Court File and Parties

COURT FILE NO.: CV-14-00498414

MOTION HEARD: 20190910

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Adam Sax and 2349336 Ontario Ltd. o/a The Condo Mall, Plaintiffs

AND:

Rick Aurora, 2349336 Ontario Ltd. o/a The Condo Mall, Royal LePage West Realty Group Ltd., Jessica Lenouvel (Leung), Jaswinder Aurora, and Pritina Bhavsar, Defendants

BEFORE: Master B. McAfee

COUNSEL: G. Ko, Counsel, for the Moving Party, the Plaintiff Adam Sax

G. Zvulony, Counsel, for the Responding Party, the Defendant Jessica Lenouvel (Leung)

HEARD: September 10, 2019

REASONS FOR DECISION

Nature of the Motion

[1] The plaintiff Adam Sax (the plaintiff) brings this motion for an order pursuant to Rule 37.14(2) of the Rules of Civil Procedure setting aside the order of the Registrar dismissing the action for delay dated May 14, 2019.

[2] The defendants Royal LePage West Realty Group Ltd, Rick Aurora and Jaswinder Aurora consent to the setting aside of the dismissal order. The defendant Jessica Lenouvel (Leung) (the responding defendant) opposes the setting aside of the dismissal order.

[3] At the outset of the motion, plaintiff’s counsel advised the court that he was agreeable to setting the action down for trial immediately.

[4] Following the conclusion of argument, I advised the parties of my order, with reasons to follow. I granted the motion and ordered that the Registrar’s dismissal order be set aside and that the action be set down for trial within 30 days (see my endorsement dated September 10, 2019). What follows are my reasons.

The Test

[5] The court will apply a contextual approach and consider all relevant factors in determining whether it is just to set aside the dismissal order in the circumstances of the particular case (see Prescott v Barbon, 2018 ONCA 504 at paras. 13-15, MDM Plastics Ltd. v. Vincor International Inc., 2015 ONCA 28 at paras. 11-12, Scaini v. Prochnicki, 2007 ONCA 63 at paras 21-25).

[6] In determining whether the order of the Registrar ought to be set aside, I am mindful of the tension between two principles of our civil justice system: the preference to have civil actions decided on their merits and the promotion of timely resolution of actions.

[7] In making this determination, I am also mindful of the importance of finality of litigation (Marché d’Alimentation Denis Thériault Ltée. v. Giant Tiger Stores Ltd., 2007 ONCA 695, at paras. 37-38).

[8] I am also mindful of the provisions of rule 1.04(1) of the Rules of Civil Procedure:

These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.

[9] Having regard to the above principles and the relevant factors, I am satisfied that it is in the interests of justice that I exercise my discretion to set aside the dismissal order.

[10] In support of the motion, the plaintiff relies on the affidavit of a law clerk. There is no affidavit from the plaintiff. While an affidavit from the plaintiff is certainly preferable, the lack of an affidavit from the plaintiff is not fatal in the particular circumstances of this case.

Explanation of the Litigation Delay

[11] I am satisfied that the litigation delay has been adequately explained.

[12] The action was commenced on February 13, 2014. Statements of defence were delivered in or about April 2014 to June 2014. Affidavits of documents were served in or about August 2014 to November 2014. Examinations for discovery took place in November 2014. Undertakings were answered from in or about December 2014 to February 2015. There is no evidence before me that any undertakings remain outstanding. On August 22, 2016, on consent, the plaintiff obtained leave to deliver a fresh as amended statement of claim. On December 19, 2016, a mediation was conducted.

[13] Although there is a period of inactivity following the answering of undertakings until the motion for leave to amend the statement of claim, overall the action progressed at a reasonable pace. In less than three years following the commencement of the action, pleadings and affidavits of documents were served, examinations for discovery and mediation took place and all undertakings were answered.

[14] Following the mediation, the plaintiff brought a motion for leave to amend the fresh as amended statement of claim. The motion was first returnable on May 15, 2017. The motion was heard on September 19, 2017, and the decision was released on October 23, 2017. Leave to amend was granted. Royal LePage appealed from the order of the motions court Judge. The plaintiff brought a motion to quash the appeal returnable March 6, 2018. For reasons released on March 19, 2018, the motion to quash was dismissed. The appeal to the Divisional Court was initially scheduled for January 7, 2019, and rescheduled to June 3, 2019. The decision of the Divisional Court was released on June 21, 2019.

[15] The delay following the mediation has been adequately explained. There was a motion for leave to amend, an appeal and a motion to quash the appeal during this time period.

Inadvertence in Missing the Deadline

[16] I am satisfied that the deadline was missed as a result of inadvertence.

[17] The affidavit of law clerk M. Lougheed states that the deadline was missed because the plaintiff was concentrating on resolving the appeal. In addition, the lawyer of record changed law firms in 2015, and the dismissal deadline was not properly diarized.

[18] There is no evidence of any deliberate intention not to advance the action nor is there evidence of a deliberate intention not to set the action down for trial.

[19] If I am wrong and the evidence before me is not sufficient to satisfy this relevant factor, I remain of the view that it is just to set aside the dismissal order in all of the circumstances of this case.

Motion Brought Promptly

[20] The responding defendant agrees that this factor has been satisfied.

No Prejudice

[21] I am satisfied that any presumption of prejudice has been rebutted. Affidavits of documents have been exchanged. Examinations for discovery have taken place. Undertakings have been answered.

[22] I am not satisfied of any actual prejudice that would result in a fair trial no longer being possible.

[23] To the extent that the responding defendant argues that memories of witnesses fade, if the responding defendant was concerned with fading memories, the responding defendant ought to have taken steps to preserve the evidence of those witnesses.

[24] In her affidavit, the responding defendant states that when she received the dismissal order she “… felt a tremendous amount of relief that this nightmare lawsuit had finally come to an end.”

[25] The dismissal order clearly states in bold: NOTE: An order under Rule 48.14 dismissing an action may be set aside under Rule 37.14. The action was dismissed for delay on May 14, 2019. Plaintiff’s counsel learned of the dismissal order on June 3, 2019. On June 4, 2019, plaintiff’s counsel advised of the intention to set aside the dismissal order and served a notice of motion for an order setting aside the dismissal order. The responding defendant’s impression that the action was finally at an end in all of these circumstances was not reasonable.

[26] The responding defendant also states that she began suffering from anxiety when she learned that the plaintiff wanted to move to set aside the dismissal order and that since then she has experienced significant anxiety as detailed in her affidavit. Unlike the circumstances in Canada Trust Company v. 2054509 Ontario Limited, 2016 ONSC 4341 (Ont. S.C.J.), there is no medical report in this regard. I am sympathetic to the responding defendant’s assertions in this regard and I have ordered a set down date within 30 days in an effort to address any further delay.

[27] This is not a case where a significant period of time elapsed between the dismissal order and the motion to set aside the dismissal order. The principle of finality should not prevail in all of the circumstances of this proceeding.

[28] For these reasons, on September 10, 2019, I ordered that the Registrar’s dismissal order be set aside and that the action be set down for trial within 30 days.

Costs

[29] With respect to the issue of costs, I agree with the responding defendant that there should be no costs of the motion. Although the plaintiff was successful on the motion, the plaintiff is being granted an indulgence. The plaintiff did not achieve a result as favourable or more favourable than the plaintiff’s offers to settle. There shall be no costs of the motion payable to any party.

Master B. McAfee

Date: September 12, 2019