COURT FILE NO.: CV-09-386369 (Toronto)

MOTION HEARD: 2019 09 19

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Hilda Toscano

v.

Oscar L. Anselmo and The Toronto Transit Commission

BEFORE: MASTER R. A. MUIR

COUNSEL: C. Michael J. Kealy, agent for the lawyer for the plaintiff

John Rosolak for the defendants

REASONS FOR DECISION

[1] The plaintiff brings this motion pursuant to Rule 48.11(b) of the Rules of Civil Procedure, RRO 1990, Reg. 194. She seeks an order restoring this action to the trial list. The plaintiff also requests an order establishing a timetable for the future conduct of this action. The defendants are opposed and submit that the plaintiff’s action should be dismissed.

[2] The applicable test on this motion is well established. The onus is on the plaintiff to provide an acceptable explanation for the litigation delay and to show an absence of non-compensable prejudice to the defendants if the action were to proceed to trial. See Nissar v. Toronto Transit Commission, 2013 ONCA 361 at paragraph 31 and Carioca’s Import & Export Inc. v. Canadian Pacific Railway Limited, 2015 ONCA 592 at paragraph 3. This conjunctive test was recently confirmed by the Court of Appeal in D’Souza v. Brunel International Inc. (c.o.b. ITECC Consulting), 2019 ONCA 339 at paragraph 5.

[3] The plaintiff’s position is that she has met both elements of test. The plaintiff submitted that the only relevant period of delay was up to the date that this action was struck from the trial list. Any delay in bringing this motion was not a relevant consideration. In any event, the plaintiff argued that any delay has been adequately explained and there will be no prejudice to the defendants if this action proceeds to trial.

[4] The defendants conceded that any delay up to the delivery of the trial certification form has been excused. However, the defendants submitted that no acceptable explanation has been provided for the nearly two-year delay between the date this action was struck from the trial list to the date this motion was first brought. The defendants also argued that they will be prejudiced if the action is restored.

[5] For the reasons that follow, it is my view that the plaintiff has established an acceptable explanation for any delay and that the defendants will not suffer any non-compensable prejudice if the action is allowed to continue. This action should be restored to the trial list.

BACKGROUND

[6] This claim arises from an incident on a Toronto Transit Commission bus operated by the defendant Oscar L. Anselmo. The plaintiff was a passenger on the bus on September 11, 2007. The plaintiff alleges that she was injured when the bus came to a sudden stop. The plaintiff alleges that she suffered serious and permanent injuries. She claims significant damages for pain and suffering along with damages for out of pocket expenses and loss of income. The defendants have denied the plaintiff’s allegations.

[7] The plaintiff started this action on September 3, 2009. In the several years that followed, significant steps were taken to advance this litigation. Productions were exchanged, discoveries and mediation took place and the plaintiff attended a defence medical examination. Although this action was administratively dismissed by the registrar on two prior occasions, those dismissal orders were set aside on an unopposed basis. As stated above, the defendants acknowledged that any delay prior to setting this action down for trial has been excused by the defendants.

[8] This action was set down for trial on March 31, 2015. The trial coordinator sent a certification form to the plaintiff’s lawyer in July 2015. The certification form required the parties to confer and confirm a trial date by May 27, 2016, failing which the action would be struck from the trial list.

[9] The plaintiff forwarded the certification form to the defendants’ lawyer in December 2015. Unfortunately, it appears that the defendants did not respond to this communication from the plaintiff’s lawyer and a completed certification form was not returned to the trial coordinator. This action was then struck from the trial list on May 27, 2016.

[10] It appears that the plaintiff’s lawyer was under the mistaken impression that the certification form had been filed with the trial coordinator’s office and was waiting for the court to confirm trial dates. This was not correct and in November 2016, the plaintiff’s lawyer learned that this action had been struck from the trial list.

[11] No immediate motion was brought to restore this action to the trial list. Instead, it was determined that the plaintiff would retain new counsel from a plaintiff side personal injury firm. In April 2017, the plaintiff’s lawyer contacted Melissa Miller of Howie, Sacks & Henry LLP to determine whether she would be interested in assuming carriage of this file. In May 2017 the plaintiff’s lawyer at the time met with the plaintiff and Ms. Miller to review the matter. The plaintiff then formally retained Ms. Miller as her lawyer in late July 2017. A notice of change of lawyers was filed on August 9, 2017.

[12] It appears that some time passed while the plaintiff’s new lawyer familiarized herself with this matter. Ultimately, this motion to restore this action to the trial list was brought in April 2018. This motion was then adjourned on consent several times and heard by me on September 19, 2019.

ANALYSIS

[13] As stated above, I am satisfied that this action should be restored to the trial list. There was no significant unexplained delay prior to the action being set down for trial. Steps were taken to advance this litigation including production, discovery, mediation and a defence medical examination of the plaintiff. Counsel for the defendants acknowledged in argument that if there was any delay during this time, such delay has been excused by the defendants.

[14] There was some delay after the certification form was received from the trial coordinator’s office. However, it appears that this delay was initially a result of the plaintiff’s lawyer being away on parental leave. When the plaintiff’s lawyer returned from parental leave in December 2015, the certification form was completed and sent to the defendants’ lawyer.

[15] The defendants’ lawyer did not respond to the plaintiff’s delivery of the certification form. It also appears that the plaintiff’s lawyer failed to follow-up on the completion of the certification form and this action was therefore struck from the trial list in May 2016.

[16] I agree with the defendants that a plaintiff must assume the primary responsibility for the progress of an action. However, the conduct of a defendant may also be a relevant factor. All parties must play their part in moving actions forward. See Carioca’s Import & Export Inc., at paragraph 53. It is also important to note that the certification form on its face requires all parties to discuss relevant matters and complete the form on a joint basis. In my view, the delay between December 2015 and May 2016 was the responsibility of both sides.

[17] Mr. Kealy argued that any delay in bringing this motion after the action was struck from the trial list is not a relevant consideration on this motion. Therefore, any delay analysis should end as of May 2016. I do not agree. The applicable authorities from the Court of Appeal require a plaintiff to provide an acceptable explanation for any litigation delay. This proceeding remains active. Further steps are necessary to bring this matter to trial. It has not been dismissed. The plaintiff has the primary responsibility for advancing a claim and is required to adequately explain any litigation delay. In my view, this includes any delay in moving to restore an action to the trial list, which is a necessary step to move this matter forward. I note that delay by the plaintiff in moving to restore her action to the trial list was a significant factor considered by the Court of Appeal in Nissar. See Nissar at paragraphs 32 and 33.

[18] Further delay is present from May 2016 to late 2016. However, I accept the plaintiff’s evidence that during this time period the plaintiff’s lawyer believed that the certification form had been filed and she was waiting for the court to confirm trial dates. This is the unchallenged evidence of the plaintiff’s lawyer at the time. The defendants did not cross-examine on this evidence.

[19] The delay from late 2016 to August 2017 has been explained by the plaintiff as resulting from her change of counsel. I also accept that further delay would result from the fact that the plaintiff’s new lawyer would need to familiarize herself with an action that was well advanced at the time of her retainer.

[20] Certainly, this motion could and should have been brought sooner. However, perfection is not the standard. As I have stated in several previous decisions dealing with similar issues, a plaintiff’s explanation for delay need not be perfect. It simply needs to be acceptable. The court’s consideration of litigation delay should not involve a month by month forensic examination of the conduct of an action. The court must take a larger view and make an overall assessment of the steps taken in relation to the claim to determine whether a plaintiff has provided an acceptable explanation for any delay. See Carioca’s Import & Export Inc. at paragraph 46. In my view, the plaintiff has met this requirement.

[21] I am also satisfied that the plaintiff has rebutted any presumption of prejudice. In my view, the presumption of prejudice is not particularly strong in this case. This is not a situation where little has been done and the action has been ignored and forgotten for long periods of time. Much has taken place in connection with this action. It is largely ready for trial. Production has been made and discovery has taken place, including an examination of the driver of the bus. The plaintiff’s damages documents and other evidence have been preserved and produced. Witnesses and statements are available. The plaintiff has been examined by a defence medical expert. The defendants are sophisticated parties and have been aware of this claim from the beginning. They have been represented by capable counsel throughout. They have had a full opportunity to investigate all aspects of the plaintiff’s claim and the circumstances of the initial incident itself, as they deemed necessary. The plaintiff has met this element of the test.

CONCLUSION

[22] The plaintiff has provided an acceptable explanation for any delay in advancing this action. The plaintiff has also met her onus to rebut any presumption of prejudice. There is no compelling evidence of actual prejudice to the defendants. It is therefore just in the circumstances of this action that the court exercise its discretion to grant the plaintiff leave to restore this action to the trial list.

ORDER

[23] I therefore order as follows:

(a) this action is restored to the trial list; and,

(b) if the parties are unable to agree on the issues of a timetable for the remaining steps in this action or the costs of this motion, they shall provide the court with brief submissions in writing by October 23, 2019, which submissions may be sent directly to me by email.

Master R. A. Muir

DATE: 2019 09 23