Court File and Parties
COURT FILE NO.: 12-55924
DATE: 2019/10/08
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Andrew Dupuis, Plaintiff
AND
W.O. Stinson & Son Limited and UTC Canada Corporation, Defendants
BEFORE: Justice R. Ryan Bell
COUNSEL: Frances Shapiro Munn, Agent for Charles Gluek, for the Plaintiff
Pierre Champagne, for the Defendant W.O. Stinson & Son Limited
Calvin Hancock, for the Defendant UTC Canada Corporation
HEARD: September 26, 2019
ENDORSEMENT
[1] W.O. Stinson & Son Limited and UTC Canada Corporation move under Rule 24.01(2) of the Rules of Civil Procedure to dismiss this action for delay. This is a subrogated claim commenced by Mr. Dupuis’ insurer following an oil leak in the basement of his home.
[2] The fifth anniversary of the commencement of the action has passed. The action has not been set down for trial. The onus rests on Mr. Dupuis to demonstrate that the dismissal of the action would be unjust. On the evidence before me, he has failed to do so. The action is therefore dismissed under Rule 24.01(2).
Litigation History
[3] Mr. Dupuis’ action against Stinson was issued on November 7, 2012. Mr. Dupuis claims damages of $500,000 as a result of an oil leak in the basement of his home. The date of the loss was November 1, 2010.
[4] On September 3, 2013, Master MacLeod, as he then was, ordered that the action was deemed to have been issued on November 1, 2012. Master MacLeod also ordered that: (i) the two year period for placing the matter on the trial list under Rule 48.14 would commence on September 3, 2013; and (ii) unless otherwise ordered by the court, the Registrar could not administratively dismiss the action under Rule 48.15.
[5] Stinson’s appeal from the order of Master MacLeod was dismissed.
[6] On July 23, 2015, Mr. Dupuis filed a fresh as amended statement of claim, on consent, primarily to substitute UTC for certain other defendants. In August 2015, Stinson and UTC each filed statements of defence and crossclaim. The parties then exchanged affidavits of documents.
[7] Stinson’s representative was examined for discovery in October 2015. Mr. Dupuis and UTC’s representative were examined in October 2016.
[8] The action was not set down for trial on November 1, 2017.
[9] To date, despite repeated requests by the defendants, Mr. Dupuis has not provided answers to the undertakings given on his examination for discovery. The plaintiff’s former counsel advised counsel for the defendants that he had been unable to connect with Mr. Dupuis regarding his outstanding undertakings. The plaintiff’s former counsel did not respond to the defendants’ proposal for a telephone conference.
[10] One of the undertakings given on Mr. Dupuis’ examination for discovery was to provide the location of the oil tank and details as to its location since 2010. The defendants first learned in May 2019, in the context of these motions, that “the tank has most probably been destroyed due to a clerical error.”
Analysis
[11] Rule 24.01(2) contains mandatory language that the court “shall” dismiss an action for delay if either of the circumstances described in paragraphs 1 and 2 of Rule 48.14(1) applies to the action, unless the plaintiff demonstrates that dismissal of the action would be unjust. Paragraph 1 of Rule 48.14(1), upon which the defendants rely, refers to actions that have not been set down for trial or terminated by any means by the fifth anniversary of the commencement of the action.
[12] Rule 48.14 provides for dismissal of an action by the Registrar and was revised in 2015 to abolish the former status notice regime. Former Rule 48.14(13) provided that at the status hearing, the onus was on the plaintiff to demonstrate why the action should not be dismissed for delay. The test required that the plaintiff demonstrate that there was an acceptable explanation for the delay and establish that if the action were allowed to proceed, the defendant would suffer no non-compensable prejudice (Faris v. Eftimovski, 2013 ONCA 360, at para. 32).
[13] I agree with Gordon R.S.J. in Loiselle v. Violette, 2018 ONSC 2469, at para. 11, that the same test outlined by the Court of Appeal for Ontario in Faris for dismissal under former Rule 48.14(13) applies to a motion to dismiss under Rule 24.01(2); that is, has the plaintiff demonstrated an acceptable explanation for the delay and has the plaintiff established that the defendant would suffer no non-compensable prejudice.
[14] Where a defendant moves to dismiss an action for delay under Rule 24.01(2) and more than five years have passed since the action was commenced, there is a presumption of prejudice to the defendant (Marrello v. Naccarato, 2017 ONSC 757, at para. 35).
[15] The fifth anniversary of the commencement of the claim was November 1, 2017. It is not in dispute that the action was not set down for trial by that date. However, the plaintiff submits that July 23, 2014, the date upon which Stinson’s appeal from Master MacLeod’s order was dismissed, is the more appropriate commencement date from which to calculate the fifth anniversary date.
[16] I disagree. Master MacLeod ordered that the statement of claim be deemed to have been “issued (properly commenced) on November 1, 2012.” The wording of Rule 24.01(2) is clear – the five years runs from the date of the commencement of the action following which the plaintiff must rebut the presumption in favour of a dismissal (Landmark Vehicle Leasing v. TAC Mechanical, 2018 ONSC 5956, at para. 18).
[17] The defendants have established that paragraph 1 of Rule 48.14(1) applies to this action; the onus now shifts to Mr. Dupuis to demonstrate that the dismissal of the action would be unjust.
(i) Is there a reasonable explanation for the delay?
[18] The explanation provided in this case is the apparent inability of Mr. Dupuis’ former counsel to connect with him to answer his undertakings. Former counsel has provided an affidavit in which he states that during 2017 and 2018, his office “consistently took steps to contact Mr. Dupuis to answer undertakings.” No particulars are provided. Mr. Dupuis’ former counsel wrote to counsel for the defendants, asking them to be patient. The last such communication was in September 2017, two months before the five year anniversary date of the commencement of the action. In June and July 2018, months after the expiry of the five year anniversary date, UTC proposed a teleconference among counsel. There was no response from the plaintiff.
[19] Counsel for Mr. Dupuis on these motions points to the fact that the defendants did not move to compel Mr. Dupuis to answer his undertakings. The fact that the defendants did not move to compel Mr. Dupuis to answer his undertakings has no bearing on whether Mr. Dupuis has provided a reasonable explanation for the delay. It is the plaintiff who is responsible for moving the action along (Wallace v. Crate’s Marine Sales Ltd., 2014 ONCA 671, [2014] O.J. No. 4606 (C.A.), at para. 18). The focus of the inquiry is on the conduct of the plaintiff.
[20] What is missing in this case is a reasonable explanation for the delay from Mr. Dupuis. Neither Mr. Dupuis nor his insurer, Wawanesa, provided an affidavit in response to the motions. Although Wawanesa maintains (by way of double hearsay) that it wants to pursue this action (and Wawanesa’s rights are no greater than those of Mr. Dupuis), it was only after more than two years had passed following Mr. Dupuis’ examination for discovery that Wawanesa hired a private investigator who located Mr. Dupuis in March 2019. There is no explanation for Wawanesa’s failure to move more expeditiously to locate Mr. Dupuis in relation to an oil leak that occurred nine years ago. Answers to Mr. Dupuis’ undertakings have still not been provided, three years after Mr. Dupuis was examined for discovery.
[21] In addition, Mr. Dupuis’ former counsel learned in December 2017 (a month after the fifth anniversary of the commencement of the claim) that the oil tank was apparently lost by the engineering firm retained in 2010 to hold the tank in storage. No explanation has been provided for the failure to communicate this information at the time it was received.
[22] In my view, the evidence on behalf of Mr. Dupuis falls short of the mark and does not provide a reasonable explanation for the delay.
(ii) Is there prejudice to the defendants?
[23] I also find that as a result of the loss of oil tank, the defendants would suffer non-compensable prejudice if the action were allowed to proceed.
[24] In support of his position that there is no prejudice resulting from the delay, the plaintiff relies on an email from Michael Flynn, P. Eng., to counsel in which Mr. Flynn expresses the view that the standard of care can be “fully assessed as per the photographs, measurements, documents within the file by interested parties.” He also states that it would be possible for a forensic expert to render an opinion relative to causation, in the absence of the oil tank, and he refers to the possibility of obtaining the findings, observations, photographs and field notes of the Technical Standards and Safety Authority (“TSSA”). At the hearing, counsel confirmed that TSSA has not been contacted with respect to this matter.
[25] In response, the defendants rely on the expert opinion report of David Twigg, a metallurgical engineer. Mr. Twigg has provided a Rule 53 report, together with an Acknowledgment of Expert’s Duty, and a list of the documents he reviewed to prepare his report. In his report, Mr. Twigg outlines the standard test protocol to determine the cause of failure:
• visual examination of the intact tank with photographs taken;
• cutting the bottom of the tank horizontally so the interior can be fully examined;
• removal of sludge to allow for scale and/or bacterial analysis;
• cleaning the bottom section of the tank interior to reveal corrosion patterns;
• sectioning of a test coupon of the leak region to allow for examination and identification whether the hole is interior, exterior or on both surfaces;
• performing metallography on the leak location to identify grain structure and corrosion morphology;
• SEM/EDX analysis to identify scale elements in close proximity to the leak; and,
• chemical analysis of the steel as needed.
[26] Mr. Twigg concludes that without performing these steps, at the minimum, “it would be virtually impossible to reach a conclusion as to the cause of the failure.”
[27] Mr. Flynn’s email is not properly before the court as an expert opinion and I place no weight on it. Mr. Flynn’s relevant experience has not been provided. I do not know what specific documents he reviewed. He has not provided an Acknowledgment of Expert’s Duty. He has not filed an affidavit.
[28] I accept Mr. Twigg’s opinion evidence that in order to determine the cause of an oil leak, the failed component must be examined. This is no longer possible with the destruction of the oil tank. The defendants will not be in a position to have their experts inspect the interior or the exterior of the oil tank.
[29] Causation is a central issue in this case. To show causation the “but for” test is applied: the plaintiff must show on the balance of probabilities, that “but for” the negligence of one or both of the defendants, there would have been no oil leak (Clements v. Clements, 2012 SCC 32, at para. 8). Based on the opinion of Mr. Twigg, whose evidence I accept, the loss of the oil tank renders this analysis virtually impossible.
[30] Mr. Dupuis has failed to provide answers to undertakings in relation to an oil leak that occurred nine years ago. Consents to obtain relevant documents from third parties have not been provided. The oil tank itself has been lost. Because of the loss, the standard test protocol to determine the cause of the failure cannot be followed. I find that if this action were allowed to continue, both defendants would be prejudiced.
Disposition
[31] For these reasons, the action is dismissed pursuant to Rule 24.01(2).
[32] The parties are encouraged to agree on the issue of costs of the motions and the action. In the event they are unable to agree, the parties are permitted to make brief written submissions to supplement their costs outlines. The defendants are to provide their costs submissions by October 21, 2019. The plaintiff is to provide his responding submissions by November 4, 2019. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as amongst themselves.
Justice R. Ryan Bell
Date: October 8, 2019
COURT FILE NO.: 12-55924
DATE: 2019/10/08
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Andrew Dupuis, Plaintiff
AND
W.O. Stinson & Son Limited and UTC Canada Corporation, Defendants
BEFORE: Justice R. Ryan Bell
COUNSEL: Frances Shapiro Munn, Agent for Charles Gluek, for the Plaintiff
Pierre Champagne, for the Defendant W.O. Stinson & Son Limited
Calvin Hancock, for the Defendant UTC Canada Corporation
ENDORSEMENT
Ryan Bell J.
Released: October 8, 2019