trial is mandatory mediation. There is a sufficient record before me of attempts by the plaintiff to arrange mediation, albeit that defendant’s counsel contends two letters in that regard were not received. I am mindful of the defendant’s position that answers to plaintiff undertakings are required for mediation purposes, but it is up to the parties to agree as to terms of mediation before proceeding. The relevance to this motion is that, in the post-April 26, 2017 period, there is evidence of the plaintiff working on answers to undertakings and making attempts to schedule mediation. Had mediation occurred, it would have removed the last roadblock to setting the action down for trial.

[37] In all of the circumstances, given the explanation and efforts reflected in the plaintiff’s materials, and with the action ready to be set down for trial within the required five years other than completing mandatory mediation, I do not find that there has been sufficient unexplained litigation delay to warrant upholding dismissal of the action. I am satisfied that, on the totality of the evidence, the plaintiff has reasonably explained the litigation delay both prior to and following examinations for discovery. I am also satisfied that there is sufficient evidence to support an ongoing intent of the plaintiff to pursue the action.

[38] This factor accordingly weighs in favour of setting aside the registrar’s dismissal order.

Inadvertence

[39] There is no evidence in the record of any inadvertence in missing the set down deadline. None of the evidence filed acknowledges that the deadline should have been met or explains why it was not met. The position is simply that there has been no intentional delay and best efforts have been made to move the action forward. The lack of any attempt to show inadvertence in missing the deadline is a factor weighing in favour of upholding the registrar’s dismissal.

Promptness of the Motion

[40] This motion was brought promptly, just over a month after the dismissal order was made and within a few weeks of when plaintiff’s counsel appears to have become aware of the order. This factor weighs in favour of setting aside the registrar’s dismissal.

Prejudice

[41] The defendant’s position is that there is actual, non-compensable prejudice from lost evidence and witness contact information, and that the plaintiff has failed to adduce evidence that there is no prejudice to the defendant. The plaintiff’s position is that the lost evidence is not actual prejudice and should have been preserved by the defendant, but in any event does not go to the heart of the dispute and is immaterial to the disposition of the action.

[42] On a set aside motion, the fact of prejudice is not itself relevant. That prejudice must accrue as a result of the plaintiff’s delays: MDM Plastics Ltd. v. Vincor International Inc., 2015 ONCA 28, para. 25, as cited in H.B. Fuller Company, supra, para. 37. The court is concerned with prejudice arising from steps taken following dismissal or that results from restoration of the action, and balancing that prejudice to the defendant against the prejudice to the plaintiff from having the case dismissed: MDM Plastics Ltd., supra, paras. 25-26. While there is a presumption of prejudice that can arise from the passage of time, including the expiring of a limitation period, the plaintiff will not necessarily fail to rebut the presumed prejudice simply because he or she does not adduce affirmative evidence. The court must consider all of the circumstances, including the defendant’s conduct in the litigation: H.B. Fuller Company, supra, para. 38.

[43] In this case, I do not accept that there is actual prejudice to the defendant arising from any plaintiff-caused delay in the action. Notably, had the action been set down for trial within five years, the lost evidence would still have been lost, and the defendant has tendered no evidence explaining why it was not or could not have been preserved. I am unconvinced by the argument that the defendant did not have to take steps to preserve such documents and information when the plaintiff was not requiring the defendant to take steps or while the defendant operated under the (seemingly mistaken) belief that the plaintiff may not be proceeding with his claim. In the absence of evidence from the defendant explaining why relevant documents and witness information were not preserved, I cannot find that any alleged prejudice accrues from plaintiff-caused delay.

[44] Specifically, the defendant purports to have suffered actual prejudice by loss of the following relevant documents and information:

(a) pre-2014 documents that were lost in a fire occurring on April 4, 2015 in the basement of the defendant’s offices, which destroyed the plaintiff’s employment file, a relevant letter from the plaintiff to the defendant, and records of warnings given to the plaintiff, among other documents; (b) audio recordings of calls with the plaintiff, which were lost as a result of a failure of the defendant’s hard drive on October 16, 2018; and (c) no contact information being available for Mohammad Choudry, a former employee of the defendant who had complained about the defendant.

[45] On close review, all of these instances of purported prejudice have one commonality: the loss of relevant documents and witness information is not as a result of delays by the plaintiff, but rather from the defendant’s own lack of diligence in failing to preserve evidence and information that was clearly relevant to the subject litigation.

[46] In the context of a wrongful dismissal action, the plaintiff’s employment file, including employment contract, performance reviews, attendance record and termination letter, is clearly relevant. Similarly, records of warnings given to the plaintiff, audio recordings of discussions with the plaintiff, and contact information for potential witnesses who may be able to substantiate issues with the plaintiff’s conduct are also clearly relevant.

[47] Dealing first with the fire, it occurred on April 4, 2015, just over a year after the action was commenced, and some 7 months prior to the defendant preparing its affidavit of documents. The loss of documents in this fire is put forward as a significant source of prejudice to the defendant’s case. However, despite its significance, there is no evidence that the fact of the fire and loss of documents was relayed to the plaintiff at any point prior to the defendant serving its responding materials on this motion. Significantly, despite the fire having occurred within a year of the close of pleadings, prior to the defendant preparing its affidavit of documents, and prior to discoveries, the evidence before the court suggests that the fire was not disclosed during the discoveries, when undertakings were apparently given to produce documents that had already been lost in the fire.

[48] A copy of the defendant’s affidavit of documents was not put into evidence by either party. However, given the allegation of non-compensable prejudice resulting from relevant documents being lost to fire in April 2015, I felt it important to see the defendant’s affidavit of documents. I was accordingly handed up a copy of the defendant’s affidavit of documents for my review.

[49] Rule 76.03(1) requires that party in a simplified procedure action serve an affidavit of documents “disclosing to the full extent of the party’s knowledge, information and belief all documents relevant to any matter in issue in the action that are or have been in the party’s possession, control or power.” The required Form 30B includes Schedule C, which is where a party must list documents that were formerly in the corporation’s possession, control or power, but which are no longer in its possession, control or power.

[50] The defendant’s affidavit of documents does include Schedule C, but it indicates “Nil”. I accordingly asked defendant’s counsel to explain how the loss of documents in a fire that occurred many months prior to the preparation of the affidavit of documents could be prejudice when the defendant did not apparently view any of those documents as relevant? Counsel’s response was that they were not aware of the fire when preparing the affidavit of documents, and that the defendant did not actually advise counsel about the fire until recently. I accept that defendant’s counsel may not have known, but there is no evidence before me to suggest that the defendant ought not to have known that relevant documents had been lost in the fire, particularly when the plaintiff’s employment file and records of warnings were among the documents lost.

[51] Dealing next with the audio recordings, I do not agree that the hard drive crash is prejudice that can be property attributed to the plaintiff. The defendant’s examination for discovery was completed on April 26, 2017, at which time the undertaking to produce the audio recordings was given. The hard drive crash in October 2018 was one and a half years later. That the plaintiff did not ask the defendant to comply with its undertakings prior to October 2018 does not excuse the defendant from complying with its undertaking. Had the defendant taken steps with reasonable diligence to preserve and produce the audio recordings, as it undertook to do, that evidence would not have been lost.

[52] Dealing with the contact information for Mohammad Choudry, this is a wrongful dismissal action in which Mr. Choudry apparently was a source of complaints against the plaintiff. It appears Mr. Choudry is a person who might reasonably be expected to have knowledge of matters in issue in the action, in which case the defendant was obliged to list him in its affidavit of documents pursuant to Rule 76.03(2). Regardless, if the defendant views Mr. Choudry as a material witness, there is no evidence to suggest that Mr. Choudry was not always a material witness and no evidence to suggest that contact information was ever available. It is not suggested that Mr. Choudry would be called as a witness for the plaintiff. In the absence of any evidence that witness contact information was previously available and particularly in the absence of any evidence of attempts to locate a witness, I do not agree that having no contact information for a witness itself constitutes prejudice.

[53] Failures by the defendant in this case to preserve relevant documents and information is not to the account of the plaintiff. The relevance of the lost documents and witness information to the litigation should have been clear to the defendant from the outset, or at least by the close of pleadings. The April 2015 fire occurred nearly a year after the defendant delivered its statement of defence, the hard drive crash occurred a year and half after the undertaking was given to produce the audio recordings, and no explanation for why Mr. Choudry’s contact information was not sought or retained has been provided. To the extent the defendant is prejudiced, it is prejudice created by the defendant itself.

[54] This is an action under the simplified procedure. Rule 76.03(1) expressly requires that a party serve its affidavit of documents within 10 days after the close of pleadings. Parties to litigation are obliged to comply with the Rules, and there is no evidence explaining why the defendant did not take steps to collect relevant documents for production in accordance with Rule 76.03(1), despite the express requirement to do so. Defendant’s counsel noted that plaintiff’s counsel did not request the affidavit of documents. I do not find that an acceptable explanation. A defendant is not excused from mandatory obligations under the Rules simply because a plaintiff did not ask for compliance. Notably, the documents lost in the April 2015 fire are all documents that would reasonably have been preserved had the defendant complied with its obligation under Rule 76.03(1).

[55] In summary, I do not find any of the alleged prejudice from the loss of documents and witness contact information to be prejudice arising from plaintiff-caused delay in the proceeding. In particular:

(a) There was no unreasonable or unexplained delay in the plaintiff’s conduct of the action up until the date of the fire. As outlined above, shortly after new counsel took over for the plaintiff, letters were sent by plaintiff’s counsel between October 2014 and late April 2015 seeking to schedule discovery dates. These went unanswered. The fire occurred in this period during which the defendant was not responding to the plaintiff’s requests to move the action forward, and well after the defendant’s deadline under Rule 76.03(1) to prepare and serve an affidavit of documents. If there is prejudice from the loss of documents to this fire, it accrues from the defendant’s delay. (b) The loss of the audio recordings is a result if the defendant’s failure to comply with its undertaking in the year and a half between giving the undertaking and the defendant’s hard drive crash. If there is prejudice from the loss of the audio recordings, it also accrues from the defendant’s delay. (c) The unavailability of contact information for Mr. Choudry is not evidence that he cannot be found, and there is no evidence that his contact information was ever available. There is insufficient evidence to find that this even constitutes prejudice.

[56] In all the circumstances, I do not find any non-compensable prejudice to the defendant that has resulted from plaintiff-caused delay in the action. If I am wrong in that, I would still find that any prejudice suffered by the defendant in the circumstances does not outweigh the greater prejudice to the plaintiff from not allowing this action to proceed, given the defendant’s own decision to ignore both positive obligations under the Rules and its obligation to answer undertakings. There is also insufficient evidence from the defendant to find that any accrued prejudice would result in material unfairness to it at trial. Accordingly, I find this factor weighs in favour of setting aside the registrar’s dismissal order.

Disposition of Motion

[57] In deciding this motion, I have applied a contextual analysis and considered the order that is appropriate and just in the circumstances. For the reasons set out above, I find that it is fair and just that the registrar’s dismissal order be set aside and the action restored.

[58] In setting aside the registrar’s dismissal, a timetable for remaining steps must be set. The plaintiff requests a timetable for remaining steps that would have motions arising from discoveries completed by October 1, 2019, mediation completed by March 1, 2019, and the action set down by December 1, 2020. Such a timetable is unreasonable given the plaintiff’s position that this matter is effectively ready for trial, but for mandatory mediation. Given the potential impact of answers to undertakings on mediation, it is also appropriate that answers to undertakings, including any motions, be timetabled prior to mediation, unless the parties agree otherwise, but taking into account that both parties have had ample opportunity to collect information and documents necessary to answer undertakings.

[59] I accordingly order as follows:

(a) The registrar’s dismissal order dated February 26, 2019 is hereby set aside and the action restored. (b) The parties shall adhere to the following timetable for remaining steps in the action to and including setting the action down for trial, provided that the parties may amend any deadline by mutual agreement in writing other than the set down deadline: (i) Answers to any outstanding undertakings shall be given by both parties by May 31, 2019; (ii) Motions arising from discoveries, if any, including undertakings and refusals motions, shall be brought and heard by no later than August 30, 2019; (iii) Mandatory mediation shall be completed by October 31, 2019; and (iv) The action shall be set down for trial by December 31, 2019. (c) This order is effective without further formality.

[60] If the parties are unable to resolve costs of this motion, then they shall provide the court with brief written submissions not to exceed four (4) pages, excluding costs outlines and any case law. The plaintiff shall deliver costs submissions by Monday, May 6, 2019. The defendant shall deliver its cost submissions by Friday, May 10, 2019. There shall be no reply submissions. All submissions may be submitted electronically directly to my Assistant Trial Coordinator by email.

MASTER TODD ROBINSON DATE: April 29, 2019