McNeill v. Sun Life Insurance Company of Canada, 2019 ONSC 4351

BARRIE COURT FILE NO.: CV-07-958-00

DATE: 20190718

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

CINDY McNEILL

Plaintiff

– and –

SUN LIFE INSURANCE COMPANY OF CANADA

Defendant

Mr. D. Iny, for the Plaintiff

Mr. S. Simpson, for the Defendant

HEARD: April 12, 2019

REASONS FOR DECISION

VALLEE J.:

INTRODUCTION

[1] This action concerns events that occurred in 2004 and 2005. A Notice of Action was issued on August 27, 2007. After obtaining leave on September 30, 2009, the plaintiff served and filed the Statement of Claim. The plaintiff did not serve an affidavit of documents. No examinations were held. Ultimately, the action was dismissed for delay on May 3, 2017, pursuant to a Registrar’s order. The plaintiff brings this motion to set aside the order. The defendant opposes the motion for several reasons including the fact that the action concerns events that occurred 15 years ago. No adequate explanation has been provided for the delay. The defendant states that given the passage of time, it would be severely prejudiced if the action is permitted to continue.

BACKGROUND

[2] This matter concerns a number of events that took place between 2004 and 2018. Counsel kindly provided me with chronologies. The chart below is one of the chronologies with some adjustments. Because this matter concerns sensitive information about the plaintiff’s counsel’s mental health and psychiatric records, I will refer to him as Mr. A. His actual name is not relevant to my determination of this motion.

Date	Event
March 2007	Ms. McNeill retains Mr. A.
August 27, 2007	Notice of Action issued. Mr. A. fails to serve and file Statement of Claim within 30 days.
November 15, 2007	Ms. McNeill’s employment with Sun Llife ends.
2007-2009	Ms. McNeill suffers from a variety of health problems, including chronic migraines, fibromyalgia and irritable bowel syndrome.
2007-2009	Ms. McNeill contacted Mr. A.’s office on various occasions to inquire about status of claim.
2008	In 2008, phone records show Ms. McNeill called Mr. A. at least 3 times from her cell phone to inquire about the status of her claim (in addition to payphone calls and emails).
2009	In 2009, phone records show Ms. McNeill called Mr. A. at least 5 times from her cell phone to inquire about the status of her claim (in addition to payphone calls and emails).
March 24, 2009	Mr. A. brings motion for leave to serve and file Statement of Claim.
May 5, 2009	Sun Life files Responding Motion Record, including the affidavit sworn by Bob Parent on which Sun Life relies in this motion.
September 30, 2009	McIsaac J. grants motion for leave to file Statement of Claim, save for claims related to the wrongful dismissal and LTD benefits. He states that prejudice to date can be cured by examinations for discovery.
October 29, 2009	Mr. A. files a Notice of Appeal from McIsaac J.’s order, but fails to perfect the appeal within 60 days.
December 2009	Mr. A. is diagnosed with Obstructive Sleep Apnea (OSA) and Atrial Fibrillation. The symptoms, which began throughout 2009, caused him severe fatigue and forced him to reduce his working hours.
December 30, 2009	Appeal dismissed by the Registrar of the Court of Appeal for failure to perfect.
2010	Mr. A. receives treatment for OSA and other health conditions which require hospitalization and time off work. On his doctor’s advice, Mr. A. reduces his work hours. He also experiences symptoms of depression and anxiety. He begins taking Cipralex
2010	In 2010, phone records show Ms. McNeill called Mr. A. at least 7 times from her cell phone to inquire about the status of her claim (in addition to payphone calls and emails).
April 1, 2010	Mr. A.’s law clerk notes that Ms. McNeill contacted the office seeking an update. She tells Mr. A. to “please call & give her an update”.
June 2010	Mr. A. hires an associate, Ms. T, to assist with his workload. Ms. T. writes to Ms. McNeill advising of their intention to bring a motion to set aside the Registrar’s dismissal of the appeal.
July 22, 2010	Mr. A.’s law clerk notes that Ms. McNeill contacted the office seeking an update; the law clerk updated her on the motion.
August 5, 2010	Amended Notice of Motion to set aside the Registrar’s dismissal. Materials include an affidavit from Mr. A. regarding his medical diagnosis in December 2009.
August/September 2010	Watt J.A. hears motion on August 27 to set aside the Registrar’s dismissal. The motion is dismissed. On September 22, costs are ordered against the Plaintiff, which Mr. A. pays because he believes that he personally bore responsibility for the delay.
October 26, 2010	Mr. A.’s law clerk notes that Ms. McNeill contacted the office seeking an update; she was advised that Ms. T. was working on the claim.
December 2010	Mr. A. is referred to a Mental Health and Addiction Program at Royal Victoria Hospital to receive psychiatric treatment. However, due to long wait times, the appointment was delayed.
2011	In 2011, phone records show Ms. McNeill called Mr. A. at least 20 times from her cell phone to inquire about the status of her claim (in addition to payphone calls and emails).
February 2011	Mr. A.’s law clerk notes that Ms. McNeill contacted the office seeking an update and advised of her health issues. Mr. A. and Ms. T. finalize the plaintiff’s Statement of Claim. Ms. T. calls Ms. McNeill to apologize and inform her that they do not intend to neglect the file, and that she would send a copy of the claim once it was issued.
April 7, 2011	Statement of Claim served on Sun Life.
May 5, 2011	Sun Life serves Notice of Intent to Defend.
October 2011	Sun Life brings a motion to strike portions of the Statement of Claim.
December 20, 2011	Healey J. hears Sun Life’s motion to strike.
2011-2012	Mr. A.’s mental illness continues. He takes Cipralex to treat anxiety and depression. His symptoms include extreme procrastination, decreased energy, decreased motivation, persistent fatigue. During this time he has suicidal thoughts. Dr. Mulder, Chief of Psychiatry at the Royal Victoria Hospital, diagnoses major depressive disorder, significant difficulty with procrastination, with some social isolation and limited close supports among other things.
2012	In 2012, phone records show Ms. McNeill called Mr. A. at least 20 times from her cell phone to inquire about the status of her claim (in addition to payphone calls and emails).
February 17, 2012	Mr. A. sends a letter to Ms. McNeill about Healey J.’s decision which allowed the claim to proceed except for two paragraphs.
February 2012	Mr. A. writes to Ms. Kraf, counsel for Sun Life, requesting Sun Life’s Statement of Defence.
March 15, 2012	Sun Life delivers its Statement of Defence. Ms. Kraft requests Ms. McNeill’s affidavit of documents and proposes that the parties schedule discoveries. Mr. A. does not respond.
March 2012 – May 2017	Ms. Kraft takes no further step on Sun Life’s behalf in the next 5 years.
March 23, 2012	Mr. A.’s law clerk exchanges emails with Ms. McNeill to prepare her Affidavit of Documents. The clerk completes a draft Affidavit of Documents and provides it to Mr. A. for his review. Mr. A. does not finalize it.
August 10, 2012	Mr. A.’s law clerk notes that Ms. McNeill contacted the office seeking an update on the status of her claim.
September 25, 2012	Mr. A.’s law clerk notes that Ms. McNeill contacted the office seeking an update on the status of her claim. The clerk told her that the draft Affidavit of Documents was given to Mr. A. She apologizes for the delay.
October 2012	Mr. A.’s mental health worsens. Dr. Mulder’s psychiatrist report for Mr. A. describes chronic procrastination linked to depression and anxiety, occasionally leading to suicidal thoughts. Dr. Mulder’s diagnostic impression is that Mr. A. has a major depressive disorder.
November 29, 2012	Dr. Mulder prescribes Abilify to augment the other anxiety and depression medication that Mr. A. is taking.
2013-2014	The symptoms of Mr. A.’s mental illness improve slightly but he continues to experience chronic depression, as well as complications related to morbid obesity, diabetes and OSA.
2013-2014	Mr. A. is overwhelmed by his practice. While Ms. T. had been assisting him, during this time, she began to work on her own files.
2013	In 2013, phone records show Ms. McNeill called Mr. A. at least 12 times from her cell phone to inquire about the status of her claim (in addition to payphone calls and emails).
March 18, 2013	Mr. A. has a follow-up appointment with Dr. Mulder, who reports continued symptoms of depression and anxiety, as well as grief (relatead to his father’s death), but also some ability to cope.
April 29, 2013	Mr. A. has another appointment with Dr. Mulder, who reports that Mr. A. is continuing to improve. He begins to taper off Apriprazole.
2014	Ms. McNeill continues to suffer from recurring health problems, including anxiety, migraines, skin cancer and liver cysts, which required periods of hospitalization and recovery.
2014	In 2014, phone records show Ms. McNeill called Mr. A. at least 4 times from her cell phone to inquire about the status of her claim (in addition to payphone calls and emails).
2014	Ms. T. left the firm.
2015	Mr. A.’s mental health deteriorates significantly. He is prescribed Wellbutrin in addition to Cipralex.
June 16, 2015	Ms. McNeill contacts Mr. A.’s office with a news article regarding a government whistle-blower program that she believes is relevant to her claim.
August 7, 2015	Mr. A. is referred back to Dr. Mulder due to worsening depression symptoms. Wellbutrin and Trintellix were not relieving Mr. A.’s symptoms.
February 22, 2016	Ms. McNeill contacts Mr. A.’s office for an update on the status of her claim and to provide updated client information.
June 2016	Dr. Mulder notes that Mr. A. is experiencing the same symptoms observed in 2012-2013, and that the medications he had previously been prescribed (Cipralex, Wellbutrin) are not working. Also, Mr. A.’s younger brother dies suddenly, which prolongs and deepens Mr. A.’s depression.
Mid-2016	Due to his deteriorating mental health, Mr. A. advises Ms. McNeill that he is not in a position to pursue her claim and that she should obtain new counsel. Mr. A. was not formally removed from the record.
July 2016	Mr. A. spoke to Ms. McNeill on the phone to advise that she could come pick up her file. Mr. A. believed that the Ms. McNeill intended to proceed with her action. Ms. McNeill picked up her file.
July 2016 to May 2017	Ms. McNeill does not retain new counsel. She had continued health problems. She had approximately 45 medical appointments scheduled and attended almost all of them. She was experiencing withdrawal symptoms as a result of her decreasing her pain and anxiety medication. She was assisting her aging mother.
May 3, 2017	The action was administratively dismissed pursuant to Rule 48.14. Ms. McNeill received a letter from Mr. A. enclosing a copy of the dismissal order. Ms. McNeill retained new counsel Ms. L. Kolyn in two weeks.
August 9, 2017	Mr. A. sees Dr. Mulder for a follow-up appointment. The doctor’s notes state that Mr. A. is facing significant financial pressures, due in part to his continued tendency to procrastinate.
September 18, 2017	Following Mr. A.’s reporting to LawPRO, Mr. D. Iny is retained by LawPRO as Investigative Counsel.
October 2017	Mr. Iny contacts Ms. Kraft to speak about his ongoing investigation.
November 13, 2017	Mr. A. sees Dr. Mulder for a follow-up appointment. The doctor notes that there has been no improvement. Mr. A. is again feeling overwhelmed and is not able to keep up with his workload.
April 2018	LawPRO instructs Mr. Iny to bring this repair motion to set aside the Registrar’s dismissal order, subject to the agreement of the plaintiff and Mr. A.
May 2018	Mr. Iny and Ms. Kraft exchange various emails in connection with the proposed motion date for this motion.
May 17, 2018	Mr. A. is suspended by the Law Society for professional misconduct in failing to reply to 11 Law Society communications over a 12-month period.
May 22, 2018	Mr. Iny delivers the Notice of Motion for this motion.

ISSUES TO BE DETERMINED

[3] Should the Registrar’s order, dated May 3, 2017, dismissing the action for delay be set aside? Specifically, according to the test in Reid v. Dow Corning Corp (2001), 11 CPC (5th) 809 para 41:

(a) Has the plaintiff provided an adequate explanation for the delay?

(b) Was the deadline missed due to inadvertence?

(c) Was the motion brought promptly?

(d) Will there be prejudice to the defendant if the action is permitted to continue?

APPLICABLE LAW

[4] The failure to satisfy one of the factors is not necessarily fatal. A contextual analysis is appropriate. The court must attempt to balance the interests of the parties. (see Scaini v. Prochnicki, 2007, ONCA at para 21)

[5] If the solicitor or the client made a deliberate decision not to advance the litigation, this will weigh against the plaintiff. If no deliberate decision was made, the court must consider the conduct of the plaintiff and the lawyer in failing to move the action forward. (See Madison v. Nindon Investments Ltd., 2015 ONSC 3786 at para 19)

[6] Moving an action along is the lawyer’s job. Litigants rely on them. A plaintiff is not required to show that she made consistent efforts to oversee a lawyer’s work. The plaintiff must show that she always intended the action to proceed to trial, she did not assent to the delay, she reasonably assumed it was proceeding and that she made appropriate inquiries of her lawyer. (See Madison at paras 26 and 27)

[7] When an action was dismissed and the lawyer did not tell the client because he was having significant mental health issues, this constituted a reasonable explanation for the delay in moving the matter forward. There was a nine-month LawPro investigation before the motion was brought. The court found that this satisfied the requirement that the motion be brought promptly. (See Cornell v. Tuck, 2018 ONSC 7085 at paras 59 and 97)

[8] Where an action was commenced in 2006, the Registrar dismissed it for delay on December 29, 2008, and the date for the motion was November 6, 2009, the court stated that the delay in bringing the motion was “far from desirable”. Nevertheless, it was not “egregious”. The Registrar’s order was set aside. (See Viola v. Tortorelli, [2010] O.J. No 5022 (Div. Ct.))

[9] The court must consider any prejudice to the defendant’s ability to defend the action that would arise from steps taken following dismissal, or which would result from restoration of the action following the Registrar’s dismissal. The plaintiff bears the primary responsibility for progress of the action. (See MDM Plastics Ltd. V. Vincor International Inc., 2015 ONCA 28 at paras 25 and 33)

[10] There is no burden on the defendant to explain the delay or to move the action to trial. (see Prescott v. Barbon, 2018 ONCA 504 at para 30)

[11] While a plaintiff bears responsibility for moving the action along, a defendant’s failure to display any sense of urgency undercuts the claim of actual prejudice. (see H.B. Fuller Company v. Rogers (Rogers Law Office), 2015 ONCA 173 para 42 quoting Aguas v. Rivard Estate, 2011 ONCA 494 at para 19)

[12] If a defendant must rely on witness’ testimony, a defendant does have some responsibility for locating witnesses during the action to preserve required evidence while litigation is ongoing. (see Kwik Snaks Ltd. v. Chepil, 2017 ONSC 2921 at para 31)

[13] The law will not ordinarily allow an innocent client to suffer the irrevocable loss of the right to proceed by reason of the inadvertence of his or her solicitor (see Marché D’Alimentation Denis Thériault Ltée v. Giant Tiger Stores Limited, 2007 ONCA 695 at para 28).

[14] While delay on its own does not amount to prejudice, where defendants did nothing for almost three years, an allegation that these three years contributed to their prejudice is illogical. (see Hubergroup Canada v. 2049669 Ontario Inc., ONSC 3784 at para 53)

[15] A plaintiff must show that she always intended to prosecute the action within the time limit set out in the Rules but failed to do so through inadvertence. (see Prescott at para 14)

[16] Where a delay was lengthy (action issued 1996, dismissed by Registrar in 1999, dismissal not discovered until 2003, motion to set aside brought in 2003, heard in 2005) and was caused by the solicitor effectively abandoning the file, the failure to move the case forward to trial is not mere inadvertence. (see Marché at para 27)

[17] The plaintiff should establish that she always intended the action to proceed, she did not assent to undue delay and either she assumed the action was proceeding and her assumption was reasonable, or she made appropriate inquiries of her lawyer. (see Madisen v. Nindon Investments Ltd., 2015 ONSC 3786 at para 28)

[18] Even where all documents were available to a defendant, when a plaintiff’s affidavit in support of a motion to set aside a dismissal failed to set out ‘will say’ information for the plaintiff’s witnesses, the plaintiff’s evidence was incomplete relating to the possible unavailability of viva voce evidence. Without knowing the oral testimony upon which the plaintiff would rely, the defendant could not know the witnesses that it would need to call or whether they would be available. The defendant was prejudiced. (see Deverett Professional Corporation v. Canpages Inc., 2013 ONSC 6954)

[19] When discoveries have not been held, memories have not been jogged, committed to writing under oath nor preserved, a defendant may be prejudiced because those memories will have faded. (see Nadarajah v. Lad, 2015 ONSC 925 at para 144)

[20] A moving party’s bald assertion that there is no evidence of prejudice to the defendant is not adequate. (see Faklan v. Niewiadomski, 2014 ONCA 697 at para 2)

[21] The court must balance the prejudice to the defendant in having the case proceed against the prejudice to the plaintiff in having the case dismissed. (see MDM Plastics Limited v. Vincor International Inc., 2015 ONCA 28 par 26)

[22] When examinations for discovery were held but the defendant took no further steps and argued that it was prejudiced because answers to undertakings were not provided and examinations were not continued, the defendant could not rely on this as a ground for prejudice. The defendant bears some obligation to move the matter forward. (See Draskovic v. Toronto Transit Commission, 2017 ONSC 7582 at para 46)

THE PLAINTIFF’S POSITION

[23] The plaintiff states that the defendant has not delivered an up to date affidavit in defence of this motion. The affidavit filed is dated 2009 and is the same one that was used on the motion before McIsaac J. when he granted leave to file the Statement of Claim except for her claims for wrongful dismissal and LTD benefits. There is no further affidavit evidence from the defendant from 2009 onward. This is relevant. All four of the plaintiff’s affidavits have not been tested by cross-examination so the evidence is unchallenged.

[24] Both the plaintiff and Mr. A. had been suffering from medical issues throughout this matter. The plaintiff suffered from severe gastrointestinal problems, nodes on her liver and skin cancer which required facial reconstruction. She provided a number of medical records.

[25] There is no doubt that the action has languished; however, the last step taken by the defendant was in 2012, when it delivered its Statement of Defence and requested the plaintiff’s affidavit of documents. Five years later, the action was dismissed for delay. This provides context and is relevant to prejudice.

[26] The plaintiff states that despite her constant health problems, she intended to pursue the litigation. She never abandoned it. She believed that Mr. A. was acting in her best interests to advance the litigation. She trusted him to take the correct steps. She has provided phone records up to 2013 which show that she made 78 calls to him. The records after 2013 are not available. The plaintiff states that she never assented to undue delay.

The First Period

[27] The plaintiff states that there are three periods relating to the action. The first period encompasses the time up to McIsaac J.’s decision dated September 30, 2009. He granted leave to the plaintiff to serve her Statement of Claim despite the delay up to that time. Any delay between August 2007, when the Notice of Action was issued, up to September 30, 2009 period is not relevant to this motion.

The Second Period

[28] The second period encompasses October 1, 2009 to March 2012, when the Statement of Defence was served. In October 2009, Mr. A. filed a notice of appeal regarding McIsaac J.’s decision regarding the wrongful dismissal and LTD benefits claims. Mr. A. failed to perfect the appeal. The Court of Appeal Registrar dismissed the appeal. Mr. A. began to experience health problems in December 2009. As noted in the chart, he was diagnosed with obstructive sleep apnea and atrial fibrillation. These conditions caused him severe fatigue and forced him to reduce his workload.

[29] On August 5, 2010, Mr. A. filed an amended Notice of Motion to set aside the dismissal. The court heard the motion on August 27, 2011 and dismissed it. Mr. A. paid the costs ordered against the plaintiff.

[30] The plaintiff called Mr. A. a number of times for an update on the action. On April 7, 2011, Mr. A. served the claim on the defendant. On May 5, 2011, the defendant served its Notice of Intent to Defend. On October, 2011, the defendant brought a motion to strike certain parts of the claim, which was heard on December 21, 2011. In February 2012, Healey J. released her decision which allowed the claim to proceed except for two paragraphs. Mr. A. paid the costs ordered against the plaintiff. On March 15, 2012, the defendant served its Statement of Defence. The plaintiff states that there was nothing during this time period that suggests that she had abandoned the action.

The Third Period

[31] This period begins in March, 2012. The plaintiff acknowledges that the delay during this time is the most problematic. The defendant took no steps after this point. Even if it was not required to do so, it relates to prejudice. Ms. McNeill states that she never intended to abandon the action. She had health problems and trusted Mr. A. The record shows that Mr. A.’s law clerk made various notes documenting her attempts to contact him. Her phone records show that she made 75 calls to Mr. A.’s office up to the end of 2013. Records beyond that date are not available. This evidence is undisputed. She was not cross-examined. Mr. A.’s explanation is that he dropped the ball. There is no evidence that anything was Ms. McNeill’s fault.

[32] The medical evidence shows that while Mr. A. did improve in 2013, by August 2015 he was deteriorating. Efforts were made to have him see Dr. Mulder again; however, he had to wait for a year. Dr. Mulder noted in June 2016 that Mr. A. was still struggling. In the middle of 2016, Ms. McNeill picked up her file on Mr. A.’s suggestion and his retainer was terminated.

[33] There is unchallenged evidence that Mr. A. was suffering. He made some improvements but on the whole, in about 2012, his depression coincided with the time when he should have been pushing the matter forward. He was putting out fires rather than staying on top of his work. He should have slowed down his practice or taken a leave. Ms. McNeill and other clients suffered. She did not know that he was experiencing mental health issues. While he was not totally disabled and unable to practice, there is a demonstrated link between his health problems and his inability to move this and other matters forward.

Explanation for the Delay

[34] The plaintiff states that an adequate explanation has been provided for the delay. As noted above, the plaintiff states that the delay began after September 30, 2009, when McIsaac J. granted the motion to file the claim. She relies on Cornell in which examinations were held in 2011, the action was administratively dismissed on June 1, 2012; however, the lawyer did not tell the client about it. He was suffering from some significant mental health issues relating to a death in the family. The dismissal was reported to LawPro in February 2017. Nine months later, counsel for LawPro served a motion to set aside the dismissal. The court found that a link had been established between plaintiff’s former counsel’s health and medical problems and his inability to move the matter forward. In para 80, the court stated, “There is evidence that the plaintiff always intended to proceed with the case, and the plaintiff’s reliance on [her counsel] Watson’s advice coupled with Watson’s extensive health and medical issues provides a reasonable, acceptable and satisfactory explanation for the delay.”

[35] Mr. A.’s serious health issues caused the delay. This is an adequate explanation.

[36] The plaintiff notes that the defendant states that Ms. McNeill knew or ought to have known that Mr. A. was the source of the delay. She tolerated it until it became a tacit assent. This ignores the reality of what the court stated in Madison. Ms. McNeill is not a lawyer. She is not over an overly sophisticated client. She hired Mr. A. do the job. There is no evidence that she knew of Mr. A.’s mental health issues.

[37] Ms. McNeill states that she did not know that there was a 30-day time limit to file the claim after the Notice of Action was filed. She states she contacted Mr. A.’s office many times. There is no evidence that she knew it would be dismissed for delay. Again, her evidence was not challenged by cross-examination.

[38] The plaintiff notes that the defence states Mr. A. earned a substantial income between 2013 and 2017. He attended to other proceedings; therefore, he could have attended to this one. There are 20 reported decisions during this time in which Mr. A. was counsel. The defence suggests that the court should draw an inference that he could have moved this matter along. There is no explanation for his failure to do so[^1].

[39] The plaintiff states that there is an explanation. Mr. A. told his doctor that he was just putting out fires. There is no suggestion that he made a deliberate decision to abandon the plaintiff’s file or that he avoided working on it.

Inadvertence

[40] The plaintiff acknowledges that she has to provide satisfactory evidence of inadvertence from May 2016, when she took her file from Mr. A., up to May 2017 when the action was dismissed. She states that after she took the file from Mr. A., she was in shock about having to fire her lawyer after so many years. She was coping with her own health problems. She was trying to look after her mother. She had tried to wean herself off pain medications. She did not know that the matter could be dismissed. The plaintiff states that she had 45 medical appointments between July 25, 2016 and May 10, 2017 (4.5 per month). She provided a list with dates. There is no evidence to suggest that the plaintiff intended to allow the matter to be dismissed for delay.

Motion Brought Promptly

[41] On May 3, 2017, the action was dismissed. The plaintiff received the order on May 12, 2017. She retained new counsel, Ms. Kolyn. Mr. Iny was retained by LawPro on September 18, 2017 to carry out an investigation. He had to obtain some documents from Mr. A. That took some time, given his circumstances. In April 2018, he was retained to bring this motion. The plaintiff notes that in Cornell, an investigation proceeded for nine months before the motion was brought. Here, the motion was brought after eight months. In Viola, the court stated that, while far from desirable, the 11-month delay between the dismissal date and the motion date was not egregious.

Prejudice

[42] According to MDM, the court must balance the prejudice to both parties. Finality is a relevant principle. The plaintiff states that this matter is not yet at the point of requiring finality. Up to 2012, neither of the parties’ lawyers moved the action forward. The plaintiff acknowledges that she bears more of the responsibility to move the action forward in contrast to the defendant; however, in Prescott, the court stated that the defendant’s inactivity is relevant in the contextual analysis. In Fuller, at para 42, quoting Aguas at para 19, the Court of Appeal stated that in the contextual analysis, a respondent’s failure to display any sense of urgency undercuts its claim of actual prejudice.

[43] In Hubergroup, the plaintiff brought a motion to restore the action. The action had not progressed past affidavits of documents. In para 53, the court stated that delay in and of itself does not amount to prejudice. Something more is required. The fact that the defendants did nothing for three years and complained of the delay is illogical.

[44] The plaintiff states that the defendant sat in the bush from 2012 onward. It did not take a single step. It bore some obligation to move the matter forward. The defendant states that there is no guarantee that records are still available. Memories fade. This is inconsistent with a letter the defence wrote in June 2006 to the plaintiff’s first counsel in which it stated that it had reviewed the allegations at length. It referred to emails that were available and an exhaustive investigation that had been carried out. The defendant did not make a demand for particulars before serving its defence.

[45] The plaintiff points out that the defendant states only that certain individuals with knowledge have left the company. It does not state who they are, when they left, whether they are material witnesses or whether they can be contacted. This is simply a bald allegation. No specifics have been provided. The defendant has not stated which material witness is no longer able to testify. In fact, to defend this motion, the defendant relies on an affidavit sworn in 2009. This is not sufficiently compelling to defeat all of the plaintiff’s claims. There is no evidence as to what is happened in the last 10 years because the defendant has not sworn a new affidavit.

[46] In Draskovic, at para 51, the court stated that the defendant has responsibility for locating witnesses during the currency of the action to preserve evidence. There was no evidence as to what the defendant had done since 2012 to preserve the evidence and make sure that witnesses were available for trial.

[47] According to the defendant, there is no evidence that the plaintiff’s tax records are available. Tax documents are referred to in the draft, unsworn affidavit of documents. The court can infer that they are still available.

[48] There are competing tensions on these types of motions. It is preferable that an action be decided on its merits in contrast to resolving an action in a timely fashion. In Fuller para 27, the court gave the plaintiff the benefit of the doubt. One final opportunity should be provided, especially where the delay is due to the lawyer’s inadvertence. The most just result would be to permit the plaintiff one last chance to move that forward on a strict timetable. If the plaintiff breaches, the defendant can move to dismiss.

THE DEFENDANT’S POSITION

[49] Mr. A.’s office sent an email to the plaintiff, dated March 23, 2012, asking her to provide her tax documents. The defendant states that the unsworn affidavit of documents has no evidentiary value. It means nothing. The plaintiff did not cross-examine on the defendant’s affidavit. That evidence is unchallenged.

[50] Prejudice cannot be the overriding factor because there is a four-part test. The plaintiff’s previous counsel sent a demand letter, dated May 2, 2006, that sets out the allegations. This matter concerns events that occurred in 2004. It shows that this is not a documentary dispute. It concerns an oral misrepresentation and reprisals.

[51] The defendant’s first response to the allegations is a letter dated June 5, 2006. The defendant provided a five-page substantial response and requested more information. On page two at the top, the defendant stated, “It is obvious from the emails provided to me that both Andrew and Linda had provided extensive support to Ms. McNeill since 2004.” At the bottom of that page, the defendant stated, “It would be helpful if you could provide names of the people who treated her negatively” and “details of the work conditions to which the plaintiff referred.” The plaintiff did not send more details. There was no substantial response to the letter. The defendant invited the lawyers to meet to discuss the details. There is no evidence that the meeting happened.

[52] With respect to its reliance on the 2009 affidavit, the defendant states that the plaintiff knew the defendant’s position regarding prejudice at that time. Those issues have not been addressed. The defendant has not been sitting in the weeds. The 2009 affidavit was delivered in the context of McIsaac J.’s decision. Although the plaintiff states that McIsaac J. dealt with the issue of delay up to that point, in paragraph five, the court stated that the plaintiff had satisfied the court that prejudice could be addressed by way of examinations. Examinations have not been conducted. None of this has been addressed since 2009.

[53] After McIsaac J.’s decision, the defendant was actively involved. It brought a motion to strike parts of the revised Statement of Claim which was successful. Healey J. struck some parts of it. The defendant was attempting to ensure that the action was not unduly prolonged. The defendant delivered its Statement of Defence within one month of the plaintiff’s request. It asked for an affidavit of documents. This does not constitute sitting in the weeds. There is no evidence that a further letter from the defendant would have accomplished anything. If Ms. McNeill’s follow-ups and letters were not prompting any action, the defendant’s following up would have had the same effect.

[54] The defendant states that the plaintiff’s case turns on Mr. A. The plaintiff states that Ms. McNeill should not be blamed. This assertion does not satisfy the Reid test. Mr. A. stated in his affidavit, sworn August 3, 2010, in paras 18 and 19, that he was unable to proceed with the claim in the most expedient manner. He had two other matters set for trial. He was not saying simply that he could not do it. On October 27, 2010, Mr. A.’s clerk sent him an email stating that she had told Ms. McNeill that Ms. T. was working on the claim. Mr. A. sent a letter to Ms. McNeill, dated February 17, 2012, regarding the further appeal which comments on the already delayed matter. The defendant states that Mr. A.’s medical evidence was already gathered for the Law Society of Upper Canada Tribunal hearing. Its May 2018 decision refers to his personal income for 2014 to 2017 which ranged from $100,000-$200,000. Mr. A. stated that he was struggling to keep up but did not provide any quantification. He did not say that he could only carry on with five files or whether he could not provide services to an appropriate level. The decision states that Mr. A. testified that he had a very severe episode in the fall of 2015 when his mental health worsened; however, he appeared before the Court of Appeal twice.

[55] This action concerns events that took place in 2004 and 2005. Oral evidence will be required. A trial regarding these events cannot proceed in 2019 or 2020. In 2006, the delay issue was already raised. McIssac J. stated that prejudice could be addressed by proceeding with examinations for discovery.

[56] On May 4, 2011, the defendant served its Notice of Intent to Defend. On May 5, 2013, the action was subject to administrative dismissal. On March 15, 2012, the Statement of Defence was filed. The action was then subject to administrative dismissal in April 2014. On May 27, 2017, the action was administratively dismissed. The court should not ask the defendant to defend this action in what will be a contest of witnesses’ memories regarding events that occurred in 14 or 15 years ago.

Inadvertence

[57] In Prescott, at para 14, the court stated that the plaintiff has to show that it always intended to prosecute the action within the time set out in the Rules but failed to do so through inadvertence. There is no evidence that the plaintiff tried to bring this action to trial within the timelines. In para 41, the court addresses the question of what is actual inadvertence. Prescott is about an inadequate tickler system. In this matter, there is no evidence that Mr. A. had an inadequate system or that Ms. McNeill intended to push the action forward.

[58] While a member of the public should be able to rely on a lawyer, there comes a point when there have been so many red flags that plaintiff knows there is a problem. She cannot keep saying that she relied on Mr. A. He made two mistakes. First, he did not serve and file the claim on time. Second, he failed to perfect the appeal. At this point, the plaintiff should have known that she could not rely on him. Her saying that she continued to rely on him after this point is unreasonable. The timelines and the rules must be followed. In Marché, at para 27, the Court of Appeal stated that given the length of the delay, the failure to move the case along could not be mere inadvertence. The court cannot excuse this kind of conduct by a lawyer. To do so would throw into question the willingness of the courts to live up to their stated goal of timely justice.

Reasonable Explanation for Delay

[59] In para 12(1) of Marché, the court set out a description of the first factor. A plaintiff must explain the delay from the commencement of the action until the deadline for setting the matter down for trial. Here, the plaintiff relies almost entirely on Mr. A.’s health problems. He became ill in 2009. The plaintiff took the file from him in 2016. There was delay even before Mr. A.’s health became an issue. There was delay after 2016.

[60] A plaintiff must show more than an intention to proceed. According to Madison, at para 28, a plaintiff must show that she did not assent to the delay. The only time this action was before the court was to deal with Mr. A.’s delay. The theme up to March 2012 was delay and missed timelines. The plaintiff did assent to undue delay. In Mr. A.’s affidavit sworn in 2009[^2], he states that he cannot deal with the matter.

[61] A plaintiff has to assume that the action was proceeding without undue delay. The evidence does not support an assumption that the events were reasonable in the circumstances or that she was making appropriate inquiries of Mr. A. She knew that the action was delayed. There is evidence of her inquiries up to 2013 and then in 2016. There are no emails from 2014. In 2015 she was not inquiring about the case. There is no evidence that she was making inquiries every year. Mr. A. had an associate, Ms. T. There were two lawyers working on the file. There is no evidence as to why Ms. T. could not have continued to work on the file. The onus is on the plaintiff to answer these questions.

[62] After the Court of Appeal decision, the plaintiff lost two causes of action in her claim. Her strategy should have changed or she should have explained why it did not change. Mr. A. has 20 reported decisions in this period which is a considerable number for a lawyer with a reduced workload. Some of the cases were about delay; however, others were not. Some were decided on their merits. The court can find that Mr. A. was having trouble because of his mental health issues or that he was preferring some files over others. The onus is on the plaintiff to prove this on a balance of probabilities.

[63] Mr. A.’s medical records show that in October 2012, he told Dr. Mulder that could attend to things that he was interested in without any difficulty. By the end of November, he reported that he was feeling better equipped to manage trials. In March 2013, Mr. A. stated that he was doing reasonably well despite the loss of his father. At the end of April 2013, Dr. Mulder commented that Mr. A. was generally positive. He was still struggling with procrastination, but this was more of a “characterological avoidant” problem.

[64] Approximately one month before Ms. McNeill took her file, Mr. A. had the insight to call her and tell her to take the file. The plaintiff has not demonstrated that Mr. A.’s health prevented him from attending to her action. Mr. A. should have taken action. In his 2009 affidavit, there is no reasonable explanation for his taking six years to contact Ms. McNeill and to tell her to pick up the file.

[65] From July 2016 to May 2017, Ms. McNeill had the file but took no steps. While she had a number of appointments, the extent to which they affected her is not clear. She was not cross-examined on this issue because she did not include any details in her affidavit.

[66] In 2017, when Ms. McNeill received the dismissal order, she retained new counsel in two weeks. There is no explanation for why she did not act quickly in July 2016 when she obtained the file from Mr. A. An explanation should have been provided for this. But for Mr. A.’s calling her, she would have continued with him. This constitutes tacit assent to the pace of litigation.

Promptness

[67] The defendant states that this motion was not brought promptly. It was brought more than a year after the dismissal. The test is “promptly”, not reasonably. Ms. McNeill instructed her new counsel to bring a motion immediately; however, LawPro became involved. Aside from obtaining records from Mr. A., there is no explanation as to why the investigation took so long. A Notice of Motion could have been served promptly and then a request for medical records could have been made. A timeline could have been set out for the exchange of evidence. None of this is before the court. In Cornell, at para 26, the court had evidence of the reason for the delay. On this motion, the plaintiff has an obligation to explain why one year passed before the motion was brought. The only evidence before the court is that the LawPro lawyer was retained to investigate in September, 2017. He was retained to bring the motion in April, 2018, seven months later. The Notice of Motion was delivered in May 2018.

Prejudice

[68] The defendant states that the plaintiff must demonstrate that the defendant will not be prejudiced at trial because of the delay. The plaintiff has not done this. The nature of the claim relates to events that occurred and misrepresentations. This is not a documentary case. It will be about the witnesses that can best recall what happened. Hubergroup was a document-based case concerning a fraudulent conveyance without consideration to avoid creditors. Affidavits of documents had been exchanged. Cornell was a breach of contract case in part. It had already been set down for trial. The issue was an amendment of pleadings.

[69] In para 25 of Deverett, the court addressed prejudice. Documents were available but there were issues with viva voce evidence. The plaintiff had identified two witnesses that it proposed to call. Both were available; however, the plaintiff’s affidavit did not contain any will-say statements for the two witnesses. The court found that regarding the possibility of unavailable of viva voce evidence, the plaintiff’s evidence was incomplete. The court stated, “Without knowing what oral testimony the plaintiffs’ witnesses would be expected to provide, the defendant was not in a position to know or to address the identity of witnesses it would need to call and whether they would be unavailable.”

[70] Nadarajah concerned a motor vehicle accident that happened in March 2009. The action was dismissed in October 2011. A number of missteps then occurred. The motion was heard in December, 2014, over three years after the dismissal order. The court noted that there was no evidence of the total number of documents that would need to be gathered. No discoveries had been held. The motion to set aside the Registrar’s order was dismissed. In Faklan, there was no evidence to establish absence of prejudice other than a bald assertion. This was not sufficient. In the case at bar, there is also no evidence of absence of prejudice. The plaintiff has made just a bald assertion with no evidentiary foundation.

[71] The defendant states that while the plaintiff has been poorly served by Mr. A., Rule 48.14 exists to keep plaintiffs accountable. This action has been alive for 10 years but not one bit of evidence has been provided to the defendant about the claim. McIsaac J. stated that he had concerns about prejudice but that it could be addressed by examinations. This was in 2009. As noted above, no examinations were held. The prejudice pre-dates 2009.

[72] The defendant states that at some point, there should be finality. The rule should have teeth. This motion has been brought 15 years after the events occurred on which the plaintiff’s claim is based. The prejudice to the defendant has not been rebutted.

ANALYSIS

Has the plaintiff provided an adequate explanation for the delay?

[73] Mr. A.’s medical records begin in 2009. He received treatment for sleep apnea which caused him to be exhausted. In the following year, he began to suffer from significant mental illness. At times, it improved. At other times, it worsened. It was still a factor in 2016 when Mr. A. called the plaintiff and asked her to pick up her file. Given the medical evidence filed, I find that Mr. A.’s poor health is a reason for his delay in proceeding with the action.

[74] I disagree with the plaintiff’s position that the period from when the Notice of Action was issued, August 27, 2007, to September 30, 2009 (McIsaac J.’s decision) is not relevant. I agree with the defendant’s position that a number of events occurred in the litigation that should have been red flags for Ms. McNeill. In August 2007, the Statement of Claim was not filed in time. A motion had to be brought. McIsaac J. determined that two elements of the claim could not proceed. Mr. A. filed a Notice of Appeal but did not perfect it. It was administratively dismissed. Mr. A. filed an Amended Notice of Motion to set aside this dismissal. In August 2010, the motion was dismissed. These events took up two years. The claim was then served. Six months later, the defendant brought a motion to strike parts of it and was successful. Then, after March 2012, when the defendant served the Statement of Defence, nothing happened on the file. Four years later, Mr. A. asked Ms. McNeill to pick up the file.

[75] A client is entitled to rely on her lawyer to conduct an action but, according to Madison, the client must show that she reasonably assumed that the action was proceeding. Although there is evidence that Ms. McNeill contacted Mr. A. or his office numerous times to inquire about its status, she was never told that any procedural step had been taken. In her affidavit, Ms. McNeill states that when she called Mr. A.’s office, she routinely spoke to the clerk who would provide an update to explain Mr. A.’s unavailability and arrange a meeting for a future date. Routinely, these meetings would be cancelled or postponed. I find that while she did not make a deliberate decision to halt the advance of the litigation, if she believed that the action was being advanced, it was not a reasonable belief. From McIsaac J.’s endorsement, she knew that examinations for discovery were the next step. She knew that they had not been arranged. A client is not justified in relying on a lawyer who does nothing for years. Simply stating that she relied on her lawyer for all of this time when she knew that nothing was happening is not an adequate explanation for the delay, nor does it show that she reasonably assumed that the action was progressing.

[76] Ms. McNeill certainly knew that the action had not progressed when she picked up her file in July 2016. She did not retain new counsel until late May, 2017, 10 months later, only after she received notification that the action had been dismissed. While I accept her evidence that she had a number of medical appointments during this time, scheduling an appointment with a new lawyer was also important. Given all of this, I am not satisfied that Ms. McNeill has provided an adequate explanation for this delay.

Was the deadline missed due to inadvertence?

[77] Inadvertence is the result of inattention or an oversight. The plaintiff states that she has to provide an explanation for inadvertence from May 2016 to May 2017 when the action was dismissed. She relies on her poor health and 45 medical appointments as the explanation. I do not agree that the timeframe for which the explanation must be provided is that narrow. This is not a situation in which someone failed to diarize a matter appropriately nor is it a situation in which a lawyer had carriage of a file, then left the firm and the file was not properly tracked. The plaintiff’s evidence focuses on Mr. A.’s illness. Nevertheless, he was advancing some of his files and attending court. There is no evidence that Mr. A. was inattentive or failed to advance the action because of an oversight. This is not a case of inadvertence.

Was the motion brought promptly?

[78] As noted above, the action was administratively dismissed in May 2017. After Mr. A. reported the matter[^3], LawPro retained Mr. Iny in September, 2017 to investigate. Seven months later, in April 2018, he received instructions to bring this motion. The Notice of Motion was served in May 2018. The total delay in bringing the motion was one year.

[79] The plaintiff relies on Cornell, in which the court held that after a nine-month LawPro investigation, the motion was brought promptly. In Viola, the Divisional Court held that an 11-month delay in bringing the motion, while far from desirable, was not egregious. I find that the plaintiff brought this motion within an acceptable time frame.

Will there be prejudice to the defendant if the action is permitted to continue?

[80] The evidence in the record before me shows that in the June 5, 2006 letter, the defendant made a request for particulars. It wanted details of the plaintiff’s specific allegations of negative treatment from her superiors and co-workers after disclosing malfeasance and corruption that was being carried out by Sun Life. The plaintiff did not respond.

[81] In his order dated September 30, 2009, five years after the alleged events occurred, McIsaac J. found that prejudice existed. That prejudice has never been addressed because examinations for discovery have never been held. Instead, the prejudice continued.

[82] According to Faklan, a plaintiff’s bald assertion that the defendant will not be prejudiced if the action is permitted to continue is inadequate. In his affidavit, Mr. A. states only that he is unaware of any prejudice. According to Deverett, a plaintiff’s affidavit on this type of motion should set out will-say statements for the plaintiff’s witnesses. Here, the plaintiff’s affidavits (including the affidavits of Mr. A. and Ms. McNeill) do not include any such statements. I accept the defendant’s position that this is equivalent to a bald statement. Without this information, the defendant cannot know what oral testimony the plaintiff’s witnesses would be expected to provide, nor is it in a position to know or address the identity of witnesses that it would need to call. It has lost the opportunity to obtain timely information from them. In Nadarajah, the court stated that if examinations are not held, memories fade. Without this information, the defendant cannot determine whether witnesses would be available to testify about events occurred in 2004 and 2005.

[83] I find that the plaintiff has not met her burden to show why the defendant will not be prejudiced. In contrast, the defendant has provided adequate evidence of how it will be prejudiced. I find that the defendant will be significantly prejudiced if this action, based on events that occurred 14 and 15 years ago, is permitted to proceed.

CONCLUSION

[84] After considering the contextual analysis, in balancing the interests of the parties, I find that the action cannot be permitted to proceed. The plaintiff’s motion is dismissed.

COSTS

[85] At the conclusion of the motion, counsel advised me that they would be able to agree on costs and that an order was not required. Accordingly, there is no order regarding costs.

Madam Justice M.E. Vallee

Released: July 18, 2019

[^1]: The parties provided an Agreed Statement of Fact. It sets out these 20 decisions. In Kennedy, the action was dismissed for being out of time. In Daost, Mr. A. did not file costs submissions so the court awarded costs to the other side. In Francis, an action was commenced in 2000. Mr. A. was the fifth lawyer retained in 2012. The defendant brought a motion to dismiss in 2016 which was its sixth motion for delay. The court dismissed the defendant’s motion without prejudice. The plaintiff was given one final opportunity on a longer delay. In Haeusler, Mr. A. failed to file costs submissions. In Cook, Mr. A. was retained in 2008. He served a Notice of Action in 2010 but did not commence an action until the limitation period was about to expire. The defendant took the position that the proper venue was Alberta. By then, it was too late for the plaintiff to bring the action in Alberta.

[^2]: This affidavit was not before the court on this motion.

[^3]: There is no evidence of the date when he reported it.