Court File and Parties
COURT FILE NO.: CV-14-00504441 MOTION HEARD: 2019-11-22 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Omar Farooq Kalair, Plaintiff AND: The Globe and Mail Inc., Defendant
BEFORE: Master B. McAfee
COUNSEL: Y. Baykara, Counsel for the Plaintiff T. Park, Counsel for the Defendant
HEARD: November 22, 2019
Reasons for Decision
Nature of the Motion
[1] The plaintiff brings this motion pursuant to Rule 37.14(1)(c) of the Rules of Civil Procedure for an order setting aside the order of the Registrar dismissing the action for delay dated May 24, 2019.
[2] The defendant opposes the motion.
The Test
[3] The court will apply a contextual approach and consider all relevant factors in determining whether it is just to set aside the dismissal order in the circumstances of the particular case (Prescott v Barbon, 2018 ONCA 504 (Ont. C.A.) at paras. 13-15, Jadid v. Toronto Transit Commission, 2016 ONCA 936 (Ont. C.A.) at paras. 9-12, H.B. Fuller Company v. Rogers, 2015 ONCA 173 (Ont. C.A.) at paras 20-27, Marché d’Alimentation Denis Thériault Ltée. v. Giant Tiger Stores Ltd., 2007 ONCA 695 (Ont. C.A.) at paras. 12, 20-21).
[4] In determining whether the order of the Registrar ought to be set aside, I am mindful of the tension between two principles of our civil justice system: the preference to have civil actions decided on their merits and the promotion of the timely resolution of actions (H.B. Fuller at paras. 25-27).
[5] In making this determination, I am also mindful of the importance of finality of litigation (Marché at paras. 37-38).
[6] I am also mindful of the provisions of rule 1.04(1) of the Rules of Civil Procedure:
These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.
[7] Having regard to the above principles and the relevant factors, I am satisfied that it is in the interests of justice that I exercise my discretion to set aside the dismissal order.
Explanation of the Litigation Delay
[8] In this action the plaintiff seeks damages of $1.1 million and an injunction against the defendant. The plaintiff alleges that a newspaper article dated February 19, 2014, defamed him. The newspaper article concerns charges laid on or about February 19, 2014, by the Royal Canadian Mounted Police against the plaintiff.
[9] After the article was published, the plaintiff initially retained a lawyer who, according to the plaintiff’s evidence, communicated with the defendant approximately twenty times and served a libel notice.
[10] The plaintiff subsequently represented himself and a statement of claim was issued on May 16, 2014. The statement of claim was served on or about November 10, 2014.
[11] The defendant served a notice of intent to defend on or about November 24, 2014.
[12] On or about November 30, 2014, the plaintiff wrote to defendant’s counsel by email to advise of his new address.
[13] On or about December 10, 2014, the statement of defence was served by courier.
[14] On or about December 12, 2014, the plaintiff wrote to defendant’s counsel by email to confirm that future correspondence should be sent to his new address.
[15] On or about December 12, 2014, defendant’s counsel confirmed by email that they sent a copy of the statement of defence by courier to his new address and attached a copy of the statement of defence to the email.
[16] The email exchange of December 12, 2014 was the last communication from the plaintiff and from the defendant until after the action was dismissed by the Registrar. No steps were taken to advance the action beyond the delivery of pleadings.
[17] On this motion the plaintiff filed two affidavits in his own name. It is the plaintiff’s evidence that during the last few years the criminal matter was his priority. The criminal proceedings required a large number of pre-trial steps and court appearance over a period of approximately four years, including a Rowbotham application and a two week preliminary hearing in 2015. The criminal trial was scheduled to proceed in January 2017, and then in November 2017, but was delayed due to lawyers’ schedules. The trial then proceeded over twenty-one days commencing on October 18, 2018. Following the completion of evidence, the criminal matter was then put over for written submissions and transcripts were obtained. Lengthy reasons for decision were released on June 7, 2019. The plaintiff was acquitted on all charges.
[18] The plaintiff’s evidence is that a lawyer advised him that because he was facing serious criminal charges, he would be tainted in court until there was an acquittal.
[19] In addition to the criminal proceedings, the plaintiff explains that the delay is also due in part to his father’s illness and being a joint caregiver for his father. His father passed away on June 12, 2019. The plaintiff’s daughter also had health issues that were diagnosed in November 2018 and necessitated several attendances at the Hospital for Sick Children.
[20] The plaintiff’s evidence is that the delay is also due in part to family court proceedings, civil litigation with Central 1 Credit Union, and proceedings before the Human Rights Tribunal of Ontario.
[21] The plaintiff deposes that he always intended to prosecute this action.
[22] While it may have been prudent to prioritize the criminal proceedings, it was not acceptable for the plaintiff to simply let the action sit and not do anything. The plaintiff could have attempted to reach an understanding with the defendant that this action would be held in abeyance until the criminal matter was dealt with. It was not reasonable for the plaintiff not to initiate any contact with the defendant after the delivery of pleadings.
[23] Although an explanation for the delay has been provided by the plaintiff, the explanation is not acceptable in all of the circumstances.
[24] I am not satisfied that the litigation delay has been adequately explained.
Inadvertence in Missing the Deadline
[25] There is no evidence specifically addressing the reason for missing the deadline. In oral submissions, plaintiff’s counsel advised that the explanation provided for the delay, and the prioritizing of the criminal matter in particular, also explains the reason for missing the deadline. Counsel advises that the Judge’s decision from the criminal trial was under reserve at the time of the deadline to set the action down for trial.
[26] Even reading the plaintiff’s affidavits generously, the evidence does not satisfy me that the deadline was missed as a result of inadvertence.
Motion Brought Promptly
[27] The defendant agrees that this factor has been satisfied.
No Prejudice
[28] I am satisfied that, to the extent there is a presumption of prejudice, the presumption has been rebutted.
[29] Given the nature of this action, the case will be heavily reliant on documents. The recent decision of the trial Judge in the criminal proceedings is before me. That decision references transcripts having been obtained and bankers boxes of documents having been delivered by the plaintiff (see paras 4 and 337).
[30] No actual prejudice is alleged by the defendant. There is no evidence that suggests that documents have been lost or witnesses have died.
[31] The defendant’s failure to take any steps other than delivery of a defence is also inconsistent with a finding of prejudice.
[32] I am satisfied that there is no significant prejudice to the defendant in presenting their case at trial as a result of the delay.
[33] This is not a case where a significant period of time elapsed between the dismissal order and the motion to set aside the dismissal order. The principle of finality does not prevail in all of the circumstances of this proceeding.
[34] Even though I have determined that two of the four Reid factors have not been satisfied, I am satisfied that in all of the circumstances of this matter, taken in context, it is just to set aside the dismissal order.
[35] For these reasons, the Registrar’s dismissal order shall be set aside.
Timetabling
[36] After argument concluded, I advised the parties that the decision would be reserved. I then proceeded to hear submissions on timetabling in the event that the motion was granted. The following timetable is ordered:
i. A discovery plan shall be agreed to within 60 days of today’s date; ii. Affidavits of documents shall be served within 120 days of today’s date; iii. Examinations for discovery shall take place within 120 days after the deadline for service of affidavits of documents; iv. Mandatory mediation shall take place within 90 days of the completion of examinations for discovery and any motions arising therefrom; v. The deadline to set the action down for trial is extended to February 16, 2021.
Other Issues
[37] The parties agree that the reference in the Registrar’s dismissal order to Women’s College Hospital (WCH) as a defendant is an error. WCH was never a party to this proceeding. I would ask the court office to revise the data entry of the listing of the parties to this action by removing the reference to WCH as a defendant in this proceeding.
Costs
[38] I agree with the defendant that the defendant is entitled to costs. Although the plaintiff was successful on this motion, the plaintiff is being granted an indulgence. However, the amount sought is high and an order that costs be payable to the defendant in the cause is more just in all of the circumstances.
[39] In my view, having regard to all of the circumstances of this matter, a fair and reasonable amount that the plaintiff could expect to pay for costs of this motion, including costs of the attendance on October 1, 2019, is the all-inclusive sum of $5,000.00.
[40] Costs of the motion are fixed in the all-inclusive sum of $5,000.00 payable by the plaintiff to the defendant in the cause.
Summary of Order
[41] Order to go as follows:
- The order of the Registrar dismissing the action for delay dated May 24, 2019, is set aside.
- The following timetable is ordered: i. A discovery plan shall be agreed to within 60 days of today’s date; ii. Affidavits of documents shall be served within 120 days of today’s date; iii. Examinations for discovery shall take place within 120 days after the deadline for service of affidavits of documents; iv. Mandatory mediation shall take place within 90 days of completion of examinations for discovery and any motions arising therefrom; v. The deadline to set the action down for trial is extended to February 16, 2021.
- The court office is requested to revise the data entry of the parties to this proceeding by removing Women’s College Hospital as a defendant.
- Costs of this motion are fixed in the all-inclusive amount of $5,000.00 payable by the plaintiff to the defendant in the cause.
Master B. McAfee Date: December 4, 2019