COURT FILE NO.: CV-14-496625 DATE: 2019/07/04
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Joseph H. Langemann v. Shane St. Pierre, Daniel Mooney and TD General Insurance
BEFORE: Master A. Graham HEARD: June 27, 2019
COUNSEL: A. Zaltz for the plaintiff (moving party) E. Persichilli for the defendants St. Pierre and Mooney
REASONS FOR DECISION
(Plaintiff’s motion to set aside registrar’s dismissal order)
[1] The plaintiff Joseph Langemann claims damages arising from personal injuries sustained in a motor vehicle accident that occurred on February 1, 2012. He alleges that he was injured when the Dodge Caravan vehicle that he was driving was involved in a collision with a farm tractor owned by the defendant Daniel Mooney and operated by the defendant Shane St. Pierre.
[2] The statement of claim was issued on January 17, 2014 by the plaintiff’s former counsel. The action was dismissed for delay by the registrar on February 13, 2019, and the plaintiff, represented by different counsel since September, 2017, now moves to set aside that dismissal order. The chronology of events in the action between the issuing of the statement of claim and the dismissal is set out below. The motion is opposed by the defendants St. Pierre and Mooney.
[3] The plaintiff also named as a defendant TD General Insurance, his own automobile insurer, claiming unidentified or uninsured motorist coverage. The plaintiff’s supplementary materials contain an undated notice of discontinuance prepared by his former counsel with respect to the action as against TD General Insurance but, according to the court’s case history, this notice was never filed. Based on this notice of discontinuance, and the fact that the plaintiff’s motion materials were served only on counsel for the defendants St. Pierre and Mooney, I have proceeded on the basis that the plaintiff seeks to set aside the dismissal of the action only as against those defendants.
[4] Also relevant to this motion is the fact that Stefan Glynn, a passenger in the vehicle operated by the plaintiff Langemann, commenced his own personal injury action on May 23, 2013 (CV-13-480975) naming as defendants Langemann, St. Pierre and Mooney. on February 6, 2018, the plaintiff also commenced an action against his former counsel.
[5] For these reasons, the plaintiff’s motion is granted and the dismissal order set aside.
The Law
[6] The factors to be considered on this motion were reviewed by the Court of Appeal in Habib v. Mucaj, 2012 ONCA 793, at paragraphs 5-7:
5 There are four well established factors to consider when deciding to set aside an order to dismiss an action: (i) explanation of the litigation delay - a deliberate decision not to advance the litigation will usually be fatal; (ii) inadvertence in missing the deadline - the intention always was to set the action down within the time limit; (iii) the motion is brought promptly - as soon as possible after the order came to the party's attention; and (iv) no prejudice to the defendant - the prejudice must be significant and arise out of the delay: Reid v. Dow Corning Corp. (2001), 11 C.P.C. (5th) 80 (Ont. Div. Crt.).
6 No one factor is necessarily decisive of the issue. Rather, a "contextual" approach is required where the court weighs all relevant considerations to determine the result that is just. Here, the Master specifically referenced the proper test and engaged in the weighing exercise. He found that, after the weighing exercise, the just result was to set aside the dismissal order. The Master's order was discretionary and was made as part of his duty to manage the trial list. The decision, therefore, attracts significant deference from a reviewing court: Finlay v. Van Paassen, 2010 ONCA 204.
7 Furthermore, on a motion to set aside a dismissal order, the court should be concerned primarily with the rights of the litigants, not with the conduct of their counsel. However, where the lawyer's conduct is not inadvertent but deliberate, this may be different: Marché d'Alimentation Denis Thériault Ltée. v. Giant Tiger Stores Ltd. (2007), 2007 ONCA 695, 87 O.R. (3d) 660 (O.C.A.), at para. 28. . . . .
Consideration of the Reid v. Dow Corning Factors
(i) Explanation of the Litigation Delay
[7] The chronology of the relevant events in the action, up to the plaintiff’s retainer of his current counsel, is as follows:
February 1, 2012: The plaintiff was involved in the subject motor vehicle accident.
May 23, 2013: Stefan Glynn, the plaintiff Langemann’s passenger, commenced his own action (“the Glynn action”) naming Langemann, St. Pierre and Mooney as defendants.
January 17, 2014: The statement of claim in this action was issued by the plaintiff Langemann’s former counsel naming Daniel Mooney as the owner of the defendants’ vehicle and John Doe as the operator.
May 13 and 15, 2014: Examinations for discovery were held in the Glynn action, including an examination for discovery of St. Pierre by Langemann’s defence counsel in that action. Counsel for St. Pierre and Mooney deposes in his affidavit that he was in attendance at this examination and that he “verily believes” that both of Mr. Langemann’s counsel had access to St. Pierre’s evidence, but he does not specifically state that counsel for Langemann as plaintiff was present.
September 2, 2014: A statement of defence was delivered on behalf of Daniel Mooney and John Doe.
February 26, 2015: The examinations for discovery were conducted of the plaintiff Langemann and the defendant Mooney. (Despite the evidence in plaintiff’s counsel’s own affidavit that Mooney’s examination was conducted on this date, the plaintiff asserted in his factum that neither of the defendants were examined for discovery. I rely on the sworn affidavit rather than the factum.)
September 10, 2015: According to the plaintiff’s factum, the action was discontinued against the defendant TD. As stated above, the notice of discontinuance is not dated and the court’s case history does not record the notice having been filed.
April 19, 2016: Master Wiebe granted an order that the statement of claim be amended to substitute Shane St. Pierre for “John Doe” as the operator of the defendants’ vehicle.
September 1, 2016: A global mediation of the action was held, and failed.
July 12, 2017: The plaintiff terminated the retainer of his former counsel and retained his current counsel.
September 22, 2017: The plaintiff’s current counsel delivered a notice of change of lawyer.
[8] The defendants do not allege periods of unexplained delay before the September 1, 2016 mediation. However, the defendants submit that there is no explanation for the approximately 11 month delay between the September 1, 2016 mediation and the plaintiff retaining new counsel on July 12, 2017.
[9] Following the mediation, the plaintiff could reasonably have expected his former lawyer to take steps to advance the matter. Langemann’s evidence in his own affidavit is that during the period between the issuing of the statement of claim on January 17, 2014 and the delivery of his current counsel’s notice of change of lawyer on September 22, 2017, he would contact his former lawyer approximately every 3 months seeking information and updates regarding his case. In response, his former lawyer consistently informed him that his action was proceeding in the normal course, although he provided no detailed information in that regard. For approximately 11 months following the mediation, the plaintiff did not receive regular communications or updates from his former lawyer, so he chose to terminate the retainer.
[10] Although I accept that there is no explanation for this delay from the former lawyer, the plaintiff’s unchallenged evidence is that he contacted his lawyer for updates approximately every three months, including during the period between the mediation and his retainer of his current counsel, and received nothing more than broad assurances that the matter was proceeding. The delay during this period was therefore clearly the responsibility of the lawyer rather than of the plaintiff himself.
[11] The remaining period of delay is the one year and approximately five months between the current lawyer’s notice of change of lawyers delivered September 22, 2017 and the dismissal of the action on February 13, 2019. The evidence of the plaintiff’s current lawyer is that on August 25, 2017, he received a CD from the former lawyer containing the file consisting of 5075 pages of documents. I accept the current lawyer’s evidence that this file took a substantial amount of time to review.
[12] Between October 12, 2017 and November 3, 2017, there was an exchange of correspondence between the defendants’ counsel and the plaintiff’s new counsel, as follows:
October 12, 2017: Defendants’ counsel briefly summarized their position on liability and enquired as to the prospect of settlement based on the offer made at mediation.
October 25, 2017: Plaintiff’s counsel enquired as to defendants’ counsel’s availability for various proposed dates for the examination for discovery of the defendants.
November 3, 2017: Defendants’ counsel stated that his client had been examined for discovery in the “parallel action” on May 15, 2014 and they had proposed that that examination be adopted as his examination in this action. Defendants’ counsel enquired whether the plaintiff was prepared to proceed in that manner; if so, he was authorized to order a transcript of his client’s examination.
[13] There is no evidence of any further communication from plaintiff’s counsel to defendants’ counsel, either in response to the letter of November 3, 2017 or otherwise, until July 10, 2018, when a legal assistant in his office forwarded his available dates for an examination for discovery of the defendant. Plaintiff’s counsel himself sent a further email communication on July 24, 2018, stating that “I cannot adopt the evidence your client already gave in a parallel action given that I have never seen a transcript in this regard.”
[14] Plaintiff’s counsel’s response to defendants’ counsel’s suggestion with respect to the use of the defendant’s transcript came more than eight months after the November 3, 2017 letter. Plaintiff’s counsel’s explanation for the delay between November 3, 2017 and July 10, 2018 is that he formed the opinion that, prior to setting the action down for trial, it was necessary to obtain a formal statement from Stefan Glynn, the passenger in the plaintiff Langemann’s vehicle. Although Glynn had been married to Langemann’s sister, and on that basis should have been easy to locate, the couple separated in 2016, so it was necessary to retain an investigator to locate him. Plaintiff’s counsel deposes that he received the investigator’s report on July 9, 2018.
[15] This is not a reasonable explanation for the delay between November 3, 2017 and July 10, 2018. I accept that it was reasonable to obtain a statement from Mr. Glynn. I do not accept that it was reasonable to ignore all other aspects of the action, including the examination of Mr. St. Pierre, while that statement was being obtained. This eight month period of delay has therefore not been explained.
[16] Further, the plaintiff suggested, both in his counsel’s supplementary affidavit and in argument, that the defendants providing a transcript of St. Pierre’s evidence given in another action, absent an order for trial together and common examinations, would constitute a breach of a deemed undertaking under rule 30.1 of the Rules of Civil Procedure. This submission has no merit whatsoever. Rule 30.1.01(3) prevents parties and their lawyers from using evidence obtained through examinations for discovery in a proceeding for any purpose other than in that proceeding. However, subrule (4) clearly states that the general rule “does not prohibit a use to which the person who disclosed the evidence consents ” (emphasis added), and St. Pierre’s counsel, who was acting in both actions, would have authority to give that consent on behalf of his client.
[17] Once again, however, this period of delay is attributable to plaintiff’s counsel, and not to the plaintiff himself. I will take this into account in my contextual analysis of all of the Reid factors.
[18] Defendants’ counsel failed to respond to plaintiff’s counsel’s two email messages of July 10 and July 24, 2018, seeking to arrange an examination of St. Pierre. Plaintiff’s counsel sent defendants’ counsel a further message on December 18, 2018, again providing his available dates for an examination of the defendant. Defendants’ counsel responded to this message on the same date, stating that St. Pierre had been examined with respect to the accident by counsel for Langemann (presumably his defence counsel) in May, 2014, and reiterating that he was prepared to provide the transcript from this examination.
[19] In his December 18, 2018 correspondence, defendant’s counsel also advised that he was informed in October that St. Pierre “is terminally ill and was not expected to live until Christmas”.
[20] On receiving plaintiff’s counsel’s two email messages in July, 2018, it was incumbent on defendants’ counsel to respond promptly. Defendants’ counsel’s failure in this regard makes him responsible for the five months of delay between July 10, 2018 and December 18, 2018.
[21] Plaintiff’s counsel did not respond to defendants’ counsel’s December 18, 2018 correspondence until March 7, 2019, after the dismissal of the action and immediately thereafter, defendants’ counsel advised of the dismissal. There is no explanation from plaintiff’s counsel for the delay in responding so there is additional unexplained delay of less than two months.
[22] The further period of unexplained delay totals no more than 10 months, consisting of eight months between November 3, 2018 and July 10, 2018 and less than two months between December 18, 2018 and the dismissal order of February 13, 2019. Combined with the earlier period of 11 months, the total period of unexplained delay is 21 months.
[23] The plaintiff also attempted to explain the delay in the matter on the basis that he was involved both in a matter relating to his accident benefits claim before the Licence Appeal Tribunal and a Family Court matter. The fact that he was involved in these other legal proceedings does not explain the delay in taking necessary steps in his tort action nor does it justify his failure to do so. In any event, as indicated, the delays were the result of the actions or inaction of his lawyers and not of him personally.
(ii) Inadvertence in Missing the Deadline
[24] The plaintiff Langemann’s unchallenged evidence is that neither of his lawyers told him that the action would be subject to administrative dismissal if it were not set down by January 17, 2019, and that he always intended to proceed with the action even to the extent that he changed counsel so that it would be better prosecuted. Plaintiff’s counsel’s evidence is that he inadvertently failed to diarize the deadline for setting the action down. Counsel attributes this inadvertence to his focus on clarifying the evidence of Stephen Glynn and conducting an examination for discovery of the defendant St. Pierre, but there is no reason that taking these steps in the action would preclude diarizing a deadline.
[25] In paragraph 7 of Habib, supra, the Court of Appeal draws a distinction between a lawyer’s conduct being inadvertent as opposed to deliberate. Although the failure of plaintiff’s counsel to diarize the applicable deadline was at the very least sloppy practice, there is no evidence to suggest that the deadline was missed deliberately. I therefore conclude that the deadline was missed through inadvertence.
(iii) The Motion is Brought Promptly
[26] The dismissal order was issued by the registrar on February 13, 2019. Plaintiff’s counsel acknowledges that the order was received in his office on February 19, 2019 but he was not aware of it. He first learned of the dismissal order on March 8, 2019 when he was informed of it by the defendants’ counsel. The original motion date of May 1, 2019 was requisitioned on March 25, 2019 and the plaintiff’s motion record was served on March 27, 2019.
[27] The motion to set aside the dismissal order was served 36 days after the order was received in plaintiff’s counsel’s office and 19 days after he actually learned of the order. Even in the absence of a reasonable explanation for plaintiff’s counsel not being aware of the order when it was received in his office, I accept that serving the motion record within approximately five weeks of learning of the order is sufficiently prompt to comply with this factor.
(iv) No Prejudice to the Defendant
[28] The onus is on the plaintiff to demonstrate that the if the action were to proceed, there would be no prejudice to the defendants arising from the delay (see: Habib, supra, para.5(iv)). If the plaintiff can meet this onus, then the defendants may attempt to establish actual prejudice by leading evidence to that effect.
[29] The plaintiff has provided evidence that all relevant documents have been preserved, the defendants have the plaintiff’s up-to-date affidavit of documents, and there are no outstanding requests for productions from the plaintiff (counsel’s affidavit para. 57). As the defendants have raised no issue of prejudice with respect to the preservation of documents, I accept that the plaintiff has rebutted any presumption of prejudice in that regard.
[30] The issue with respect to prejudice is whether, as a consequence of any unexplained delay, the defendants are prejudiced in their ability to defend the liability issue by Mr. St. Pierre’s serious illness.
[31] The defendants submit that, owing to the plaintiff’s delay, the defendant St. Pierre’s medical condition has progressed to the point that he will not likely be available to give viva voce evidence at trial, either through incapacity or death. They further submit that even though St. Pierre’s evidence regarding liability for the accident has been preserved through his examination for discovery in the Glynn action conducted in May, 2014, the fact that he may not be able to testify in person at trial is prejudicial to the defence of the action. I accept that the unavailability of a witness owing to poor health or death can be prejudicial to the parties that would rely on that evidence (see: Quon & Associates Ltd. v. Kwiatkowski Enterprises Ltd., 2003 CarswellOnt 6236 (S.C.J.) at para. 5).
[32] The first issue with respect to the prejudice alleged by the defendants is whether there is sufficient evidence that St. Pierre will not be available to testify at trial. As stated, the defendants’ counsel informed plaintiff’s counsel on December 18, 2018 that he learned in October that the defendant St. Pierre was terminally ill and was not expected to live until Christmas. Further information with respect to St. Pierre’s health and availability is contained in an affidavit of the defendant Daniel Mooney and a more recent affidavit from defendants’ counsel.
[33] Daniel Mooney deposes in his affidavit dated April 25, 2019 that St. Pierre has been a close friend for many years. Based on their discussions, he deposes that St. Pierre is terminally ill with cancer. St. Pierre has informed him that all of his days are “bad days” and there is no predicting how bad a day will be. On occasion, St. Pierre has told him that he is too weak even for a brief visit. He was spending most of his time sleeping, was not able to drive, and did not leave home unless required to attend physicians’ appointments. He has received chemotherapy, which has resulted in significant side effects.
[34] The defendants’ counsel, in an affidavit bearing the date June 11, 2019 (on which the commissioner’s signature is not dated and which refers to an event on June 19, 2019), provides some very vague evidence that he is “advised by file review” that his office has been unable to speak to St. Pierre directly given his medical condition. He “verily believes” that St. Pierre’s frequent trips to the hospital combined with his medical condition have made it difficult for them to discuss the matter with him. Once again based on “file review”, they have attempted to obtain medical evidence from St. Pierre or his wife but have not been able to obtain a response. The affidavit refers to a brief conversation with St. Pierre on June 11, 2019 in which he stated that he could not speak because he was on his way to the hospital, and a further unsuccessful attempt to contact him on June 19, 2019.
[35] Based on the unchallenged evidence of the defendant Mooney, who has personal contact with St. Pierre, as of April 25, 2019, St. Pierre was terminally ill with cancer and was often too weak even for a brief visit. I accept that in these circumstances, it is plausible that St. Pierre could not attend at an examination for discovery and will not be able to testify at trial. What is more troublesome, however, is the vague nature of the evidence from defendants’ counsel. Conspicuous by its absence is any evidence whatsoever of St. Pierre’s capabilities in October, 2018 when he apparently first informed his counsel of his illness. The court cannot simply assume that he had the same limitations then as described by Mooney six months later in April, 2019.
[36] For the purpose of this motion, I will accept that there is sufficient evidence from Mooney to conclude that St. Pierre cannot now attend to be examined for discovery and will not be able to attend at trial. I further accept that St. Pierre’s inability to attend at trial will be prejudicial to the defendants. However, the remaining issue to be addressed in the contextual analysis of all of the factors on this motion is whether any prejudice arises from the delay for which the plaintiff is responsible or whether there are other contributing factors.
Contextual Analysis of Reid Factors
[37] In summary, my findings with respect to my consideration of the four Reid factors are:
- The plaintiff has not satisfactorily explained the delays of approximately 11 months between the September 1, 2016 mediation and his retainer of new counsel in July, 2017, approximately eight months between his current counsel’s first attempt to arrange an examination for discovery of St. Pierre in October, 2017 and the subsequent attempt in July, 2018, and less than two months between December 18, 2018 and the dismissal of the action on February 13, 2019.
- The missing of the deadline for setting the action down for trial was inadvertent.
- The plaintiff moved promptly to set aside the dismissal order after learning of the dismissal.
- The defendant St. Pierre’s serious illness is prejudicial to the defendants’ ability to defend the action; the issue is whether any such prejudice is attributable to any delay for which the plaintiff is responsible.
[38] These findings must be considered in the context of the action as a whole.
[39] Not all unexplained delay is fatal to the setting aside of a dismissal order. In Finlay v. Van Paassen, supra, the Court of Appeal held that a two year delay in moving to set aside a registrar’s dismissal order was not a sufficient reason for the motions judge to refuse to set aside the order. The fact that this delay was after the dismissal instead of before it is immaterial. On this basis, a total delay of 21 months should not preclude the setting aside of the order.
[40] Also as stated in Finlay, supra and cited with approval at paragraph 7 of Habib, supra, “on a motion to set aside a dismissal order, the court should be concerned primarily with the rights of the litigants, not with the conduct of their counsel ” (emphasis added). The first period of unexplained delay occurred in the context of a failure of the plaintiff’s former lawyer to provide him with any concrete information as to the progress of the action, despite the plaintiff making regular requests for updates. The second period of delay occurred as a result of plaintiff’s current counsel’s misguided view that he could not continue to advance the action while at the same time attempting to obtain a statement from the plaintiff’s passenger Stephen Glynn. Both periods of delay, although not satisfactorily explained by either of the plaintiff’s lawyers, were clearly not the fault of the plaintiff himself. These periods of delay should therefore not preclude the setting aside of the dismissal order unless they have in themselves resulted in non-compensable prejudice to the defendants.
[41] The crucial issue to be addressed is whether any prejudice to the defendants arising from St. Pierre’s serious illness resulted solely from the delay on the part of plaintiff’s counsel.
[42] From a review of all of the evidence, there are a number of reasons unrelated to the conduct of plaintiff’s counsel that have significantly contributed to the fact that St. Pierre’s viva voce evidence will not be available at trial.
[43] First, defendants’ counsel contributed to the delay by refusing to make St. Pierre available to be examined for discovery when the plaintiff’s current counsel sought to examine him in October, 2017. The fact that St. Pierre was examined by Langemann’s defence counsel in the Glynn action in May, 2014 was not a valid reason for St. Pierre’s counsel to deny Langemann’s plaintiff’s counsel the opportunity to conduct his own examination. There is no evidence that Langemann’s plaintiff’s counsel was aware of or present at St. Pierre’s May, 2014 examination, so he had the right to examine him, at the very least with respect to questions not already asked at the original examination. Defendants’ counsel should not have denied Langemann’s plaintiff’s counsel that right.
[44] Second, defendants’ counsel contributed to the delay by not responding to plaintiff’s counsel’s two letters in July, 2018 until five months later when a follow-up letter was sent in December, 2018.
[45] Third, on learning of St. Pierre’s illness in October, 2018, defendants’ counsel apparently made no attempt to preserve his evidence by using rule 36.01 of the Rules of Civil Procedure to take his evidence before trial. Rule 36.01(2) states:
36.01(2) A party who intends to introduce the evidence of a person at trial may, with leave of the court or the consent of the parties, examine the person on oath or affirmation before trial for the purpose of having the person’s testimony available to be tendered as evidence at the trial.
[46] Rule 36.01(3)(b) specifically contemplates that the rule be used in the circumstances that arose in this case:
36.01(3) In exercising its discretion to order an examination under subrule (2), the court shall take into account . . .
(b) the possibility that the person will be unavailable to testify at the trial by reason of death, infirmity or sickness;
[47] As stated above, the court cannot assume that St. Pierre had the same limitations in October, 2018 as in April, 2019 and there is no evidence that he would not have been able to give evidence in October, 2018. Under rule 34.19(1), an examination under rule 36 can be recorded on videotape and thus be put in evidence at trial as viva voce evidence. In October, 2018, only the defendants’ counsel was aware of St. Pierre’s condition. Defendants’ counsel has significantly contributed to any prejudice that could result from St. Pierre’s inability to testify at trial by failing to mitigate against that likelihood by taking his evidence before trial. He has also provided no explanation for his failure to do so.
[48] Fourth, even absent a videotaped recording of St. Pierre’s evidence, there is a transcript available of his liability evidence given on his examination for discovery in the Glynn action. In resisting the efforts of plaintiff’s counsel to conduct an examination for discovery of St. Pierre, defendants’ counsel more than once expressed the view that Langemann should be able to rely on St. Pierre’s discovery transcript, so he must be satisfied that the examination of St. Pierre in the Glynn action was sufficiently complete to constitute a complete record of his liability evidence. Rule 31.11(6) of the Rules of Civil Procedure provides for the use of a party’s examination for discovery evidence at trial:
31.11(6) Where a person examined for discovery,
(a) has died;
(b) is unable to testify because of infirmity or illness; . . .
any party may, with leave of the trial judge, read into evidence all or part of the evidence given on the examination for discovery as the evidence of the person examined, to the extent that it would be admissible if the person were testifying in court.
[49] The fact that St. Pierre’s evidence was given in a different action should not preclude its use in this action. Rule 31.11(8) contemplates the use of a party’s discovery evidence from one action at the trial of another action:
31.11(8) Where an action has been discontinued or dismissed and another action involving the same subject matter is subsequently brought between the same parties or their representatives or successors in interest, the evidence given on an examination for discovery taken in the former action may be read into or used in evidence at the trial of the subsequent action as if it had been taken in the subsequent action.
[50] Finally, even if plaintiff’s counsel had set the action down before the court-mandated deadline, say in July, 2018, before even defendants’ counsel knew about St. Pierre’s illness, the matter would not have been reached for trial for approximately a year and the defendants would be in no different position than they are now. They would still only be able to present St. Pierre’s viva voce evidence at trial if they preserved it under rule 36.01, which they never did, and they would still be in the position of relying on St. Pierre’s evidence from his examination in the Glynn action, which they maintain is complete.
[51] Essentially, the prejudice that arises from St. Pierre’s illness and his likely unavailability for trial results as much from his own counsel’s refusal to produce him to be examined for discovery, and failure to preserve his evidence on learning of his illness, as it does from the delay for which plaintiff’s counsel is responsible. It should be noted that in Quon v. Kwiatkowski, supra, relied on by the defendants, there was no suggestion that the delay in the matter was in any respect attributable to the party opposing the setting aside of the dismissal, or that any witnesses’ evidence could have been preserved under rule 36.01 or was available in a discovery transcript.
[52] I conclude that the prejudice to the defendants arising from St. Pierre’s illness is not sufficiently a consequence of the delay on the part of plaintiff’s counsel to justify denying the plaintiff the opportunity to have his case determined on the merits. The plaintiff should therefore be permitted to proceed with the action.
[53] The registrar’s dismissal order of February 13, 2019 is hereby set aside. Given the unchallenged evidence of the defendant Mooney with respect to the defendant St. Pierre’s medical condition, which indicates that he will not be able to attend an examination, I make no order with respect to his examination for discovery. There appears to have been no other reason for the delay in setting the action down for trial so the plaintiff should be able to set it down in the near future. The action shall be set down for trial by August 30, 2019.
Costs
[54] Plaintiff’s counsel advised that he would not be seeking costs of the motion, even if successful. The defendants provided a costs outline at the conclusion of the hearing and I informed counsel that I would give them the opportunity to make written submissions in the event that I ruled that the dismissal order should be set aside. If the parties cannot agree to the disposition of the costs of the motion, they shall provide written submissions, the defendants within 20 days and the plaintiff within 20 days thereafter. Submissions shall not exceed three pages. For the assistance of counsel in resolving the issue, my current inclination is to award the costs of the motion to the defendants in the cause, such that the costs would be recoverable only in the event that the defendants are successful in achieving a dismissal of the action.
MASTER A. GRAHAM
DATE: July 4, 2019