Court File and Parties
COURT FILE NO.: 13-58154 DATE: 2019-01-17 COURT OF ONTARIO SUPERIOR COURT OF JUSTICE
RE: MICHAEL ERLAND, Plaintiff AND: HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, CITY OF OTTAWA, R.W. TOMLINSON LTD., RIDEAU VALLEY CONSERVATION AUTHORITY, Defendants
BEFORE: Mr. Justice Calum MacLeod
COUNSEL: Joseph W.L. Griffiths, for the Plaintiff Trevor J. Buckley, for the Defendant R.W. Tomlinson
HEARD: October 29th, 2018
REASONS FOR JUDGMENT
[1] The plaintiff brings a motion to extend the time under Rule 48.14 in order to prevent the automatic dismissal of this action by the Registrar. The motion was not opposed by the Crown, the City or the Conservation Authority but it is opposed by the defendant Tomlinson.
[2] Pursuant to Rule 48.14 (5) (6) and (7) a motion such as this proceeds as a "status hearing" and the plaintiff is required to show cause why the action should not be dismissed for delay. In brief, the question at a status hearing is whether or not the plaintiff has lost the right to proceed with a determination on the merits due to procedural delay. The test established by the jurisprudence requires a reasonable explanation for the delay and proof that the extension of time will not prejudice the defendants.[^1]
[3] For the reasons that follow, I am not persuaded I should exercise my discretion to extend the time. The action will be dismissed.
Background
[4] The plaintiff purchased woodland property in May of 2002 and since that time the property has been subject to regular flooding. In fact it was designated as provincially significant wetland in 2005. The plaintiff believes that the flooding is artificial resulting from a combination of quarry dewatering by the defendant Tomlinson and the failure by other defendants to maintain a creek. Tomlinson received a drainage permit from the Province in 2002. The Upper Flowing Creek into which the water is pumped has been disrupted and impeded in various ways which the plaintiff contends has caused it to repeatedly burst its banks. He alleges that when he purchased the property it contained a healthy wooded area but now contains a drowned forest. He argues that the rezoning of the property to wetland and the designation as provincially significant has ruined the development potential of his property and significantly diminished its value. He blames Tomlinson and the various government authorities and this is the subject matter of the litigation.
[5] An action such as this is difficult and technical and it involves intertwined jurisdictional and causation issues. The plaintiff seeks to hold Tomlinson liable for pumping quarry water in accordance with its permits. He seeks to hold the Province, City and Conservation Authority who are public authorities liable for acting or failing to act in accordance with their statutory mandates. In addition, although the property was purchased in 2002 and rezoned in 2005 and although flooding has been a regular occurrence during those years, the action was not commenced until July of 2013. Unsurprisingly, this has given rise to a limitation defence and to questions about discoverability.
[6] Over the past four years, the action has been case managed and there have been various case conference orders as well as a number of motions. In fact there is currently a stalled summary judgment motion relating to the limitation defence. The latter has been stalled largely by disputes over the scope of cross examination and failure to abide by production orders. In reasons released on January 19th, 2018, although I found that the plaintiff was in breach of the production order, I declined to hold him in contempt and I declined to dismiss the action. I provided the plaintiff with a "last chance to comply" and ordered him to pay costs.[^2] I understand he has complied with that order.
[7] The 2018 order was specifically made without prejudice to the jurisdiction of the Registrar to dismiss the action for delay under Rule 48 or of the defendant to bring a motion under Rule 24 to dismiss the action for delay. In other words, the court did not address the question of delay and the decision not to dismiss the action for non-compliance with a timetable was not to be taken as an extension of time.[^3]
Rule 48.14
[8] As it currently reads, Rule 48.14 requires the Registrar to dismiss a civil action that has not been set down for trial or concluded in some other manner on the 5th anniversary of the commencement of the action. Assuming the plaintiff is not in a position to set the matter down for trial prior to the deadline, there are two methods to avoid dismissal. The parties may agree on a timetable to bring the matter to conclusion and file it 30 days in advance pursuant to Rule 48.14 (4). Alternatively a party may bring a motion under Rule 48.14 (5) and (6) in which case the motion proceeds as a status hearing. That is what has occurred in the case at bar.
[9] In a status hearing, there is a reverse onus. The plaintiff must show cause why the action should not be dismissed for delay.[^4] Much has been written about the status hearing rule and the competing policy imperatives of access to justice, deciding cases on the merits and discouraging delay.[^5] I need not repeat that analysis here. Societal interest in timely and efficient justice at a certain point outweighs the importance of adjudication on the merits. As the jurisprudence makes clear, when a status hearing is invoked, the action should be dismissed unless the plaintiff can demonstrate a reasonable explanation for the delay on the one hand and an absence of prejudice to the defendant on the other.[^6]
[10] I need not go into the long and complex history of the rule and its predecessors[^7]. The current Rule 48.14 was enacted in 2014. It replaced the previous regime of "status notice" and dismissal at the end of two years with an automatic dismissal after five years. It is fair to say this change was enacted to reduce the burden on the court and on courts administration and does not reflect a policy that civil cases should now be allowed to languish.[^8] It is evident that the explanation a plaintiff will have to give to explain delay after five years may have to be more robust than might have been the case with an action aged only two years. The test however remains the same. It begins with the reasons for delay.
[11] In seeking to explain the delay, the plaintiff should address what impediment prevent him from setting the action down for trial. This is a unilateral step that may be taken at any time when the plaintiff believes he is ready for trial and has no further need of discovery. The plaintiff should then outline a proposed timetable and demonstrate that the additional time is reasonable and will not create non compensable prejudice.
[12] In this case discoveries and mediation have not been completed. The plaintiff seeks a further two years. He proposes to complete discoveries and mediation by the end of January, 2020 and to set the action down for trial by July of 2020. Presumably that would result in a trial date in late 2021 or early 2022.
[13] The statement of claim in this matter was issued on July 4th, 2013. I am told that an earlier action was commenced in January of that year and then discontinued. I suspect that may be because the original action did not comply with the notice requirements under the Proceedings Against the Crown Act. [^9] In any event though certain defences were filed in December of 2013, following pleading amendments, a motion and a demand for particulars, pleadings were eventually closed in November of the following year. As discussed previously, given the dates on which the plaintiff purchased the property, the date on which the dewatering permit was granted and the date of the rezoning and designation, there is a limitations defence.
[14] The history of the action is detailed in the affidavit of Frank Kosturik filed in response to this motion and is substantiated by the court record as shown in the various case management orders and other endorsements. The affidavit of Alana Gray filed in support of the motion does not substantially disagree with the history although it is less detailed. Ms. Gray suggests that there was a period of inactivity between 2013 and 2015 caused by the illness of the original counsel for the plaintiff. Mr. Green may well have been ill but it is inaccurate that there was no activity during the period when he had carriage of the matter. Pleadings were exchanged and amended. There were at least three case conferences and at least one motion.
[15] In February of 2014 the plaintiff attempted to bring a motion noting certain of the defendants in default, to appoint a mediator and to schedule a motion for judgment. One of the reasons for the outstanding defence was an outstanding demand for particulars which the plaintiff had not answered. That motion was dismissed with costs. The parties subsequently agreed to request case management.
[16] As of October 6th, 2014 the action was case managed and a timetable was established. In February of 2015 the timetable was revised. Discoveries were to have been completed by the end of September, 2015. Although Affidavits of Documents were exchanged, those discoveries were not completed. Instead the plaintiff brought a motion to add additional plaintiffs and the defendants indicated they wished to bring a summary judgment motion. The plaintiff appointed new counsel in December of 2015.
[17] In February of 2016 the motions to amend and the summary judgment motion were adjourned because of disagreements over cross examinations. They were further adjourned at a case conference in September of 2016. One of the summary judgment motions relating to malicious prosecution was resolved. The pleadings motion has never proceeded as it is evident claims by other plaintiffs would be out of time.
[18] A refusals motion was argued on October 13th, 2016. The key refusal concerned an appeal the plaintiff may have initiated over the rezoning and which was relevant to the limitations defence. There is evidence that the plaintiff was aware the flooding was due to human activity no later than 2009. The plaintiff was ordered to make further disclosure relevant to the question of discoverability.
[19] Failure by the plaintiff to comply with the order of October 13th, 2016 was the subject of a motion heard on December 19th, 2017.[^10] In that ruling, I declined to dismiss the action for wilful breach of a court order but I did find that the plaintiff had been indifferent and careless in responding to the order, I found reason to believe his response had been disingenuous, I gave him one more opportunity to fulfill his obligations and I specifically made the ruling without prejudice to a motion to dismiss the action for delay. In other words, because it was not argued on that basis, I did not consider the question of whether or not the delay in bringing the action to conclusion was justified. The time to consider that is now.
[20] The 5th anniversary of initiating this action was July 4th, 2018. On June 25th, 2018 unable to obtain Tomlinson's consent to a proposed timetable, the plaintiff launched this motion to extend the time. The motion would have been necessary in any event because the timetable was not circulated soon enough. The rule requires that a consent timetable be filed at least 30 days prior to the deadline.
[21] The motion to extend the time under Rule 48.14 was initially brought as an opposed "basket motion" (in writing) and for some reason wound up before Justice Corthorn who in turn adjourned it to an oral hearing before me without prejudice to the plaintiff's position. The motion came on for hearing on October 29th, 2018. I reserved to give written reasons.
Analysis
[22] As noted above, the first question is whether or not the plaintiff has adequately explained the delay in bringing the matter to conclusion. As observed at the outset, it is true that this proceeding is complicated because it involves difficult questions of fact and law. Liability and causation are both hotly contested.
[23] The affidavit sworn in support of the motion is the affidavit of a paralegal in Mr. Griffith's office and not the affidavit of the plaintiff himself. While the affidavit accurately sets out some of the critical dates in the litigation, the only paragraphs directly addressing reasons for delay are paragraphs 11, 12, 24, 30 and 32.
[24] In paragraph 11 it is suggested that "while it is regrettable that this matter did not proceed further between 2013 and 2015, it is also common knowledge that the Plaintiff's original lawyer ... was suffering from medical issues". In paragraph 12 the affidavit states that "at the time Mr. Griffiths took over carriage of this file, more than 2 years had already passed." It goes on to state that "our office moved expeditiously to get this matter to cross-examinations ... or to move the litigation forward given that the Defendants had elected to bring various interlocutory motions rather than proceeding to discovery."
[25] In paragraph 24 it is suggested that the outstanding motions for summary judgment "prevented the plaintiff from setting the matter down for trial". In paragraph 32 it is suggested that "as a practical matter, the Plaintiff could not set this matter down for trial with the outstanding motions for summary judgment."
[26] In fairness the affidavit also contains information that counsel have had useful discussions to streamline the motions and have engaged in other constructive discussions. Finally in paragraph 30 it is asserted that the plaintiff has demonstrated "an ongoing intention to actively prosecute this litigation" and indicates that there have been continuous requests for documents and attempts to negotiate a timetable.
[27] The affidavit also demonstrates that the summary judgment motion itself has proceeded at a shockingly slow pace. Cross examinations on the affidavits were completed in February of 2016 but a refusals motion was not brought until October of 2016. On March 5th, 2018 Tomlinson advised it was not prepared to proceed on the motion for summary judgment because it wished to file a supplementary affidavit and conduct further cross examination.
[28] There is no rule that discoveries must be put on hold or that an action cannot be set down for trial because of a pending summary judgment motion. To the contrary, there are instances in which summary judgment before completion of discovery or production may be premature.[^11] Indeed, even on a distinct issue such as a limitation period, summary judgment may not always be appropriate.[^12] Unless it is done by agreement or order, it is unwise to effectively put an action on hold pending a potential summary judgment motion.
[29] The evidence does not persuade me that the plaintiff has made any reasonable effort to schedule discoveries or to accelerate the process. I do not regard the bald assertion that previous counsel was ill as an explanation when that counsel was bringing motions and appearing at case conferences. In any event, the plaintiff has been represented since December of 2015 by highly competent counsel who is well aware of the steps needed to bring an action to conclusion.
[30] There is no adequate explanation as to why it should take until January of 2020 to complete discoveries.
[31] In my view the plaintiff's affidavit evidence is insufficient to meet the statutory test. That being the case, the motion should be dismissed, the extension of time denied and the action should be dismissed for delay. I need not consider the question of prejudice because the plaintiff must meet both branches of the test. The prejudice of course, would be the prejudice involved in granting the extension and not the prejudice in facing the litigation itself.
Conclusion
[32] In conclusion, the motion to extend the time under Rule 48.14 is dismissed. The action will be dismissed for delay pursuant to Rule 48.14 (7) (a).
Costs
[33] I encourage the parties to agree on costs. In the event they are not able to do so then they may obtain further direction from my office within the next 30 days. If I do not hear from counsel within that time, there will be no order as to costs.
Date: January 17, 2019
Mr. Justice C. MacLeod
COURT FILE NO.: 13-58154 DATE: 2019-01-17
ONTARIO SUPERIOR COURT OF JUSTICE
RE: MICHAEL ERLAND, Plaintiff AND: HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, CITY OF OTTAWA, R.W. TOMLINSON LTD., RIDEAU VALLEY CONSERVATION AUTHORITY, Defendants
BEFORE: Mr. Justice Calum MacLeod
COUNSEL: Joseph W.L. Griffiths, for the Plaintiff (Responding Party) Trevor J. Buckley, for the Defendant R.W. Tomlinson (Moving Party)
REASONS FOR JUDGMENT
Mr. Justice Calum MacLeod
Released: January 17, 2019
[^1]: See Cascadia Fine Art Limited Partnership v. Gardiner Roberts LLP, 2014 ONSC 6602 (Div.Ct.) [^2]: See 2018 ONSC 485 [^3]: Supra, @ para. 31 [^4]: See Rule 48.14 (7). [^5]: See Orsi v. Fromstein, 2014 ONSC 2508 (SCJ), Fasken Martineau DuMoulin LLP v. Elliott, 2018 ONSC 3880 (Master), Key Anolouis Developments Limited v. 800246 Ontario Inc., 2018 ONSC 5895 (Master) [^6]: See Cascadia Fine Art Limited Partnership v. Gardiner Roberts LLP, 2014 ONSC 6602 (Div. Ct.) and authorities cited therein. [^7]: See Amirrahmani v. Wal-Mart Canada Inc., 2011 ONSC 6608 (Master) which reviews the history of the rule. [^8]: The burden resulted from generating numerous status notices, dismissal orders and motions to set aside dismissal orders. There were at least six decisions from the Court of Appeal dealing with the test for setting aside such orders. See for example K. Laboratories v. Highland Export Inc., 2010 ONSC 4032 (Master) [^9]: RSO 1990, c. P.27 as amended, see s. 7 [^10]: See reasons 2018 ONSC 485 [^11]: See The Bank of Nova Scotia v. 1736223 Ontario Limited, 2018 ONSC 4449 @ para. 40. [^12]: See Loy-English v. Fournier, 2018 ONSC 6212