COURT FILE NO.: CV-14-500150
DATE: 2019 10 22
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: JOSEPH O. YANG and TORONTO FULL GOSPEL CHURCH, Plaintiffs
- and -
THE CHRISTIAN WORLD KOREA INC., JUN YONG SUH and SUNG HEE SUH, Defendants
BEFORE: Master Todd Robinson
COUNSEL: A. Meisels, for the plaintiffs / moving parties
B. McEachern, for the defendants
HEARD: July 25, 2019
REASONS FOR DECISION
[1] The plaintiffs move for a status hearing pursuant to Rule 48.14(5) of the Rules of Civil Procedure, RRO 1990, Reg 194 (the “Rules”). Continuation of the action is opposed by the defendants primarily on the basis of actual prejudice suffered from delay. They seek to have the action dismissed.
[2] The underlying action is a defamation claim by the plaintiffs. It arises from allegedly false and defamatory publications made by the defendants in The Christian World, a Korean-language newspaper published by the corporate defendant, The Christian World Korea Inc. (“CWK”). The individual defendants are the principals of CWK. The defendants rely on defences of justification, qualified privilege, fair comment and responsible journalism in response to the alleged defamation. One of the individual defendants, Jun Yong Suh, passed away in January 2018, so the action is currently stayed as against him by operation of Rule 11.01 of the Rules.
[3] I have carefully considered the materials filed and the submissions of counsel. Although a close call, I have determined that the action should not be dismissed for delay and have fixed a timetable for remaining steps, including a new set down deadline. My reasons for that decision follow.
Analysis
Applicable Legal Test
[4] Both sides rely on case law applicable to motions to set aside registrar’s dismissal orders under Rule 37.14(1) of the Rules. Notwithstanding that apparent agreement of the parties on the applicable legal analysis, the correct analysis depends on the nature of the motion before me. If the motion is properly a motion under Rule 48.14(5), as it has been framed by the plaintiffs, then the two-part conjunctive test outlined in cases such as Faris v. Eftimovski, 2013 ONCA 360 and Kara v. Arnold, 2014 ONCA 871 applies. If the motion is construed as a motion under Rule 37.14(1), as the defendants argue, then the analysis outlined by the Court of Appeal in H.B. Fuller Co. v Rogers, 2015 ONCA 173 applies.
[5] The defendants argue that, by the strict wording of Rule 48.14(5), the plaintiffs cannot properly bring this motion as a motion for a status hearing since this motion was brought more than five years after commencement of the action. They submit that the only reason the action has not already been administratively dismissed is a data entry error following the prior consent order of Justice Aktar dated December 16, 2015. Justice Aktar’s order set aside a noting in default of CWK and restored the action against the individual defendants, against whom it had been discontinued. The defendants argue that, since the action ought already to have been dismissed pursuant to Rule 48.14(1), the court should proceed as if there had already been an administrative dismissal and apply the Reid factors in determining the motion. No case law was provided supporting such an approach.
[6] The assumption as to why the registrar did not issue a dismissal order may or may not be correct. In my view, though, the material fact is that there has been no registrar’s dismissal.
[7] Rule 48.14(5) provides essentially that any party may move for a status hearing prior to expiry of the period set in Rule 48.14(1), which in this case would be expiry of the fifth anniversary of the claim being issued. Conversely, Rule 37.14(1) affords a party the right to move to set aside or vary an order in three specific circumstances. It provides as follows:
37.14 (1) A party or other person who,
(a) is affected by an order obtained on motion without notice;
(b) fails to appear on a motion through accident, mistake or insufficient notice; or
(c) is affected by an order of a registrar,
may move to set aside or vary the order, by a notice of motion that is served forthwith after the order comes to the person’s attention and names the first available hearing date that is at least three days after service of the notice of motion.
[8] None of Rule 37.14(1)(a), (b), or (c) apply. There has been no ex parte order, no hearing at which the plaintiffs failed to attend, and no registrar’s order. Simply put, if I were to accept the defendants’ submission on the test to be applied, I would be reading Rule 48.14(5) strictly, but not applying a similar strict reading to Rule 37.14(1).
[9] H.B. Fuller was decided in the context of a motion to set aside a registrar’s dismissal order. Regardless of the reasons, there is no dismissal order to be set aside in this case. In bringing this motion for a status hearing, I agree that the plaintiffs have not complied with the strict wording of Rule 48.14(5). However, that does not mean a status hearing is improper. There does appear to be a gap in the Rules whereby, procedurally, a plaintiff has no clear right to move proactively to deal with a pending administrative dismissal after the fifth anniversary of the claim. Nevertheless, defendants’ counsel rightly conceded that a plaintiff should be entitled to seek relief from the court to avoid a pending dismissal, even after the fifth anniversary has formally passed.
[10] In my view, a status hearing as sought by the plaintiffs is the correct relief. Pursuant to Rule 2.01(1)(a) of the Rules, I have discretion to waive non-compliance by the plaintiffs with the strict wording of Rule 48.14(5), and I do so.
[11] I have accordingly assessed the motion before me as a status hearing. Pursuant to Rule 48.14(7), the plaintiffs must show cause why the action should not be dismissed for delay. In determining whether or not the plaintiffs have met their onus, I have applied the two-part conjunctive test that requires the plaintiffs to demonstrate that there is an acceptable explanation for litigation delay and that, if the action is allowed to proceed, the defendants will not suffer any non-compensable prejudice. The principles applicable to the disposition of a status hearing have been recently summarized by Justice Raikes in 1682558 Ontario Limited v. Salman, 2019 ONSC 4120 at paras. 4-6. These are the principles that I have applied.
[12] Given my determinations below, had I accepted the parties’ agreement that the proper test to be applied is the four-factor contextual analysis set out in cases such as H.B. Fuller, I would nevertheless have reached the same result.
Explanation for the delay
[13] This action was commenced over five years before the motion for a status hearing was brought. Although affidavits of documents have been exchanged, no discovery plan appears to have been discussed or agreed and no examinations for discovery have occurred. Relevant procedural history for the action is as follows:
(a) March 13, 2014: Statement is claim is issued.
(b) October 2014: The plaintiffs discontinue their action as against the individual defendants. CWK is noted in default and the action is set down for an undefended trial against it.
(c) July 2, 2015: Sometime after October 2014 the plaintiffs change their counsel. A motion is brought in July 2015 by new counsel for an interim injunction, which is heard by Justice Brown. The plaintiffs seek a 10-day interim injunction prohibiting the defendants from publishing anything about the plaintiffs in The Christian World newspaper. The interim injunction is granted.
(d) July 13, 2015: Having been unable to effect service of the interim injunction order and related materials, the plaintiffs appear before Justice Pollack and obtain an order extending the interim injunction.
(e) July 14, 2015: The plaintiffs appear before Master Pope on an ex parte basis and obtain an order for substituted service on the defendants of the injunction orders and related injunction materials, including materials for a further motion to extend the injunction.
(f) July 23, 2015: The plaintiffs’ motion to extend the injunction is heard by Justice Myers. In the absence of the defendants appearing, an order is made extending the interim injunction until trial. Costs of $11,466.82 are awarded to the plaintiffs payable by the defendants (the “Injunction Costs Award”).
(g) November/December 2015: A motion is brought by the defendants to set aside the noting in default of CWK and to vary the prior orders that granted relief against the individual defendants, Mr. Suh and Ms. Suh, against whom the action had been discontinued at the time the orders were made. The plaintiffs bring a cross-motion to set aside the discontinuances as against Mr. Suh and Ms. Suh. A consent resolution is reached and, on December 16, 2015, Justice Aktar issues a consent order that, among other relief, restores the action against Mr. Suh and Ms. Suh, sets aside the noting in default of CWK, and stays enforcement of the Injunction Costs Award “until adjudication of the Defendants’ intended motion to set aside [the order of Justice Myers dated July 23, 2015] or pending further Order of this Court.” That intended motion is not ultimately brought by the defendants.
(h) February 12, 2016: The defendants serve their statement of defence.
(i) February 26, 2016: The plaintiffs serve their reply.
(j) February 2017: The plaintiffs attend Civil Practice Court to schedule a summary judgment motion and are directed by Justice Wilson to attend a chambers appointment.
(k) March 2017: A chambers appointment proceeds before Justice Myers, who determines that the summary judgment motion is premature and that discoveries should proceed before any summary judgment motion is brought.
(l) Second Quarter 2017: Affidavits of documents are exchanged. The parties also exchange notices of examination, but the defendants ultimately refuse to proceed with discoveries until a dispute regarding the scope of the plaintiffs’ documentary production is resolved (namely productions of records provided by the plaintiffs to the Public Guardian and Trustee for a relevant investigation). Although not in evidence, these facts were acknowledged and conceded by defendants’ counsel during oral submissions.
(m) May 2017: The defendants move before Master Abrams on the scope of documentary discovery, seeking additional pre-examination production from the plaintiffs. Master Abrams dismisses the motion as premature.
(n) June 2017: Master Abrams releases her costs endorsement from the defendants’ motion.
(o) September 2017: The plaintiffs submit a requisition to the court for a motion before a judge. Defendants’ counsel writes to plaintiffs’ counsel and his clerk seeking information on the motion and noting that the rule relied upon in the requisition, namely Rule 39.08(2)(b), does not exist. A response is provided confirming that a motion date has been booked for January 15, 2018, but without explaining the nature of the motion. Confirmation is given that an updated requisition “reflecting a correct rule” has been submitted to the court. (As reflected in the case history for this action, a motion was requisitioned by the plaintiffs for relief pursuant to Rule 37.14(4), i.e., a motion to set aside, vary or amend an order of a judge. That motion date was vacated by the court for failure to file the notice of motion by the required deadline.)
(p) November 2017: Defendants’ counsel writes a follow-up email on November 3, 2017 and a follow-up letter on November 27, 2017, both seeking confirmation on whether or not the plaintiffs’ motion is proceeding and for what relief.
(q) December 2017 to April 30, 2019: No steps are taken by either side to advance this action.
(r) April 30, 2019: Plaintiffs’ counsel writes to defendants’ counsel seeking to schedule this status hearing.
(s) May 2, 2019: Defendants’ counsel responds to advise that he will seek his clients’ instructions. He further outlines the position argued on the motion that the plaintiffs are out of time to request a status hearing given the passing of the fifth anniversary of the claim, but provides available dates. The plaintiffs’ motion for a status hearing is thereafter booked and brought.
[14] There are several lengthy periods in which no substantive steps occurred, most notably the period from July 2017 to April 30, 2019. The defendants concede that there is an acceptable explanation for delay until July 2017, so the period after that time is the only period at issue on this motion.
[15] In explaining that significant gap, the plaintiffs rely on an action brought by Kwon-Tae Joo a.k.a. Jacob Joo against one of the plaintiffs in this action, Joseph Yang, in Court File No. CV-13-483485 (the “Joo Action”). The plaintiffs argue that the Joo Action is related. Mr. Yang’s affidavit on this motion identifies Mr. Joo as the individual perpetrating the original defamatory statements and publications that were ultimately published in The Christian News. Mr. Yang swears that he hoped a settlement in the Joo Action would be reached, in which Mr. Joo admitted his statements were false. Mr. Yang felt that would hasten resolution of this action. There are no details of steps taken in the Joo Action except for a mediation occurring on April 15, 2019. Only the pleadings in the Joo Action have been provided. The dates of the pleadings demonstrate substantial delay in closing pleadings, with the statement of claim being issued in June 2013 and the reply and defence to counterclaim being served in March 2016. However, as noted above, the defendants concede there is an acceptable explanation for delay until July 2017, so pleadings in the Joo Action are not relevant to this motion.
[16] The plaintiffs’ primary reliance on the Joo Action is to explain delay in this action from early 2018 until shortly before this motion was brought. Mr. Yang’s swears that he advised Mr. Meisels, then-counsel in both this action and the Joo Action, that he had retained new counsel and that Mr. Meisels should transfer files to that new counsel. Mr. Yang’s specific evidence is as follows:
In early 2018, I advised my lawyer, Alvin M. Meisels of Wise & Associates, P.C., that I retained a new lawyer, Howard Winkler. Pursuant to my direction, Mr. Meisels transferred the contents of his files in respect of both this action and the Joo Action to Mr. Winkler.
[17] Mr. Yang also gives evidence that, on April 15, 2019, a successful mediation was conducted in the Joo Action, resulting in Mr. Joo’s agreement to pay compensation to Mr. Yang and to publish apologies in which Mr. Joo’s prior statements were acknowledged to be based on false and groundless information. Following that settlement, Mr. Yang swears that Howard Winkler (the new lawyer) contacted Mr. Meisels to advise of the settlement and follow up on this action. Mr. Winkler’s email is in evidence and, given the significance placed upon it by the plaintiffs, I have reproduced its contents below:
Alvin, you are still counsel of record in this matter.
I am concerned about the 5 year dismissal of the action.
The claim was issued on March 13, 2014.
Attached is a Case History Report. The good news is that the action has not yet been dismissed. I am not sure why. Perhaps because it is listed as “Civil Mediated Timeline”.
The last Orders are dated May 10 and June 20, 2017. I do not have copies of those orders. Can you send them to us.
Out of an abundance of caution, I think you should be requiring a Status Hearing in order to prevent an administrative dismissal.
Please let me know asap if you agree.
Howard.
[18] Mr. Yang swears to Mr. Meisels advising him that Mr. Meisels was “under the mistaken impression that Howard Winkler had taken over carriage of both the Joo Action and this proceeding”. Mr. Winkler’s email is argued to reveal to Mr. Meisels his misapprehension that he had no longer been acting for the plaintiffs in this action. That prompts the letter on April 30, 2019 to defendants’ counsel seeking to schedule this status hearing.
[19] The defendants do not dispute the promptness of this motion being brought. As noted above, it is also conceded that there is no dispute regarding explanation for delays prior to July 2017 since discoveries could not reasonably have proceeded before then. In assessing the explanation for delay, I have accordingly focused on the period from July 2017 until this motion was brought.
[20] Mr. Meisels’ argued misapprehension that the plaintiffs had engaged Mr. Winkler to act in both this action and the Joo Action is central in the plaintiffs’ explanation for the significant period of inactivity from early 2018 to April 2019. The plaintiffs point to decisions such as Batgi v. Centinkaya (CV-09-388267, October 13, 2017, unreported), at para. 40, for the proposition that solicitor inadvertence or neglect should not prevent a litigant from having its case determined if, on the whole, the interests of justice are served by allowing the action to continue.
[21] Mr. Yang’s evidence, as extracted above, is that, “Pursuant to my direction, Mr. Meisels transferred the contents of his files in respect of both this action and the Joo Action to Mr. Winkler” (emphasis added). Mr. Yang has sworn to his belief that Mr. Meisels understood his retainer had ended. The drafting of Mr. Yang’s affidavit on his intentions behind the file transfers is not as clear as it might have been. Mr. Meisels’ direct evidence would also have been preferable. Nevertheless, I accept that Mr. Yang believed Mr. Meisels was continuing to represent the plaintiffs in this action, whereas Mr. Meisels believed that Mr. Winkler had been retained in respect of both actions. It is reasonable for a lawyer to understand that his services have been terminated when told to transfer his files. Having reviewed the pleadings in the Joo Action, I appreciate that counsel for Mr. Yang in that action may reasonably need information from the file in this action in order to defend it.
[22] While that explains why neither Mr. Meisels nor Mr. Winkler took steps to move this action forward, it does not explain why Mr. Yang was apparently content to have no updates from Mr. Meisels on the progress of this action, why he did not seek such updates, and why he apparently provided no instructions to move this action forward. Mr. Yang’s affidavit is silent on these points, yet Mr. Yang must surely have known that the previously cancelled discoveries had still not been re-scheduled. Mr. Yang’s only evidence is that he was focused on the Joo Action.
[23] I am not satisfied that defending another action, even if related, is an explanation for failing to move this action forward. There is insufficient evidence before me to find that any determinations in the Joo Action bear on this action, or that any steps being taken in that action (on which there in no evidence other than mediation in April 2019) reasonably impacted moving this action forward. As noted above, Mr. Joo is alleged to be a source of the defamation in this action and the plaintiffs allege that the settlement reached in the Joo Action involves a relevant admission of wrongdoing. I lack sufficient evidence to accept that argument.
[24] The only movement in this action between July 2017 and Mr. Meisels’ correspondence on April 30, 2019 is correspondence in September and November 2017 regarding an anticipated plaintiffs’ motion in January 2018. While that motion did not ultimately proceed, it was booked. I do not have evidence regarding what was intended or why it was not pursued (other than Mr. Meisels’ apparent misapprehension that he was no longer acting). However, I cannot find that no steps have been taken since July 2017, as the defendants argue.
[25] It is not disputed that neither party thereafter took any steps in the litigation until after settlement of the Joo Action. I accordingly find that there is 19 months of insufficiently explained delay from September 28, 2017 (the date of the last correspondence in 2017 from Mr. Meisels’ office) to April 30, 2019.
[26] The plaintiffs submit that not all delay should be attributed to them, and that the defendants were complicit in delay by taking no steps themselves. They point to the decision in London (City) v. Osler Hoskin & Harcourt LLP, 2016 ONSC 2835 at paras. 22-25, where Heeney R.S.J. considered and gave weight to delay attributable to the defendants, citing the Court of Appeal’s decision in Carioca’s Import & Export Inc. v. Canadian Pacific Railway, 2015 ONCA 592 for the proposition that “objectives of timely and efficient justice require all parties to play their parts in moving actions forward.” The defendants dispute the plaintiffs’ position and argue they have no burden to either explain the delay or move an action to trial, and that the primary responsibility for the progress of an action lies with the plaintiff: Prescott v. Barbon, 2018 ONCA 504 at para. 30. They further submit that they have done everything they ought to have done and submit that it was incumbent on the plaintiffs, not the defendants, to move this action forward after the defendants lost their motion before Master Abrams.
[27] None of London (City), Carioca’s Import & Export Inc., or Prescott were status hearing cases. London (City) was decided in the context of a motion to dismiss for delay. Carioca’s Import & Export Inc. was an appeal from a refusal to restore an action after it had been struck from the trial list. Prescott was an appeal in the context of a motion to set aside a registrar’s dismissal. Nevertheless, principles cited in those cases are often used as principles of general application in assessing delay in motions of these kinds.
[28] I accept that the plaintiffs have the primary responsibility of moving the action forward, and that the defendants have no evidentiary burden in this motion. However, having no evidentiary burden is distinct from the conduct of the defendants being a potentially relevant factor in assessing delay. In Prescott, a case cited by the defendants, the Court of Appeal acknowledges that conduct of the defendants may be a relevant factor. Paragraph 30, cited by the defendants in support of their position, reads as follows in its entirety (emphasis added):
[30] I agree with the SCJ’s conclusion. There is no burden on the defendant to explain the delay or to move the action to trial: Wellwood, at paras. 37-41, 84; Jadid v. Toronto Transit Commission, 2016 ONCA 936, at para. 23. The primary responsibility for the progress of an action lies with the plaintiff: MDM Plastics Limited v. Vincor International Inc., 2015 ONCA 28, at para. 33. As Cronk J.A. stated in Wellwood at para. 48, “the initiating litigant generally suffers the consequences of a dilatory regard for the pace of the litigation.” Although there may be occasions where the defendant’s conduct may be relevant, (see for example Labelle v. Canada (Border Services Agency), 2016 ONCA 187; Aguas v. Rivard Estate, 2011 ONCA 494 and Armstrong v. McCall (2006), 2006 CanLII 17248 (ON CA), 213 O.A.C. 229, at para. 26), assigning fault that arises from a failure to file a notice of intent to defend or a statement of defence within the context of r. 48 was misplaced.
[29] During oral submissions, defendants’ counsel did acknowledge that a defendant’s conduct may be relevant, but argued that its relevance is only where the defendant obstructs the progress of the action. I was directed to no case law supporting such a narrow scope of relevance for a defendant’s conduct in assessing delay. In my view, a general rule for what conduct of a defendant is relevant or not relevant on a motion of this nature is inadvisable. Whether a defendant’s conduct is or is not relevant depends on the facts and circumstances of each case.
[30] Following November 2017, there was no communication from defendants’ counsel. The defendants rely on Ms. Suh’s evidence of a serious head injury suffered in November 2017 and Mr. Suh’s cancer treatment to support an inference that defendants’ counsel was unable to obtain instructions. Mr. Suh passed away on January 23, 2018, but that fact was not relayed to plaintiffs’ counsel in any correspondence included in the record before me, seemingly because defendants’ counsel was equally unaware. (There is, however, uncontested evidence from Ms. Suh that Mr. Yang attended Mr. Suh’s funeral, so the plaintiffs were aware of Mr. Suh’s passing.)
[31] The defendants submit that I should find the plaintiffs’ delay was intentional. It was argued that Mr. Yang does not want to be examined for discovery because he wants the “status quo” of the currently indefinite injunction. The defendants further submit that Mr. Yang wishes to avoid having to produce the documents argued before Master Abrams, because they will not support the plaintiffs’ case and they will undermine the injunction. Defendants’ counsel conceded during oral submissions that the plaintiffs had served a notice of examination for discoveries in 2017, but that the defendants insisted the motion ultimately heard by Master Abrams proceed first and, further, that the defendants’ examination of the plaintiffs had to precede any examination of the defendants. Put another way, the initial roadblock to proceeding with discoveries was the defendants’ position. Even now, the defendants submit that if the action is permitted to proceed then their examination of the plaintiffs must occur before the defendants are examined.
[32] My difficulty with the argued inference that the plaintiffs’ delay was intentional because it was beneficial to them is that there was also a benefit to the defendants from the action remaining in abeyance. Given the defendants’ evidence on this motion about their current impecuniosity and cessation of CWK’s business, the injunction appears to have no practical effect on them. Justice Aktar stayed enforcement of the Injunction Costs Order pending an intended motion to set aside the injunction, which the defendants have never brought in the 3.5 years since advising the court of their intention to do so. In the circumstances, not moving the action forward seems beneficial to the defendants, whose obligation to pay the Injunction Costs Order remains stayed. If I am to infer that the plaintiffs wanted to keep the “status quo” by leaving this action in abeyance, it is difficult not to make a similar inference based on the evidence before me regarding the defendants’ own benefit from the action not proceeding.
[33] There is, in my view, insufficient evidence before me to draw any inference as to the actual intent of either side in failing to move the action forward. I thereby decline to do so.
[34] In my view, though, the evidence does support that the defendants were equally content to leave the action in abeyance. While I do not dispute that the plaintiffs have the burden of moving the action forward, I cannot ignore the silent complicity of the defendants in the 19 months of delay. In my view, that is relevant in assessing a just result given that it was the defendants’ position on further documentary production from the plaintiffs that initially stalled the action from proceeding to oral discoveries.
[35] This case is a close call. Although not specifically raised by either party, prior case law has held that showing an “acceptable” explanation does not necessitate a “good” explanation, and that an “adequate” or “passable” explanation ought to suffice: see, for example, 3 Dogs Real Estate Corp. v. XCG Consultants Ltd., 2014 ONSC 2251. In my view, taking into account all the circumstances, the plaintiffs’ explanation for delay is not good, but it is passable. I accordingly find that the plaintiffs have met their onus to show an acceptable explanation for the delay, albeit barely.
Prejudice
[36] Since the test under Rule 48.14(7) is conjunctive, my finding above does not dispose of the motion. The plaintiffs must also show that there is no non-compensable prejudice to the defendants from the action proceeding. Having considered the evidence and arguments on prejudice, I find that there is no prejudice arising from the plaintiffs’ delay sufficient to justify dismissal of the action.
[37] Case law is clear that the relevant prejudice at a status hearing is prejudice arising from the plaintiffs’ delay, not as a result of the sheer passage of time: Carioca’s Import & Export Inc., supra at para. 57. The defendants’ materials appear to rely on three instances of actual prejudice in arguing for dismissal: a head injury suffered by Ms. Suh in November 2017, the death of Mr. Suh in January 2018, and financial impecuniosity of the defendants (which defendants’ counsel confirmed in argument is not being relied upon as prejudice, but is instead relied upon as a factor that the court should assess in determining a fair and just result).
[38] Ms. Suh swears to her head injury and its effects at paras. 2-4 of her affidavit. Her statements are unsupported by any medical evidence. In any event, the injury was suffered shortly after commencement of the period of delay. It is, in my view, prejudice that Ms. Suh would have suffered if the action had proceeded in the ordinary course, not prejudice arising from the delay.
[39] I have determined that Mr. Suh’s passing is similarly prejudice that the defendants would also have suffered in any event. Based on the record before me, the first notice given to the plaintiffs regarding Mr. Suh’s cancer was by letter dated September 26, 2017. The time between that letter and Mr. Suh’s passing on January 23, 2018 is only 4 months. While notice of Mr. Suh’s cancer was given in that letter dated September 26, 2017 and again in a further letter dated November 27, 2017, neither of these letters suggest the cancer is terminal, that Mr. Suh had only months to live, or that he would be made available for immediate examination if requested. There is nothing in the correspondence suggesting any urgent need to examine Mr. Suh. I accordingly do not find the failure of the plaintiffs to immediately seek examination of Mr. Suh to be unreasonable. I thereby do not view Mr. Suh’s unfortunate passing as prejudice arising from the plaintiffs’ delay. In my view, similar to the holding in H.B. Fuller, supra at para. 45, the prejudice from Mr. Suh’s death has not been increased by the plaintiffs’ failure to set the action down within the required timeline.
[40] If I am wrong in that, in my view, Mr. Suh’s passing is still not sufficient prejudice to warrant dismissal of the action. Defendants’ counsel conceded during oral argument that the primary individual defendant who authored the allegedly defamatory articles was Ms. Suh, not Mr. Suh. The key defendant thereby remains alive and nothing before me suggests she is incapable of being examined or lacks relevant recollection of events. There is also nothing before me indicating that any relevant and material evidence can only be obtained from Mr. Suh, or that any evidence to be obtained from Mr. Suh cannot also be obtained from Ms. Suh.
[41] Regarding impecuniosity, although confirmed not to be argued as “prejudice”, there is insufficient evidence filed to make any determination as to the alleged impecuniosity of the defendants. I have accordingly not further considered the defendants arguments on their financial situation.
[42] On the totality of the evidence filed, I find that the plaintiffs have satisfied the second aspect of the test and that the defendants will not suffer any non-compensable prejudice from the action being permitted to continue.
Additional Consideration
[43] Separate from delay and prejudice, the defendants also argue that the conduct of the plaintiffs in allegedly publishing altered versions of Justice Myers’ order dated July 23, 2015 is a relevant factor. The exhibit to Ms. Suh’s affidavit does appear to be an altered version of the order. However, there is insufficient evidence to determine the authenticity of the publication or to make a direct connection to the plaintiffs in its publication. I have determined that the evidence cannot be given any weight on this motion. It is also not a factor directly addressing issues of delay or prejudice.
[44] I nevertheless remain concerned that Justice Myers’ order, as issued and entered, appears to have been published in an altered form. If authenticity of the reproduction can be established and Ms. Suh’s belief that the plaintiffs are responsible for the alteration and publication can be substantiated, then it is a serious matter that the court will not ignore.
Disposition
[45] For the foregoing reasons, I make the following orders:
(a) The plaintiffs’ motion is granted and the action shall be permitted to continue.
(b) The parties shall adhere to the following timetable for remaining steps:
(i) The plaintiffs shall obtain an order to continue against the estate of Jun Yong Suh by November 15, 2019.
(ii) If the defendants still intend to proceed with a motion for a further and better affidavit of documents from the plaintiffs prior to examinations for discovery, then the parties shall consult and determine if a long motion (i.e., greater than 2 hours) is reasonably required for the motion. If so, then the parties shall submit a requisition to schedule long motion in accordance with paragraph 25 of the Consolidated Practice Direction for Civil Actions, Applications, Motions and Procedural Matters in the Toronto Region by no later than November 15, 2019. If not, the motion shall be booked on a mutually agreeable date to be heard by no later than December 31, 2019.
(iii) Examinations for discovery shall be completed by February 28, 2020, with the plaintiffs examined first by the defendants.
(iv) All answers to undertakings and positions on matters taken under advisement from the examinations for discovery shall be provided within 60 days of the undertaking being given or matter being taken under advisement.
(v) Mandatory mediation shall be completed by August 31, 2020.
(vi) The action shall be set down for trial by September 30, 2020.
(c) The timetable set out in subparagraph (b) above may be varied by mutual consent of the parties, in writing, provided that the new set down deadline shall only be amended by court order.
(d) Subject only to further order of the court, the registrar shall dismiss this action for delay with costs unless the action is set down for trial or terminated by any other means by September 30, 2020.
Case Management
[46] During the course of oral submissions, and in the event the action was not dismissed for delay, defendants’ counsel requested an order that this action be assigned to case management. Plaintiffs’ counsel agreed that such on order is appropriate. I have considered the criteria in Rule 77.05(4) of the Rules. There are only two sets of counsel and parties, the action is only moderately complex based on the evidence filed on this motion, and this the first occasion on which a timetable has been ordered. The timetable should provide the parties with needed assistance and structure in moving the action forward with fixed deadlines for next steps. In my view, case management is not warranted at this time.
[47] Should the parties encounter difficulties complying with the timetable ordered, or if further evidence is available to support the criteria in Rule 77.05(4), then the issue of case management may be revisited. If case management is further pursued, the parties should have regard to Part II of the Consolidated Practice Direction for Civil Actions, Applications, Motions and Procedural Matters in the Toronto Region.
Requested Reduction of Master Abrams’ Costs Award
[48] The defendants request that the costs order of Master Abrams dated June 20, 2017 requiring them to make payment of $1,000.00 to the plaintiffs by August 31, 2017 be reduced by $110.51. That is the cost incurred by the defendants to deliver hard copies of their productions to the plaintiffs, which has not been paid by the plaintiffs. From the materials filed, it appears that a bank draft for $889.49 was delivered to plaintiffs’ counsel with service of the responding motion materials.
[49] I do not have the decisions of Master Abrams or the relevant motion materials in the record before me. There is no motion before me to vary that costs order. I do not know if productions were ordered to be delivered at the expense of the plaintiffs or the defendants, or if no order was made. If there are any disputes regarding non-compliance with Master Abrams costs order, then the parties may address that on a future motion.
Costs
[50] The plaintiffs seek their partial indemnity costs of this motion in the amount of $4,033.78, inclusive of HST and disbursements. The defendants do not seek any costs regardless of the outcome. Moving this action forward was the obligation of the plaintiffs. Given the lengthy delay in progress of the action and the circumstances of the defendants, it was not unreasonable for the defendants to require that the plaintiffs satisfy the requirement under Rule 48.14(7) of the Rules that they show cause why the action should not be dismissed for delay. This matter was a close call, and the plaintiffs have been given the indulgence of the court in permitting the action to proceed. In all the circumstances, it is appropriate that the plaintiffs bear their own costs of this motion. There shall accordingly be no order as to costs.
MASTER TODD ROBINSON
DATE: October 22, 2019