COURT FILE NO.: CV-13-3480-00

DATE: 2019 11 18

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

SULOCHANA SHANTHAKUMAR

Plaintiff

• and -

CANADA BORDER SERVICES AGENCY, THE REGIONAL MUNICIPALITY OF NIAGARA POLICE SERVICES BOARD and THE ATTORNEY GENERAL OF CANADA

Defendants

COUNSEL:

Peter M. Callahan, for the Plaintiff

Derek Edwards, for the Canada Border Services Agency

Karan Watt, for the Attorney General of Canada

HEARD: July 25, 2019

REASONS FOR JUDGMENT

Fowler Byrne J.

1The Plaintiff seeks an order setting aside the Registrar’s Order of May 21, 2019, dismissing this action, and an order imposing a Discovery Plan in order to move the matter forward. The Defendants, the Canada Border Services Agency and the Attorney General of Canada, oppose this relief. The Regional Municipality of Niagara Police Services Board takes no position on this motion and did not appear.

Background

2The Plaintiff commenced an action on August 13, 2013, wherein she claimed damages in the sum of $12,000,000.00 for negligence, false imprisonment, breach of statutory duty, conspiracy, malicious prosecution and a breach of her rights under the Canadian Charter of Rights and Freedoms. The claims alleged in the action resulted from events that occurred when she attempted to cross the border from New York State into Ontario via the Queenston Bridge on July 4, 2012.

3The action proceeded as follows:

a) On September 23, 2013, the Attorney General of Canada (“AG”) delivered its Statement of Defence;

b) On November 19, 2013, the Canada Border Services Agency (“CBSA”) delivered its Statement of Defence;

c) On October 1, 2016, the Statement of Claim was amended so as to properly name the Regional Municipality of Niagara Police Services Board (“Niagara”) as a Defendant;

d) On November 16, 2016, Niagara delivered a Statement of Defence and Crossclaim;

e) On September 20, 2017, Plaintiff’s counsel served a draft Discovery Plan by fax on the other parties. There was no response. It should be noted that the address and fax number for the AG and the CBSA was the same;

f) On August 31, 2018, Plaintiff’s counsel served by fax another draft Discovery Plan on Niagara and Mr. Edwards (counsel for the CBSA), which included dates that had already passed. Again, there was no response;

g) On September 3, 2018, Plaintiff’s counsel served a third draft Discovery Plan on Niagara and Mr. Edwards which included more suitable dates. The last two drafts accompanied a cover letter that stated that if the Discovery Plan was not signed, the Plaintiff would “bring a motion”;

h) On September 10, 2018, Niagara agreed to the Discovery Plan;

i) Plaintiff’s counsel followed up with Mr. Edwards on October 2, 2018, but there was no response;

j) On November 28, 2018, Plaintiff’s counsel sent a fourth version of the Discovery Plan to opposing counsel. That same day, Mr. Edwards, indicated consent on behalf of the AG (and maintained they had provided it earlier). In an email on that day, Mr. Edwards confirmed he acted as counsel for both the AG and the CBSA, although he admitted at the argument of this motion that this was incorrect;

k) On December 31, 2018, Plaintiff’s counsel provided an unsworn Affidavit of Documents in accordance with the agreed upon Discovery Plan;

l) On January 9, 2019, Niagara delivered its Affidavit of Documents;

m) On February 13, 2019, Plaintiff’s counsel contacted Mr. Edwards requesting the Affidavit of Documents for the AG and the CBSA which was overdue in accordance with the Discovery Plan. There was no response;

n) In March 2019, the Plaintiff’s counsel learned that the Plaintiff was suffering from dementia;

o) On May 21, 2019, this action was dismissed for delay by a Registrar’s Order of that date. No party provided evidence of a notice being sent earlier advising of a pending dismissal;

p) On May 28, 2019, the Plaintiff’s counsel asked for the consent of the Defendants to set aside the dismissal order;

q) On June 4, 2019, the Plaintiff’s counsel advised that a litigation guardian had been selected for the Plaintiff and again asked for Defendants’ counsel’s consent to an order setting aside the dismissal order; and

r) Another request was made on June 12, 2019 for Defendants’ counsel’s consent to an order setting aside the dismissal order. No consent was given.

4Mr. Edwards, counsel for CBSA, claims there was no contact between the CBSA and Plaintiff’s counsel after its Statement of Defence was served, except relating to the Amended Statement of Claim in 2016 and when he served a Notice of Change of Solicitor (wherein he took over carriage of the file). On September 10, 2018, Mr. Edwards then received an email referencing a draft Discovery Plan dated September 20, 2017. Mr. Edwards advises that he had no knowledge of a draft Discovery Plan before that date. He promptly signed the Discovery Plan on September 28, 2018. When Plaintiff’s counsel again asked for a signed Discovery Plan on November 28, 2018, Mr. Edwards advised that he had already signed it. Plaintiff’s counsel indicated that he had not received it. No evidence was given by CBSA as to why they did not deliver their Affidavit of Documents by the agreed upon date.

5Ms. Watt, counsel for the AG, advises that after serving its Statement of Defence, the AG heard nothing from the Plaintiff until they were requested to consent to the Amended Statement of Claim in August 2016, a period of almost three years. In that same month, Ms. Watt advised the Plaintiff that she had assumed carriage of the matter for the AG.

6Counsel for the AG then maintains that after receiving the Amended Statement of Claim in October 2016, she heard nothing further from Plaintiff’s counsel until she received the Registrar’s Order dismissing the matter for delay on May 21, 2019.

7The CBSA claims it will suffer prejudice if the action is reinstated. First of all, it appears that the Plaintiff is suffering from dementia. The note filed by her doctor dated July 20, 2018, states “The above-mentioned patient [the Plaintiff], suffers from dementia. She requires constant personal care & help with her financial matters.” The CBSA states that it will be impossible to examine the Plaintiff in relation to her claims for emotional and mental distress in light of this diagnosis. In addition, the CBSA states that the action was commenced outside of the three-month limitation period set forth in s. 106(1) of the Customs Act, R.S.C., 1985, c. 1 (2nd Supp.).

8The AG also maintains that the Plaintiff’s diagnosis of dementia is a significant factor and prevents the Plaintiff from being examined on matters within her personal knowledge.

9In response, Plaintiff’s counsel maintains that if the Defendants had responded to the first Discovery Plan sent out, the Plaintiff would have been able to fully participate in her examination for discovery. If the Defendants suffer any prejudice as a result of their inability to examine the Plaintiff, it is self-made by not responding to the Plaintiff’s counsel in a timely manner.

Issue and Analysis

10The sole issue before the court is to determine if the Registrar’s Order of May 21, 2019 dismissing the matter for delay should be set aside.

11Rule 48.14(10) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, states that a party may seek to set aside a Registrar’s Order dismissing an action for delay by way of motion pursuant to r. 37.14.

12The grounds on which a Registrar’s Order for dismissal may be set aside have been recently reviewed by the Court of Appeal for Ontario in MDM Plastics Limited v. Vincor International Inc., 2015 ONCA 28. In paras. 11-12 of MDM, the court identified four factors to be considered, as summarized in Marché D’Alimentation Denis Thériault Ltée. v. Giant Tiger Stores Ltd., 2007 ONCA 695, at para. 12:

(1) Explanation of the Litigation Delay: The plaintiff must adequately explain the delay in the progress of the litigation from the institution of the action until the deadline for setting the action down for trial as set out in the status notice. She must satisfy the court that steps were being taken to advance the litigation toward trial, or if such steps were not taken to explain why. … If either the solicitor or the client made a deliberate decision not to advance the litigation toward trial then the motion to set aside the dismissal will fail.

(2) Inadvertence in Missing the Deadline: The plaintiff or her solicitor must lead satisfactory evidence to explain that they always intended to set the action down within the time limit set out in the status notice, or request a status hearing, but failed to do so through inadvertence. In other words the penultimate dismissal order was made as a result of inadvertence.

(3) The Motion is Brought Promptly: The plaintiff must demonstrate that she moved forthwith to set aside the dismissal order as soon as the order came to her attention.

(4) No Prejudice to the Defendant: The plaintiff must convince the court that the defendants have not demonstrated any significant prejudice in presenting their case at trial as a result of the plaintiff’s delay or as a result of steps taken following the dismissal of the action.

13The court is required to review these factors with a contextual approach, and consider and weigh all the relevant factors to determine an order that is just in all the circumstances: Scaini v. Prochnicki, 2007 ONCA 63, at paras. 23-24.

14The court in MDM recognized that the issue of prejudice invariably is a key consideration on a motion to set aside a dismissal order: para. 24. The prejudice that the motion judge or master must consider is the prejudice to the defendant’s ability to defend the action that arises from steps taken following dismissal, or which would result from restoration of the action following the registrar’s dismissal: MDM, at paras. 24-25. The court must also balance any prejudice to the defendant against the prejudice to the plaintiff from having the case dismissed: MDM, at para. 26. The court in MDM quotes, at para. 26:

Expeditious justice must be balanced with the public interest in having disputes determined on their merits. Where, despite the delay, the defendant would not be unfairly prejudiced should the matter proceed for resolution on the merits, according the plaintiff an indulgence is generally favoured.

15Finally, it is not only the plaintiff’s conduct that must be considered. While the plaintiff bears primary responsibility for the conduct of the action, the defendant’s conduct in the litigation is a relevant circumstance: H.B. Fuller Company v. Rogers (Rogers Law Office), 2015 ONCA 173, at para. 23.

(a) Explanation for the Delay and Inadvertence in Missing Deadlines

16In the case before me, I am satisfied that the Plaintiff always intended to proceed with the case and that it was simply a matter of inadvertence that it did not proceed as necessary. While the delay of three years prior to attempting to schedule discoveries is a long period, it is not unusual in cases where it may take time to crystallize the damages. It should also be noted that pleadings were not closed until the end of 2016, and the first request for a Discovery Plan was made in 2017.

17What occurred afterwards appears to be a series of missteps of which the blame cannot be placed entirely with any one party. The counsel with carriage of the matter for the AG and the CBSA changed during the course of the action. The Plaintiff sent out faxes with Discovery Plans attached, sometimes to all counsel, sometimes to just two. Counsel for the AG and CBSA claimed the faxes were never received, despite Plaintiff’s counsel having fax confirmation forms. One of the Defendant’s counsel erroneously indicated to the Plaintiff’s counsel that he acted for two Defendants, a statement the Plaintiff relied on. Sometimes counsel for the AG was entirely left out of e-mail chains.

18On the evidence before me, I therefore find that there was inattention on the part of either the Plaintiff’s counsel or counsel for the AG and CBSA.

(b) Timing of the Motion

19I am also satisfied that the Plaintiff took steps to immediately set aside the Registrar’s dismissal Order. He sought the parties’ consent to an order setting aside the dismissal almost immediately and brought this motion within approximately one month.

(c) Prejudice

20The main factor to consider is the prejudice alleged by the CBSA and the AG as a result of the Plaintiff’s diagnosis of dementia and her inability to be examined. The Plaintiff claims that as a result of the alleged improper conduct by the Defendants, she suffered extreme emotional and mental distress. The AG and CBSA state that they cannot test this allegation unless they can examine the Plaintiff, which cannot now happen.

21I have no doubt that the inability of the Plaintiff to be examined on her emotional and mental suffering could cause prejudice to the Defendants. However, it would be more prejudicial to the Plaintiff if she was unable to proceed on the remainder of her action if the action was dismissed. The Plaintiff’s claim to have suffered mental suffering is but one part of the whole action. Viewed in the context of the entire action, the inability to examine the Plaintiff is not so prejudicial that it is fatal to the CBSA and AG’s ability to defend the entirety of the action. If anything, it makes it more difficult for the Plaintiff to prove damages for mental suffering.

22Further, as stated in MDM, the prejudice that I must consider is the prejudice to the defendant’s ability to defend the action that arises from steps taken following the dismissal, or which would result from restoration of the action following the registrar’s dismissal.

23No steps have been taken since the dismissal that would prejudice the Defendants’ ability to defend the action. The diagnosis of dementia was made prior to the dismissal.

24With respect to prejudice that would result from the restoration of the action, I see none either. The CBSA has indicated that the limitation period has expired and that the Plaintiff’s claim is statute-barred as against it. Nothing prevents the CBSA from maintaining this defence when the action is restored.

Conclusion

25Accordingly, I make the following orders:

a) The Registrar’s Order of May 21, 2019, dismissing the within action for delay is set aside;

b) The Discovery Plan found at Exhibit H of the Affidavit of Debbie James, sworn June 24, 2019, will be binding on the parties, except as follows:

1. In paragraph 4, the deadline for the delivery of Affidavit of Documents shall be extended to January 31, 2020;

2. In paragraph 5, the deadline for the production of paper records and the exchange of electronic records shall be extended to January 31, 2020; and

3. In paragraph 6, all examinations for discovery are to be completed on or before June 30, 2020.

c) This action shall be set down for trial on or before November 30, 2020;

d) The parties are encouraged to resolve the issue of costs themselves. If they are unable to do so, the Plaintiff shall serve and file her written submissions, restricted to two pages, single sided and double-spaced, exclusive of a costs outline and offers to settle, no later than 4:30 p.m. on December 2, 2019. The AG and CBSA shall serve and file their responding submissions, with the same restrictions, no later than 4:30 p.m. on December 16, 2019. Any reply submissions by the Plaintiff shall be served and filed no later than 4:30 p.m. on December 21, 2019.

Fowler Byrne J.