Court File and Parties

Court File No.: CV-13-490380 Motion Heard: 20190404 Superior Court of Justice - Ontario

Re: Unlimited Motors Inc., c.o.b. Lamborghini Canada and Lamborghini Toronto And: Paul Cummings, et al.

Before: Master Abrams

Counsel: C. Baker, for the plaintiff J.B. Schwartz, for the defendants

Heard: April 4, 2019

Reasons for Decision

[1] The plaintiff seeks an Order extending the set down deadline in this action involving a dispute over the purchase of two Lamborghini dealerships. For the reasons that follow, the plaintiff’s motion is granted--on terms.

[2] This action was commenced by way of a notice of action, issued in October of 2013. The statement of claim was served in April of 2014. After service of a demand for particulars, and of answers to that demand, a statement of defence was delivered in August of 2014.

[3] The plaintiff’s director, Mr. Shammas, admits that his eye was off the ball in respect of this matter, with his attention focused on other litigation and on personal issues affecting him and his family. The defendants, too, failed to take steps to advance this claim towards trial.

[4] As early as July 2018, plaintiff’s counsel attempted to reach agreement with defendants’ counsel to timetable the action and extend the set down deadline beyond the presumptive 5-year deadline. When his request for a timetable was rejected, this motion was brought—before the 5th anniversary of the issuance of the notice of action.

[5] This motion was adjourned a few times (including so as to permit more time for the filing of responding motion materials). I accept that, in considering the time standards, I must look to when the action was started and when this motion was booked.

[6] As for why the action has not progressed beyond the exchange of pleadings, the evidence of Mr. Shammas-- on which evidence he was not cross-examined --is that he was diagnosed with chronic lymphocytic leukemia in 2016 and that he experienced disabling bouts of gout. Further, he says that he was the sole caretaker for his parents and his uncle (during the period of delay)—as he is an only child and as his uncle had no other family to care for him. His father passed away in the summer of 2018. No particulars were provided as to how/when he needed to attend to his family members or how his illness was treated and/or affected his everyday dealings.

[7] Mr. Shammas says that he followed up with plaintiff’s counsel in the summer of 2017, hoping that this action would move forward; but, with no progress being made, the plaintiff changed lawyers. He further says that it was not until late that he realized that steps needed to be taken to avoid the dismissal of the action for delay. Here too no particulars were provided as to when and how these steps were taken to follow up with counsel.

[8] The plaintiff’s evidence is that all of its witnesses remain available and all of its documents have been preserved. Who these witnesses are and how Mr. Shammas knows this to be so are not stated. The plaintiff does say that it has always intended to pursue this action and is now “prepared to abide by an aggressive timetable” (para. 21 of Mr. Shammas’ November 1/18 affidavit).

[9] In Unlimited Motors Inc. v. Automobili Lamborghini Spa, 2019 ONSC 1423 [1], Master Sugunasiri declined to accept the very same explanations for delay now proffered by the plaintiff. She said that the plaintiff “has not demonstrated a causal nexus between [its director’s] health issues and family responsibilities and the inability to pursue this action. While they may have been impediments at various points, there is nothing on the record to suggest that illness and family responsibilities precluded him from instructing counsel in this action”. The Master’s “impression from the record is that the main reason for the delay is that [the plaintiff] purposely chose to focus [its] attention and resources on [other litigation]”.

[10] Master Sugunasiri also took issue with the evidence adduced by the plaintiff as to prejudice (being similar in form and substance to the evidence adduced on this motion). She said that “it is not the type of robust evidence one would expect” and that she “would have expected a detailed explanation of what documents are available and which witnesses can be reached”.

[11] I am not bound by the conclusions of Master Sugunasiri but I do give them heed. I agree that there are lacunae in the evidence adduced by the plaintiff.

[12] But there is a fundamental distinction between the motion now heard by me and the motion heard by Master Sugunasiri and it is this: I am prepared to make more allowances for the evidence proffered by the plaintiff’s representative as to his personal circumstances (and I cannot surmise that other litigation was Mr. Shammas’/the plaintiff’s primary concern). I believe that these circumstances, taken together, writ very large. And, on the motion before me (unlike on the motion before Master Sugunasiri), Mr. Shammas was not cross-examined on his evidence. The defendant has adduced no evidence as to any prejudice caused or contributed to by the plaintiff’s delay.

[13] Has the plaintiff provided an “acceptable explanation”? The plaintiff’s “reasons afford an adequate explanation for the delay”, when looked at as a whole (see: Langenecker v. Sauvé, 2011 ONCA 803, at para. 9) even if, as stated, they are wanting in particularity. The component parts of the explanation (on which there was no cross-examination), when read together, provide a reasonable basis for the plaintiff to have had his focus blurred. And while the passage of time can lead to non-compensable prejudice, there is no evidence before me of any actual prejudice on the part of the defendants and there is no evidence from the defendants as to any ill effects from the passage of time. The plaintiff has said that, “if the action were allowed to proceed, the defendants would suffer no non-compensable prejudice” ( Faris v. Eftimovski, supra, at para. 32) and the defendants do not say otherwise. And while I accept that “the party who commences the proceeding bears primary responsibility for its progress” ( Faris v. Eftimovski, supra, at para. 46), there is no evidence before me of the defendants having taken any steps to spur the plaintiff to action. It is true that, at some point, the interest in finality must trump the plaintiff’s request for an indulgence, but I do not think that the parties have reached that point here. As at now, the equities favour having the parties’ dispute determined on its merits.

[14] For all these reasons, the plaintiff’s action may still be prosecuted—but in accordance with strict timelines. Unless the parties otherwise agree, sworn affidavits of documents and Schedule “A” documents are to be exchanged by July 31/19; examinations for discovery are to take place by no later than October 31/19 (with the order of examinations to be determined by the defendants); and, this action is to be mediated by the end of April, 2020. The set down deadline is now fixed by me as June 30/20 and may not be varied, save by way of court Order.

[15] The parties have filed costs outlines with me. They may be supplemented by brief submissions of no more than 3 pages, by July 31/19. Thereafter, I will rule on costs.

June 18, 2019

[1] A decision released before this motion was argued, but after Mr. Shammas swore his affidavit herein.