Court File and Parties

COURT FILE NO.: CV-10-395906 MOTION HEARD: 2019-05-24 REASONS RELEASED: 2019-06-14

SUPERIOR COURT OF JUSTICE – ONTARIO

BETWEEN:

ROSELYN COURTNEY Plaintiff

• and-

RONALD SPRUNT Defendant

BEFORE: MASTER M.P. McGRAW

COUNSEL: K. Wace, for the Defendant, Ronald Sprunt R. Courtney, Plaintiff, Self-Represented

REASONS RELEASED: June 14, 2019

Reasons for Endorsement

I. Overview

[1] The Defendant brings a motion to dismiss this action for delay pursuant to Rule 24.01 of the Rules of Civil Procedure.

[2] After adjournments granted by Justice Mullins and Justice Pollack on September 11, 2018 and November 29, 2018, respectively, this motion first came before me on December 12, 2018. The December 12 date was peremptory on the Plaintiff and she did not appear. Accordingly, based on my finding that the Plaintiff was properly served with the Defendant’s Motion Record, Factum and Supplementary Factum, I granted an Order dated December 12, 2018 dismissing this action for delay and awarding the Defendant $15,000 in costs (the “Dismissal Order”).

[3] On February 27, 2019, the Plaintiff brought a motion before Justice Chalmers to set aside the Dismissal Order. Pursuant to Justice Chalmers’ Endorsement dated February 27, 2019, the Dismissal Order was set aside pursuant to Rule 37.14 of the Rules of Civil Procedure on the basis that the Plaintiff did not receive notice of the motion date (the “February 27 Endorsement”). The Defendant was directed to schedule this motion on the first available date, peremptory on the Plaintiff, so that it could be heard on its merits. The Defendant was directed to serve his Motion Record with the new return date on the Plaintiff personally and the Plaintiff was required to serve responding materials a minimum 4 days in advance of the motion.

[4] The Plaintiff appeared today and remains self-represented. She did not file any responding materials.

II. Procedural History

[5] This action arises from a motor vehicle accident in Brampton, Ontario on January 28, 2008. The Plaintiff commenced this action on January 28, 2010 and seeks general damages of $300,000 and special damages of $500,000. The Plaintiff was initially represented by Nareesh Misir of Misir & Company (“MC”). The Defendant served his Statement of Defence and Jury Notice on or about August 19, 2010 and his Affidavit of Documents on June 27, 2012.

[6] By Order of Master Haberman dated February 1, 2013, MC was removed as lawyers of record for the Plaintiff (the “First Removal Order”). Although properly served, the Plaintiff did not appear. In the Affidavit of Dev Misir sworn January 10, 2013 filed in support of MC’s removal motion, Mr. Misir states that after discussing examination for discovery dates with the Plaintiff on or about March 23, 2011, notwithstanding many requests, he was unable to contact the Plaintiff for almost 2 years.

[7] By Order of the Registrar dated March 1, 2013, this action was dismissed for delay (the “Registrar’s Order”). On December 17, 2013, the Plaintiff served a Notice of Appointment of Lawyer appointing Louis Mostyn of Mostyn & Mostyn (“MM”) as lawyers of record.

[8] By Order of Master Graham dated September 5, 2014, the Registrar’s Order was set aside and the Registrar was ordered to not to dismiss this action for delay prior to December 31, 2014. No-one appeared on behalf of the Defendant. The Plaintiff delivered her Trial Record on December 10, 2014 and filed it on December 16, 2014.

[9] On May 19, 2015, the Defendant, previously represented by Atherton Barristers, appointed Lawson LLP as lawyers of record. On January 18, 2019, the Defendant appointed Smockum Zarnett LLP as lawyers of record.

[10] The Plaintiff’s examination for discovery was held on February 9, 2016. By Order of Master Graham dated June 1, 2016, MM was removed as lawyers of record for the Plaintiff, and Master Graham ordered that the action would be struck from the trial list without further notice if pre-trial and trial dates were not obtained before November 30, 2016 (the “Second Removal Order”, together with the First Removal Order, the “Removal Orders”). The Plaintiff did not appear on the second removal motion. However, apparently unbeknownst to the parties, the Registrar had previously struck the action from the trial list on March 18, 2016.

[11] On July 27, 2016, the Plaintiff served a Notice of Intention to Act in Person (“NOI”). The Plaintiff did not obtain pre-trial and trial dates prior to November 30, 2016 as required by the Second Removal Order and she has not brought a motion seeking leave to restore this action to the trial list.

[12] Defendant’s counsel had no further contact with the Plaintiff until contacting her to schedule mediation in early 2018. The parties attended mediation on April 10, 2018.

[13] At the first attendance on this motion on September 11, 2018, Justice Mullins granted a 60-day adjournment at the request of the Plaintiff to provide her with additional time to retain counsel. In her Endorsement, Justice Mullins notes that the Plaintiff “submits that she was only able to get her file from her former counsel 3 months ago.” This was also noted by Justice Chalmers in the February 27 Endorsement.

[14] Justice Chalmers further states in the February 27 Endorsement:

“The Plaintiff and counsel for the Defendant attended court on Nov. 29, 2018. The Plaintiff continued to be self-represented. She had not filed any material in advance of the motion. The motion came before Justice Pollack on Nov. 29/18. She was not prepared to hear the matter as it ought to have been brought before a Master. The date of Dec. 12/18 was obtained by counsel for the Defendant. As stated above, the Plaintiff has taken the position that she was not aware the motion was to be heard on Dec. 12/18.

There has not been a hearing on the merits with respect to whether the Plaintiff’s action ought to be dismissed for delay. When the issue was first before the court on Sept. 11/18 it was adjourned to Nov. 29/18. The Plaintiff attended court on that date, but it was adjourned to be heard by the Master. Master McGraw heard the motion on Dec. 12/18, but without the benefit of any submissions from the Plaintiff.

In all of the circumstances I am prepared to set aside the Order of Master McGraw pursuant to R. 37.14 of the Rules of Civil Procedure. I am satisfied that the Plaintiff did not receive notice of the new motion date and it was for that reason she failed to appear.

I grant this relief reluctantly. From the record, the Plaintiff has failed to move this matter forward promptly. She failed to obtain new counsel after she served her Notice of Intention to Act in Person on July 27, 2016. She has not answered her undertakings from her examination for discovery which took place in February 2016. She failed to provide any responding motion materials for the dismissal for delay motion returnable on Nov. 29/18.

Despite the fact that she has not promptly moved the matter forward, I am prepared to give the Plaintiff one last chance to argue the dismissal for delay motion on its merits.”

III. The Law and Analysis

[15] Rule 24.01 of the Rules of Civil Procedure states:

(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,

(e) to move for leave to restore to a trial list an action that has been struck off the trial list, within thirty days after the action was struck off.

(2) The court shall, subject to subrule 24.02 (2), dismiss an action for delay if either of the circumstances described in paragraphs 1 and 2 of subrule 48.14 (1) applies to the action, unless the plaintiff demonstrates that dismissal of the action would be unjust.

[16] Rule 48.14 of the Rules of Civil Procedure states:

(1) Unless the court orders otherwise, the registrar shall dismiss an action for delay in either of the following circumstances, subject to subrules (4) to (8):

1. The action has not been set down for trial or terminated by any means by the fifth anniversary of the commencement of the action.
2. The action was struck off a trial list and has not been restored to a trial list or otherwise terminated by any means by the second anniversary of being struck off.

[17] An order dismissing an action for delay is a severe remedy which denies a plaintiff the adjudication of their claim on their merits, however, sometimes it is the only order that can adequately protect the integrity of the civil justice process and prevent an adjudication on the merits that is unfair to the defendant (Langenecker v. Sauve, 2011 ONCA 803, [2011] O.J. No. 5777 (C.A.) at para. 3).

[18] The relevant considerations on a Rule 24.01 motion are set out in Master Graham’s decision in Szpakowsky v. Tenenbaum, 2017 ONSC 18:

(1) To dismiss an action for delay, the court must be satisfied that the plaintiff's default has been intentional and contumelious, or that there has been inordinate and inexcusable delay for which the plaintiff or his lawyers are responsible resulting in a substantial risk that a fair trial will not be possible. (Armstrong v. McCall, [2006] O.J. No. 2055 (C.A.), Langenecker v. Sauve, 2011 ONCA 803, [2011] O.J. No. 5777 (C.A.), Francis v. Peel (Regional Municipality) Police, [2015] O.J. No. 5001 (SCJ))

(2) A dismissal on the basis of intentional and contumelious delay would be warranted in cases "in which the delay is caused by the intentional conduct of the plaintiff or his counsel that demonstrates a disdain or disrespect for the court process." (Langenecker, supra, para. 6)

(3) The plaintiff is responsible for moving the action along. (Wallace v. Crate's Marine Sales Ltd., 2014 ONCA 671, [2014] O.J. No. 4606 (C.A.) at para. 18)

(4) Any delay in the prosecution of an action requires an explanation. The onus rests with the plaintiff to show that the delay was not intentional. In the absence of an explanation from the plaintiff for the delay, it is to be presumed that the delay was intentional. (Berg v. Robbins, [2009] O.J. No. 6169 (Div. Ct.) at para. 13)

The onus is on the plaintiff to rebut the presumption of prejudice arising from the unexplained delay by showing that documents have been preserved, and that the issues in dispute do not require the recollection of witnesses, or that necessary witnesses are available with detailed recollection of events. (Berg, para. 14)

(5) The requirement that the delay be "inexcusable" requires a determination of the reasons for the delay and an assessment of whether those reasons afford an adequate explanation for the delay. . . [E]xplanations that are "reasonable and cogent" or "sensible and persuasive" will excuse the delay at least to the extent that an order dismissing the action would be inappropriate.

In assessing the explanations offered, the court will consider not only the credibility of those explanations and the explanations offered for individual parts of the delay, but also the overall delay and the effect of the explanations considered as a whole. (Langenecker, supra at paragraphs 9 and 10)

(6) An inordinate delay after the cause of action arose or after the passage of a limitation period gives rise to a presumption of prejudice in which case the defendant need not lead actual evidence of prejudice and the action will be dismissed for delay unless the plaintiff rebuts the presumption. The plaintiff's onus is to persuade the court with convincing evidence that there is no substantial risk that a fair trial is not possible. (Armstrong, supra and Woodheath Developments Ltd. v. Goldman)

(7) Courts may dismiss actions for delay even when the relevant rules do not mandate it. A court has inherent jurisdiction to control its own process, which includes the discretionary power to dismiss an action for delay. The power of a superior court to dismiss an action for delay is not limited to that conferred by any specific Rules of Civil Procedure, but also flows from the inherent power of the court to prevent an abuse of its own process. (Marché D'Alimentation Denis Thériault v. Giant Tiger Stores Ltd., 2007 ONCA 695 at paragraph 24, Wallace, supra at para. 21)

As stated in Wallace at para. 22 "There comes a time, in short, when enough is enough, and the civil justice system will no longer tolerate inordinate and inexplicable delay. A court may then eject the action as an exercise of its inherent jurisdiction, whether or not the relevant rules expressly mandate it." (Szpakowsky at para. 19)

[19] If the court concludes that a plaintiff’s default was not intentional or contumelious, then the court must consider whether there has been inordinate and inexcusable delay for which the plaintiff or its lawyers are responsible resulting in a substantial risk that a fair trial will not be possible (Zaatar v. Aviva, 2018 ONSC 2871 at para. 19). In determining whether the delay has been unreasonable, the court should consider the issues raised by the case, the complexity of the issues, the explanation for the delay and all relevant surrounding circumstances (Alexander v. Rosedale United Church, 2010 ONSC 4224 at para. 57).

[20] Determining whether there is a substantial risk that a fair trial is no longer possible requires a consideration of actual prejudice. Prejudice is inherent in long delays as memories fade, witnesses become unavailable and documents are lost (Planon Systems Inc. v. Norman Wade Co., 2015 ONSC 6825 at para. 26). Rule 24 was amended to provide that if a defendant moves to dismiss an action for delay, there is a presumption of prejudice if more than 5 years have passed since the action was commenced (Marrello v. Naccarato, 2017 ONSC 757 at para. 35).

[21] The plaintiff must demonstrate that the other parties would not suffer any actual prejudice if the action is permitted to proceed including prejudice which is presumed given the fading of memories over time (1196158 Ontario Inc. v. 6274013 Canada Ltd., 2012 ONCA 544, at paras. 31, 41-43). The unavailability or death of key witnesses, the loss of documents such as OHIP records and the loss of opportunities to conduct a proper investigation may also constitute actual prejudice (Sultan v. Hurst, [2018] O.J. No. 223 (C.A.) at para. 4; 1186158 Ontario Inc. at para. 31).

[22] This motion also engages the careful balancing between efficiency and deciding disputes on their merits which I considered in Roland v. Florence, 2018 ONSC 2754. In this regard, the Court of Appeal has provided the following guidance:

“ ....On the one hand, the Rules of Civil Procedure need to be enforced in a way that ensures timely and efficient justice, in the interests of plaintiffs, defendants, and society in general. On the other hand, society in general, and the parties, have an interest in the resolution of disputes on their merits and in the availability of flexibility to avoid potentially draconian results, by providing the opportunity for parties to offer a reasonable explanation for delay when it takes them beyond established timelines.” (Kara v. Arnold, 2014 ONCA 871 at para. 9).

[23] The Court of Appeal has also established the preference that matters be resolved on their merits. At para. 34 of D’Alimentation Denis Theriault Ltee v. Giant Tiger Stores Ltd., 2007 ONCA 695, Sharpe J.A. stated:

“Expeditious justice must be balanced with the public interest in having disputes determined on their merits. Where, despite the delay, the defendant would not be unfairly prejudiced should the matter proceed for resolution on the merits, according the plaintiff an indulgence is generally favoured.”

[24] The Defendant submits that the Plaintiff’s delay in moving this action forward has been inordinate and inexcusable. There is no assertion that the Plaintiff’s delay has been intentional, contumelious or abusive. On a motion to dismiss for delay for failure to restore an action to the trial list, the court is entitled to consider all of the delay in the action not just the time since it was struck from the trial list (Alexander at para. 63).

[25] Considering the overall procedural history of this action, I conclude that the delay has been inordinate. The two primary periods of delay are the almost 2 years before the First Removal Order and the over 3 years since the Second Removal Order (which includes the period of approximately 2 years between the NOI and when the Defendant brought this motion). Over 11 years have passed since the accident giving rise to this action, over 9 years since this action was commenced, and over 8 years since the close of pleadings. Further, over 3 years have passed since this action was struck from the trial list during which the Plaintiff has not sought leave to restore it to the trial list. Over two years have elapsed since the expiry of the deadlines to obtain pre-trial and trial dates pursuant to the Second Removal Order. The Plaintiff has also failed to provide any answers or evidence of best efforts with respect to the outstanding undertakings from her examination for discovery held over 3 years ago.

[26] Although this action has not proceeded promptly and its progress is far from ideal, this is not a case where very little has happened. Examinations for discovery and mediation have been completed and significant documentary production has been made.

[27] The Plaintiff is 71 years old and has been self-represented since the Second Removal Order. She disputes Mr. Misir’s evidence filed on the first removal motion that she did not respond for over 2 years. Given that she did not appear, I accept Mr. Misir’s evidence as uncontroverted.

[28] With respect to the delay after the Second Removal Order, it is the Plaintiff’s evidence that she was unable to obtain her file from MM until June 2018, over two years after MM’s removal from the record. The Defendant brought this dismissal motion shortly after on July 20, 2018.

[29] The Plaintiff states that after the Second Removal Order and since receiving her file, she has made significant efforts to retain new counsel. This has included making numerous inquiries through the Law Society of Ontario, pro bono offices and local politicians. She brought her file to court on this motion and advises that it is her understanding that it contains the documents which the Defendant submits are missing or not produced and that she provided authorizations to MM to obtain records from OHIP and other non-parties. She also states her belief that records from some of her doctors (including her chiropractor) and documents subject to the outstanding undertakings are in the file. Some of these documents may have already been produced.

[30] The Plaintiff further explains that she is unable to understand or read many of the documents in her file, is unsure what has been produced and requires a lawyer to assist her in reviewing and understanding her file in order to advance this action to its completion. She states that she just wants to complete the remaining steps so that the litigation will be over and done.

[31] The Defendant relies on Wayne v. 1690416 Ontario Inc., 2013 ONCA 705 in which the Court of Appeal upheld the motion judge’s dismissal of a defendant’s statement of defence and counterclaim. The Court of Appeal agreed with the motion judge that the defendant wholly failed to comply with specific obligations arising from court orders and the Rules, provided no “real” explanation for ongoing non-compliance “let alone a reasonable one”, gave no indication when compliance may be expected all of which was consistent with the defendant’s conduct in the litigation (Wayne at para. 7).

[32] The Defendant also relies on the Divisional Court’s decision in Layland v. Canadian Co-Operative Assn., 2015 ONSC 835 (Div. Ct.) in which leave was granted to appeal a motion judge’s dismissal of a dismissal for delay motion. In granting leave, Lederer J. stated:

“I should note that, over much of the course of this action, the plaintiff has relied on the state of her health, her problems with her counsel and the fact that, without legal experience, she is representing herself as the explanations for the delay. It may be that there are times when recognition should be given to those with these difficulties but, ultimately, the court cannot wait forever. Defendants also have rights and the process of the courts cannot function properly if they are held up for too long:

This lawsuit has not gone anywhere since pleadings closed. The plaintiff admits that there has been inordinate delay. The Plaintiff's excuse for the delay is that: (a) she was disabled for long periods of time; (b) she was engaged in other legal matters, and (c) she was and still is impecunious. These facts are not sufficient excuse...” (citations omitted)(Layland at para. 72).

[33] In my view, Wayne and Layland are distinguishable from the present case. In Wayne, although the defendant was represented by counsel, his non-compliance and delay continued and he provided no real or reasonable explanation for the delay. In Layland, over 17 years had passed since the action was commenced. This is also not a case like my decision in Williams Medical Technologies Inc. v. Source Medical Corp., 2017 ONSC 2645, also relied on by the Defendant, where a plaintiff corporation represented by counsel took no steps for over 10 years citing only an unspecified retainer dispute.

[34] In the present case, the Plaintiff is a 71-year old self-represented litigant who received her file shortly before this dismissal motion was commenced. She does not understand the nature and content of the documents in her file which has prevented her from completing the remaining and outstanding steps in this action. Progress was made when she had counsel including completion of examinations for discovery and mediation and significant documentary production. She has subsequently made reasonable albeit unsuccessful efforts to retain new counsel.

[35] I am satisfied that, as contemplated in Layland, the present case is one where recognition should be given to the Plaintiff’s difficulty in representing herself and moving this action forward to its final steps, namely satisfying her undertakings and production obligations and obtaining pre-trial and trial dates. In this regard, I conclude that the Plaintiff has provided a reasonable explanation for the delay particularly as it relates to the period since the Second Dismissal Order. Unlike Layland, although the delay has been inordinate it does not, given the Plaintiff’s explanation, lead me to the conclusion that it is sufficient at this time to deprive the Plaintiff of her right to have this action tried on its merits.

[36] Based on my consideration of all relevant factors and circumstances, including the overall delay and the steps taken to date, I conclude that the Plaintiff has provided a credible, reasonable explanation for the delay such that I am unable to conclude that the delay is inexcusable. As such, I am prepared to excuse the delay to the extent that dismissal of the action would inappropriate at this time.

[37] Even if I had concluded that the delay is both inordinate and inexcusable, I reject the Defendants’ submission that the delay has resulted in actual prejudice leading to a substantial risk that a fair trial is no longer possible.

[38] I agree with the Defendant that the inordinate delay gives rise to a presumption of prejudice. The Plaintiff bears the onus to rebut this presumption.

[39] The Defendant submits that there is actual prejudice arising from the unavailability of certain documents and other evidence. The Defendant relies primarily on the fact that the Plaintiff has only produced OHIP summaries from 2008-2011. Since OHIP summaries are only available 7 years prior to the request date, OHIP summaries for the Plaintiff will now only be available back to 2012. The Defendant also does not have the Plaintiff’s accident benefits file from the 2008 accident or any documents related to previous motor vehicle accidents and related litigation involving the Plaintiff which occurred in 2005 and 2007. The Defendant acknowledges that the Plaintiff has produced all records from her family doctor and physiotherapist up to February 2016 and all records from her attendance at the hospital emergency ward after the accident.

[40] The Defendant further submits that 2 of the 3 key witnesses, the Defendant and the attending police officer, may not be available for trial. Counsel acknowledges that they have not made any inquiries or taken any steps to locate the officer or determine his availability for trial and that his notes have been preserved. Counsel also advises that they have not been able to contact the Defendant since in or about December 2018.

[41] Based on my consideration of all relevant factors and circumstances, I conclude that the Plaintiff has rebutted the presumption of actual prejudice. The Defendant has all records from the Plaintiff’s family physician and physiotherapist up to February 2016. With updates, this provides the Defendant with a significant portion of the relevant documents required to properly defend this action. The records of the Plaintiff’s family physician largely mitigate the unavailability of any OHIP records, which, at this time, appear to be limited to a one year period from 2011-2012. The production of her physiotherapy records also assists in this regard. Further, terms and timetabling can be imposed to compel the Plaintiff to deliver answers to her outstanding undertakings which will, if this action is to proceed to trial, result in the production of additional documents.

[42] I am also unable to conclude that the police officer will not be available for trial as Defendant’s counsel has made no efforts to contact him. The preservation of the officer’s notes also mitigates any prejudice. Further, the fact that counsel has not had contact with the Defendant for 5 months does not establish that the Defendant will not be available.

[43] I also reject the Defendant’s submissions that this action should be dismissed because the Plaintiff is unlikely to retain counsel and therefore, will be unable to move this matter forward. In my view, it would be inappropriate and contrary to access to justice and the required balancing of the parties’ rights to base a dismissal in these circumstances at least in part on the Plaintiff’s inability to retain counsel. Similarly, I reject the Defendant’s argument that I should also take into consideration that the Plaintiff has been difficult to contact because she does not have an answering machine and only intermittent access to an email address. The Plaintiff has agreed that Defendant’s counsel can contact her using her son’s email address which she has provided and her mailing address for service remains the same.

[44] Taking all of the relevant factors and circumstances into consideration, including the preference that actions be tried on their merits, and balancing the rights of the parties, I conclude that it would not be appropriate or just to dismiss the Plaintiff’s action at this time. However, in light of the circumstances, in granting this indulgence to the Plaintiff, I am mindful of the delay to date and the Defendant’s right to have this matter progress promptly to its conclusion. Therefore, I dismiss this motion with terms to ensure that the Plaintiff moves promptly to fulfil her outstanding obligations and complete the remaining steps without further delay.

[45] Accordingly, the Defendant’s motion to dismiss this action for delay is dismissed on the following terms which, in my view, are just, consistent with Rule 1.04(1) of the Rules of Civil Procedure, proportionate and reflect the appropriate balancing of the parties’ rights at this time and in these circumstances:

i.) the Plaintiff shall deliver answers to all outstanding undertakings and/or evidence of best efforts to Defendant’s counsel on or before September 30, 2019; ii.) the Plaintiff shall deliver any additional relevant documents in her possession or control to Defendant’s counsel on or before September 30, 2019; iii.) the Plaintiff shall obtain pre-trial and trial dates on or before October 31, 2019; iv.) the Plaintiff may be served by regular mail and email at the addresses she has provided.

VI. Disposition and Costs

[46] The Defendant’s motion to dismiss this action for delay is dismissed on the terms set out above. Counsel shall file a form of order with me through the Masters Administration Office for my review and approval. While the Court office will send a copy of these Reasons For Endorsement by regular mail to the Plaintiff, counsel for the Defendant shall also mail and email her a copy.

[47] If the parties are unable to agree on the costs of this motion, counsel may schedule a telephone case conference with me to speak to a process for costs submissions.

[48] I shall remain seized of this matter and any motions within the jurisdiction of a Master. The parties may contact me to schedule a telephone case conference to speak to any outstanding issues or for further directions or case management, if necessary.

Released: June 14, 2019 Master M.P. McGraw