COURT FILE NO.: CV-14-505944
MOTION HEARD: 2019 11 12
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Douglas Sandham v. Shred-It International Inc.
BEFORE: MASTER R. A. MUIR
COUNSEL: Ernest J. Guiste for the plaintiff Brian Gottheil for the defendant
REASONS FOR DECISION
[1] The plaintiff brings this motion pursuant to Rule 37.14 of the Rules of Civil Procedure, RRO 1990, Reg. 194 (the “Rules”) for an order setting aside the order of the registrar dated July 12, 2019 dismissing this action for delay. The defendant is opposed.
[2] This is a wrongful dismissal action. The plaintiff was employed by the defendant from 2007 to 2013. He was dismissed, allegedly for cause, on April 5, 2013.
[3] The statement of claim in this action was issued on June 9, 2014. The plaintiff seeks significant damages for wrongful dismissal, along with punitive and exemplary damages. The plaintiff has made serious allegations in relation to harassment and discrimination in the workplace. The defendant has denied the plaintiff’s allegations.
[4] The defendant served its statement of defence on or about January 15, 2015. The defendant’s unsworn affidavit of documents was served in March 2015. The plaintiff served his sworn affidavit of documents in May 2015.
[5] Various discussions and communications took place after the close of pleadings. The defendant took issue with the completeness of the plaintiff’s affidavit of documents. Several other discussions took place with a view to arranging an early mediation. The parties were unable to agree on a mediator and a date for mediation. Ultimately, the plaintiff decided that he would simply proceed with examinations for discovery. The parties had not agreed on discovery dates when this action was dismissed on July 12, 2019.
[6] The plaintiff served a notice of motion seeking an order setting aside the dismissal order in early August 2019. This motion was initially returnable on September 24, 2019. It was adjourned and ultimately heard by me on November 12, 2019.
[7] The test on a motion to set aside an administrative dismissal order is summarized in my decision in Lippa v. Advanced Software Concepts Inc., 2019 ONSC 1873 at paragraphs 10 to 14. The onus is on the plaintiff. While the court must consider all relevant factors, four factors are of central importance. The court must consider the explanation for the delay, whether the deadline was missed due to inadvertence, any delay in bringing the motion to set aside the dismissal order and prejudice to a defendant in presenting its case at trial or as a result of reliance on the finality of a dismissal order.
[8] In most cases, the issue of prejudice is the key consideration and figures largely in determining whether to set aside a dismissal for delay. The Court of Appeal has emphasized that judges and masters must balance any prejudice to a defendant against the prejudice to a plaintiff from having his case dismissed.
[9] Ultimately, the court must take a contextual approach and consider all of the circumstances of each particular case and make the order that is just. In doing so, the court must balance the right of a party to a determination of its claim on the merits with the important principle that actions should be resolved in a timely and efficient manner. However, the preference in our system of civil justice is for the determination of disputes on their merits.
[10] These are the factors and principles I have considered and applied in determining the issues on this motion. In my view, it is just in the circumstances of this action that the dismissal order be set aside.
[11] I agree with the defendant that there has been a lack of substantive progress with this action. However, this is not a situation where nothing has been done to advance the claim. The plaintiff has served his affidavit of documents, as has the defendant, albeit an unsworn version. The plaintiff has made attempts at arranging for a mediation and examinations for discovery. Certainly, the plaintiff could have been more diligent, but an overall view of this matter shows an intention to move ahead with this claim. The plaintiff has stated in his affidavit that he wishes to pursue this matter. The overall delay is not inordinate. The five-year deadline for setting this action down for trial was just a few months ago. The progress of this action has not been perfect but that is not the standard. In my view, the plaintiff has adequately explained the delay to date.
[12] I am not satisfied that the plaintiff has shown that the deadline was missed due to inadvertence. There is simply no evidence as to why the deadline was missed.
[13] This motion was brought in a timely manner. It was served just a few weeks after the dismissal order was made.
[14] Finally, the plaintiff has met his onus with respect to the key consideration of prejudice. The plaintiff’s documents have been preserved as have the defendant’s documents. The plaintiff was present in court today and is available to be examined for discovery. The defendant takes issue with the generality of the plaintiff’s pleading, especially with respect to discrimination. However, I note that the defendant pleaded to the plaintiff’s allegations in that respect. The defendant could have served a demand for particulars or brought a motion to strike if it was unable to plead or viewed the statement of claim as not complying with the rules of pleading. I also agree with Mr. Guiste that it is more likely that any documents relating to the issue of discrimination would be in the possession of the defendant rather than the plaintiff. The defendant knew the nature of the plaintiff’s allegations at the outset and has been represented by capable counsel. It could have preserved any relevant documents. There is no evidence of actual prejudice to the defendant.
[15] When deciding motions of this nature, the court must apply a contextual analysis and consider all relevant factors. It is not necessary for a plaintiff to satisfy all the relevant factors. The court must assess the factors from a contextual perspective and then take a step back and determine what order would do justice in all of the circumstances.
[16] The preference in our system of civil justice is for a determination of disputes on their merits.
[17] The plaintiff has brought this motion promptly and adequately explained his delay. The plaintiff has satisfied the key factor of prejudice. In my view, Lippa can be distinguished. In that case, the plaintiff did nothing for five years and no documentary production had been made. Also, the delay in Lippa was longer than the delay in this action.
[18] For these reasons, I have concluded that it is just to grant the relief requested by the plaintiff. The dismissal order of July 12, 2019 is hereby set aside.
[19] The following timetable shall apply going forward:
(a) If the plaintiff wishes to amend the statement of claim he shall serve a draft amended statement of claim by December 13, 2019 and bring any necessary motion by January 17, 2020;
(b) Examinations for discovery shall be completed by March 31, 2020;
(c) Discovery motions, if any, shall be brought by June 1, 2020;
(d) Mediation shall take place by July 31, 2020; and,
(e) This action shall be set down by August 31, 2020 failing which it shall be dismissed by the registrar.
[20] In accordance with the agreement of the parties, the defendant shall pay the plaintiff’s costs of this motion fixed in the amount of $1,500.00 plus HST within 30 days.
Master R. A. Muir
DATE: 2019 11 12