Court File and Parties

COURT FILE NO.: CV-08-366878 DATE: 20191206 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: KELLY RAINVILLE, Applicant AND: IRVIN SCHEIN and MINDEN GROSS LLP, Respondents

BEFORE: Kimmel J.

COUNSEL: Samantha Schreiber, for the Respondents/Moving Parties Kelly Rainville, Applicant/Responding Party, Self-represented

HEARD: December 2, 2019

Endorsement

[1] The Respondents received a notice of hearing for an assessment of their accounts in January of 2019 for an assessment hearing scheduled for May 27, 2019, more than eight years after the assessment hearing had last been adjourned in February of 2011 on consent sine die. They move for the dismissal of this assessment proceeding for delay.

Procedural History

[2] This assessment proceeding relates to accounts rendered by the Respondents and paid by the Applicant for work done by the Respondents between 2006 and 2008 while representing the Applicant in an action relating to a condominium that she had purchased. The Applicant commenced the assessment in 2008 after she changed lawyers and while the condominium action was ongoing.

[3] The assessment hearing was adjourned four times between 2009 and 2011. The last adjournment of the assessment hearing in February of 2011 was agreed to because the Applicant had commenced an action against the Respondents (and lawyers at other firms who had also represented her in the condominium action) in 2010 for negligence in connection with the work done that was reflected in the accounts being assessed, and that action was itself on hold awaiting the outcome of the trial in the condominium action. The consent to the adjournment of the assessment hearing specified that it was “sine die to a date to be fixed on the request of either party.”

[4] The condominium action had been set down for a 50-day trial, which eventually proceeded in 2011 for 42 days. The appeal of that trial decision was in 2014. The Applicant appears to have had some measure of success in the condominium action and some further success on the appeal. The negligence action by the Applicant was eventually administratively dismissed in 2013 as against the Respondents.

The Positions of the Parties on this Motion

[5] After receiving the notice of the assessment hearing in January of 2019, and upon turning their attention to it, the Respondents decided to bring this motion to dismiss this assessment proceeding for delay. The assessment was thus adjourned pending the outcome of this motion. The motion was booked in August of 2019. The motion record was served in early November 2019. They emphasize the delay and concerns about the ability for the assessment to be fairly adjudicated on its merits, given the significant time that has elapsed since the events relevant to the assessment for work done by Mr. Schein and his former associate Mr. Rainsberry between 2006 and 2008 and the natural fading of their memories.

[6] The responding record was served on November 26, 2019, the week before the motion. Ms. Rainville offers various explanations and excuses in her responding materials on this motion for the periods of delay in the pursuit of her assessment of the Respondents’ accounts, such as:

a. 2009-2011 – adjournments requested by the Respondents or imposed by the assessment office; b. 2011-2014 – the pending condominium action and appeal; c. 2011-2016 [1] – the pending negligence action; d. 2011-2015 – Applicant’s cognitive and other medical issues arising from three motor vehicle accidents, two that took place in the summer of 2011 and one that took place in 2013; e. March of 2015-September of 2017 – Applicant’s ongoing efforts to locate the assessment file with the assessment office and eventual replacement of the lost files in September of 2017; [2] and f. February of 2018-January of 2019 – Applicant’s mistaken understanding that the assessment office had sent the February 6, 2018 notice of appointment for hearing to the Respondents.

The Law

[7] The applicable law is summarized by the Respondents/Moving Parties and is not challenged by the Applicant:

a. The court has discretion to dismiss an assessment for delay from its inherent jurisdiction to control its own process, on the basis that a lengthy and unexplained delay can constitute an abuse of process. See Linett v. Aird & Berlis LLP, 2018 ONSC 2144, 290 A.C.W.S. (3d) 866, at para. 22. b. The same criteria applied to a determination of whether to dismiss an action for delay pursuant to Rule 24.01 apply to the determination of whether to dismiss an assessment for delay. See Langenecker v. Sauve, 2011 ONCA 803, 286 O.A.C. 268, at paras. 5-11 and Linett, at paras. 23-49 (focus on 22-24). c. These authorities establish that an assessment may be dismissed for delay where: i. The delay is inordinate, measured from the commencement of the proceeding; ii. The delay is inexcusable (e.g., without adequate explanation); and iii. The delay must give rise to substantial risk that a fair trial of the issues will not be possible.

Analysis

(i) Is the Length of Delay Inordinate?

[8] The length of time from the commencement of the assessment in 2008 to this motion is inordinate on any objective measure. It is inordinate for any proceeding to be outstanding for that long (approximately eleven years) with little or no activity. Presumptively, civil actions are now dismissed for delay after five years if they have not been set down for trial (under Rule 48.14 of the Rules of Civil Procedure [3]). The court found a delay in an assessment proceeding of five years and eight months to be inordinate in Linett (at paras. 27 and 32).

(ii) Can there be a Fair Trial of the Assessment?

[9] This extent of delay leads to a presumption that there is a substantial risk that a fair trial of the issues will not be possible as memories naturally fade and fail, and documents may be lost. See Tanguay v. Brouse, 2010 ONCA 73, 184 A.C.W.S. (3d) 975, at para. 2 and Linett, at para. 45. The presumption in this case is bolstered by the evidence of Mr. Schein to that same effect, raising concerns about faded memories regarding events that occurred more than thirteen years ago concerning work done on a file that was transferred to the Applicant’s new lawyer in 2008, the bulk of which was done by an associate who left the firm in 2007 even before the file was transferred.

[10] The Applicant responds to this and seeks to rebut the presumption on the basis that the Respondents have known about this assessment since 2008 when their memories would still have been fresh and knew that it could be brought back on by either party when it was adjourned in 2011, so it was incumbent upon them to preserve the evidence and their recollections. She also points out that materials were filed on the assessment back in 2009 and that those materials, as well as the dockets in the solicitors’ accounts, can be used to refresh the lawyers’ recollections. She has retained her copies of these materials, as well as other materials from the lawyers’ files, and offered during the hearing of the motion to make copies for the Respondents of the materials that she has retained that came from the lawyers’ files (at the Respondents’ cost).

[11] Although this would have been a hard call if it was the deciding factor in this case, I am inclined to agree with the Applicant. While there may be work involved and that may have cost consequences if the Applicant is ultimately not successful, using the existing records and dockets and materials already filed the Respondents should be able to sufficiently refresh their recollections to give evidence at the assessment hearing. That should not compromise the fairness of the hearing, as might have been the situation if critical witnesses were no longer available.

(iii) Is the Applicant’s Delay Inexcusable?

[12] This requirement that the delay be inexcusable involves a multi-layered assessment. The delay not only must be supported with reasons, but the reasons provided must be assessed by the court to determine whether they afford an adequate explanation for the delay. See Linett, at para. 33. Only explanations that are reasonable and cogent or sensible and persuasive will be sufficient to excuse the delay and avoid an order of dismissal. See Langenecker, at para. 9. The assessment of the explanations offered will not only require consideration of the credibility of the explanations offered for the individual parts of the delay, but also the overall delay and explanations as a whole. See Langenecker, at para. 10.

[13] The reasons provided by the Applicant for each period of the delay are summarized according to the blocks of time to which they pertain in paragraph 6 above, some of which overlap.

[14] The initial period of delay from 2008 to 2011 is accounted for by adjournments requested by the Respondents or imposed by the assessment office. The Applicant’s explanation for this period of delay is reasonable, cogent, and credible.

[15] The agreement of the parties to adjourn the assessment sine die in February of 2011 when the condominium action and the negligence action remained to be decided accounts for the period of delay from 2011 until December of 2014 when the condominium action appeal was decided, the negligence action having been administratively dismissed in the interim. [4] It is reasonable that the assessment be put on hold pending the outcome of those other proceedings and thus reasonable that the Applicant would not have been actively pursuing the assessment in this timeframe. The Applicant also provided some evidence of a general nature from medical practitioners dated in 2015 describing various cognitive impairments and disabilities that she was facing at that time, and which she says began with injuries from the 2011 and 2013 motor vehicle accidents that she was involved in. This evidence is challenged by the Respondents as insufficient. The Applicant maintains that these conditions prevented her from active participation in the ongoing condominium and negligence actions. Given my finding that it was reasonable to put the assessment proceeding on hold while those other actions were ongoing, the Applicant’s ability to actively engage in those proceedings — or the assessment proceeding — during that timeframe is not directly relevant.

[16] The issue in this case comes down to whether the period of delay from 2015 to September of 2017 during which the Applicant claims to have been trying to work with the assessment office to locate the files (and then eventually replaced the files in 2017, which led to the notice of hearing being issued in February of 2018) is inexcusable. The Applicant was communicating with the assessment office during this period. That she potentially could have done more does not, itself, render the delay inexcusable, especially in the circumstances of this case where part of the blame for the delay is due to the loss of the files by the assessment office. I find that this period of delay has been adequately explained and that the explanation is reasonable, cogent and credible in the circumstances.

[17] Once the assessment file was reconstituted, the delay after that in issuing the notice of hearing (in February of 2018) for hearing dates over a year later (in May of 2019) is part of the normal course delay at the assessment office. The adjournment of the May 2019 hearing dates at the request of the Respondents in anticipation of this motion is not a period of delay for which the Applicant must account.

[18] The Applicant has accounted for each of the individual parts of the delay that she must account for and has provided reasonable, cogent and credible explanations for the overall delay. Considering her explanations individually and overall, I am satisfied that the delay has been adequately explained and thus is not inexcusable.

Disposition and Costs

[19] For the foregoing reasons, this motion is dismissed. I have rendered this endorsement quickly so that my decision is not cause for any further delay of this assessment proceeding. It is incumbent upon the Applicant to now move diligently and expeditiously to get the matter back on a list for hearing with the assessment office. Any failure on her part to do so will not be looked favourably upon by the court if the matter continues to languish and does not get on for a hearing on the earliest possible date that the parties are available. To the extent that it might assist in any way, I am directing that this matter be scheduled by the assessment office as quickly as possible.

[20] I find that it was reasonable for the Respondents to bring this motion when they were first presented with the prospect of having to attend an assessment hearing after so many years of inactivity and without the benefit of the explanations that the Applicant has now provided in response to this motion, which they only received the week before it was to be heard. In the exercise of my discretion under s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.42, and Rule 57, and having regard to the fact that the Applicant did not have legal counsel and the principle of indemnity is not engaged, there shall be no costs of this motion.

Kimmel J. Date: December 6, 2019

[1] The negligence action was administratively dismissed in 2013 but the Applicant says she only learned of this in the summer of 2016. [2] The Applicant had to again replace the second lost assessment file with the assessment office in May of 2019. [3] R.R.O. 1990, Reg. 194. [4] Although the Applicant says she did not learn of the dismissal of the negligence action until 2016 that does not appear to have been a material factor in the explanation for the delay since, according to her evidence, she attempted to re-activate the assessment in 2015.