Court File and Parties

COURT FILE NO.: CV-16-548373 RELEASED: 2020/03/12 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Darren Levant v. Gilbert Studios Limited, Nina Gilbert, also known as Nina Levant, executrix of the estate of Albert Gilbert and Nina Gilbert, also known as Nina Levant, executrix of the estate of Gail Gilbert also known as Gail Goldie Gilbert

BEFORE: Master Graham HEARD: February 27, 2020

APPEARANCES: Allison Farley for the plaintiff Maxwell Reedijk for the defendants (moving parties)

Reasons for Decision

(Defendants’ motion to dismiss action for delay)

1The plaintiff Darren Levant alleges that for many years, he worked for minimal monetary compensation at Gilbert Studios Limited (“Gilbert Studios”), a photography studio owned by his grandfather Albert Gilbert. He claims that, in compensation for his work, Albert Gilbert promised that he would be given both the studio property at 170 Davenport Road, Toronto (“170 Davenport Road”), and the business operated by Gilbert Studios. He seeks relief on the basis that his now deceased grandparents, Albert Gilbert and Gail Gilbert, held 170 Davenport Road in trust for him and that he is entitled to a 100% interest in the defendant corporation Gilbert Studios Limited. On September 20, 2019, subsequent to the deaths of Gail Gilbert in January, 2018 and Albert Gilbert in January, 2019, Kimmel J. ordered that the action be continued against their daughter and the plaintiff’s mother Nina Gilbert, also known as Nina Levant, as executrix of both estates.

2The defendants now move to dismiss the plaintiff’s action under rule 24.01(1)© on the basis that the plaintiff has failed to set the action down for trial within six months of the close of pleadings. Rule 24.01(1)© states:

24.01(1) A defendant who is not in default under these rules or an order of the court may move to have an action dismissed for delay where the plaintiff has failed, . . .

© to set the action down for trial within six months after the close of pleadings;

3The statement of claim was issued on March 9, 2016 and the statement of defence delivered on April 25, 2016. Pursuant to rule 25.05(a), pleadings have been closed since May 5, 2016, well over three years before the service of the notice of motion on October 18, 2019.

4For these Reasons, the defendants’ motion succeeds and the action is dismissed.

5The history of the action is:

• March 9, 2016: Statement of claim issued.
• April 25, 2016: Statement of defence delivered.
• July 8, 2016: Defendants’ counsel spoke with plaintiff’s counsel and confirmed in writing the importance of proceeding with examinations for discovery “as soon as possible, given Mr. Gilbert’s health and age.”
• August 15, 2016: Examination for discovery held of the defendant Albert Gilbert.
• September 12, 2016: Examination for discovery held of the plaintiff.
• January 13, 2018: Gail Gilbert dies at age 93.
• January, 2019: Albert Gilbert dies at age 96.
• February, 2019: The plaintiff learns of Albert Gilbert’s death.
• March 14, 2019: Plaintiff’s counsel writes to the defendants’ counsel with respect to obtaining an order to continue the action.
• September 20, 2019: Plaintiff’s counsel obtains an order to continue from Justice Kimmel.

6The test on a motion to dismiss for delay under rule 24.01 was stated by the Court of Appeal in Langenecker v. Sauvé, 2011 ONCA 803, and reiterated in Wang v. Wu, 2019 ONSC 3736 (at para. 15):

15 . . . [T]here are two situations in which a court should dismiss a claim for delay: (i) the delay is caused by the intentional conduct of the plaintiff or its counsel that demonstrates a disdain or disrespect for the court process; or (ii) the delay must be inordinate, inexcusable and such that it gives rise to a substantial risk that a fair trial of the issues in litigation will not be possible because of the delay.

7Counsel for the defendants does not allege “intentional conduct of the plaintiff or its counsel that demonstrates a disdain or disrespect for the court process”. Rather, the defendants rely on the second test established in Langenecker, and accordingly, the issues on the motion are:

1. Is there an inordinate delay?
2. Is there a reasonable explanation that would excuse the delay?
3. As a result of any inordinate and inexcusable delay, is there a substantial risk that a fair trial will not be possible?

1. Is there an inordinate delay?

8There was no activity whatsoever in the action for the 2.5 years between the plaintiff’s examination for discovery on September 12, 2016 and plaintiff’s counsel’s letter to defendants’ counsel on March 14, 2019, following the death of Albert Gilbert. Between March, 2019 and September, 2019, plaintiff’s counsel was occupied with obtaining the required order to continue ultimately granted by Kimmel J..

9The plaintiff relies on DeMarco v. Mascitelli, [2001] O.J. No. 3582 in which there was a delay of 3.5 years between the plaintiffs’ response to a request to admit (September, 1997) and the next correspondence from the plaintiff (February, 2001). None of the plaintiffs had served an affidavit of documents, and although discoveries had been arranged at an earlier point, they had never proceeded. The defendants argued that the delay of 3.5 years was sufficient for the court to infer that “there must be prejudice to a fair trial”. On the issue of the length of the delay, LaForme J. (as he then was) stated (at paragraphs 28 and 29):

28 In my judgment, the Defendants in the within case have established that there has been a delay that is longer than one would ordinarily hope. Although the Plaintiffs herein did not strenuously argue the point, I believe the delay, in the circumstances of this case is really borderline. It is no doubt longer than it should have been but it is not so long as to immediately assume that it must be prejudicial to a fair trial. Indeed, I was not presented with any evidence that suggests that evidence for trial has been lost, forgotten or that there is any other impediment to the delivery of the relevant evidence at trial (subject to what I will say below).

29 This is not a proper case where the length of the delay by itself will give rise to a presumption that there is a substantial risk to a fair trial.

10The plaintiff submits that, because LaForme J. did not dismiss the plaintiffs’ claim in DeMarco, despite an unexplained delay of 3.5 years, a delay of 2.5 years should not be found to be inordinate. However, LaForme J. did not actually say that 3.5 years was not an inordinate delay. To the contrary, he said that a 3.5 year delay “is no doubt longer than it should have been”, which is essentially saying that it was inordinate. To summarize, LaForme J. accepted that 3.5 years is an inordinate period of delay but did not accept that that delay was sufficient to create a presumption of prejudice to a fair trial in the case before him.

11The issue is whether the 2.5 year delay in this case is inordinate. By suing the defendants, the plaintiff put them to the expense and inconvenience of defending the action, and if he truly wishes to assert what he presumably believes is a meritorious claim, he must be reasonably diligent in advancing it towards a resolution. Absent a reasonable explanation, an entire year of complete inactivity by a plaintiff is excessive and 2.5 years is significantly more so. The plaintiff’s 2.5 year delay in this case, although a year less than the delay in DeMarco, is still inordinate.

2. Is there a reasonable explanation that would excuse the delay?

12Plaintiff’s counsel acknowledges that she can offer no explanation for the 2.5 year delay between the examinations for discovery in August and September, 2016 and her correspondence of March 14, 2019 seeking the information necessary to obtain an order to continue the action. The inordinate delay of 2.5 years is therefore unexcused.

3. As a result of any inordinate and inexcusable delay, is there a substantial risk that a fair trial will not be possible?

13The defendants allege actual prejudice arising from the death of the defendant Albert Gilbert, whose estate is now represented by his daughter Nina. As stated above, Albert Gilbert died in January, 2019 at the age of 96. There are two components to the issue: first, whether the death of Albert Gilbert has compromised the defendants’ ability to defend the action, and second, whether any prejudice arising from his death resulted from the period of inordinate and inexcusable delay.

14The plaintiff has affirmed in his affidavit of November 12, 2019 that his grandmother Gail Gilbert suffered a stroke in 2007 as a result of which she would not have been able to give evidence in this action. The defendants do not take issue with the plaintiff’s assertion that, at the time this action was commenced, Gail Gilbert was already incapacitated from giving evidence, and accordingly, any prejudice arising from her death could not have resulted from any delay in the action.

15In his statement of claim, the plaintiff alleges:

• that he worked at Gilbert Studios with his grandfather Albert Gilbert until June or July of 2014.
• that Albert Gilbert “groomed the Plaintiff from a young age to be his heir apparent of the business . . .”.
• that for many years, he functioned as the operator of Gilbert Studios and that Albert Gilbert passed off the plaintiff’s work as his own.
• that “in consideration of the years of hard work for his grandfather and the promises of his grandfather that he was to be given the studio Property and business known as Gilbert Studios, he worked his entire working life at a minimal salary or no salary sometimes.” The plaintiff accepted this state of affairs “given the promise that he would be transferred the [170 Davenport Road] Property and the business.”
• that in 2009, his mother, the deceased defendants’ executrix Nina Gilbert, from whom he was estranged for much of his life, “created a massive divide in the longstanding relationship between the Plaintiff and Albert.”
• that he is entitled to claim “a constructive or resulting transfer [sic] of the Property and shares of Gilbert Studios in his favour”.

16Essentially, the plaintiff claims that his now deceased grandfather Albert Gilbert promised that he would be given the property at 170 Davenport Road and the Gilbert Studios photography business in exchange for his years of work in the business. The defendants submit that, given that the plaintiff bases his claims on “the promises of his grandfather”, the death of Albert Gilbert deprives them of the opportunity to challenge the plaintiff’s allegations as to what Albert Gilbert told him.

17At his cross-examination on his affidavits delivered for this motion and for his own motion for a status hearing in the related action no. CV-14-507619, the plaintiff Darren Levant acknowledged as follows (at Q. 42):

42 Q. And that’s the same thing with respect to the 2016, the property referred to in the 2016 action, the Davenport. There’s no physical document/letter/email/note, anything from either of your grandparents, referring to you owning or having an interest in either the studio or the business of the studio, correct? A. Correct.

18The plaintiff’s evidence with respect to his claim for an ownership interest in both the Davenport Road property and Gilbert Studios is therefore based exclusively on oral rather than written evidence.

19Albert Gilbert was examined for discovery on August 15, 2016, at which time he was questioned about whether he promised Darren Levant that he would give him the photography business. His evidence on that occasion included the following (at Qs. 203-204):

203 Q. . . .Now, Darren says that you always promised him that he would have the studio when you weren’t going to use it.

A. Yes, obviously illusions.

204 Q. Illusions?

A. I never promised him a thing.

20The plaintiff submits that at his examination for discovery held September 12, 2016, he provided names of other witnesses who could provide evidence with respect to representations made by Albert Gilbert to the plaintiff with respect to Gilbert Studios. These witnesses include the plaintiff’s mother Nina Gilbert/Levant, his uncle Michael, his sister Wendy, his ex-wife Dana, and two former studio employees, Kenny and Randy.

21On reviewing the transcript of the plaintiff’s examination, the plaintiff’s evidence was that there were “possibly” witnesses to his conversations with his grandfather. He testified that his uncle Michael was a witness, as was his mother, “but they would never tell the truth about that”. He further testified that his ex-wife Dana, his sister Wendy, and the former employees Kenny and Randy “possibly could have” overheard such conversations.

22The plaintiff has stated that his uncle Michael and his mother Nina Gilbert/Levant would not be truthful witnesses, and that the other individuals were only “possibly” witnesses to any relevant conversations. These admissions, along with the absence of any specific evidence of what any of these people would say about conversations that they may or may not have overheard, mean that the disclosure of these witnesses does nothing to alleviate any prejudice arising from Albert Gilbert’s death. In fact, the plaintiff’s suggestion that at least some of the witnesses could corroborate his own evidence as to what his grandfather promised him would more likely increase the possible prejudice to the defendants because Albert Gilbert is no longer alive to respond to those witnesses’ evidence.

23In support of his claim for the property at 170 Davenport Road and the Gilbert Studios Limited business, the plaintiff acknowledges a complete lack of documentary proof and relies almost exclusively on his own allegation of oral promises made by his now deceased grandfather, which Albert Gilbert denied at his examination for discovery. None of the possible witnesses could have been present during every conversation between the plaintiff and Albert Gilbert, and in any event, the plaintiff apparently relies on at least some of them to give evidence in his favour. Accordingly, Albert Gilbert’s presence at trial would be crucial to the defence of the action, because only he could confirm or deny any evidence given by the plaintiff or witnesses with respect to what he is alleged to have promised. His death therefore prejudices the defendants’ ability to defend the action and creates “a substantial risk that a fair trial will not be possible”.

24The second component of the prejudice issue is whether the prejudice arising from Albert Gilbert’s death resulted from the period of inordinate and inexcusable delay.

25The plaintiff does not dispute that, following the examinations for discovery in August and September, 2016, the only remaining steps in the action before it could be set down for trial, were for the parties to answer a few undertakings, and mandatory mediation. The defendants submit that, but for the plaintiff’s delay, this action could have been set down for trial in late 2016 or early 2017, and could have been tried well before Albert Gilbert’s death in January, 2019. Plaintiff’s counsel did not take issue with this timing, either in her factum or in oral argument.

26The plaintiff relies on Housser v. Savin Canada Inc., [2005] O.J. No. 4217 (S.C.J.) in which Quinn J. held (at para. 22) that, although a plaintiff has the responsibility of moving the case to trial “with reasonable dispatch . . . yet, a defendant is not entirely free of a similar responsibility.” Quinn J. (at Housser, para. 25) relied on the following statement from Albrecht v. Meridian Building Group Ltd., [1988] O.J. No. 901 (Div. Ct.):

25 . . . If the defendant does what he can do to keep the action moving on towards trial and the plaintiff delays him, the court can be asked for assistance. But a defendant who just sits idly by waiting for time to pass and does nothing to move the action on to completion is hard put to complain that he did not want the action hanging over his head.

27The problem with the plaintiff’s submission is that he is essentially saying “I know that it was my responsibility to move the action forward and I did nothing in that regard for 2.5 years, but the defendants should have reminded me or even pressured me to do what I was obliged to do on my own initiative.” The defendants in this case are not merely “complaining that they did not want the action hanging over their heads” (to paraphrase Housser). Rather, they are advancing the legitimate concern that their ability to defend the action has been compromised by the death of Albert Gilbert during the inordinate and unexcused delay for which the defendants are responsible.

28As stated above, the plaintiff did not dispute the defendants’ submission that, if he had acted promptly following the completion of examinations for discovery in September, 2016, the action could have been tried well before Albert Gilbert’s death in January, 2019. I accept that this is a plausible scenario, on the basis that an action set down for trial in Toronto in early 2017 could have been scheduled for a trial of less than 10 days likely by the end of 2017 and certainly by the spring of 2018. I therefore accept that the substantial risk to the defendants that a fair trial will not be possible resulted from the plaintiff’s inordinate and inexcusable delay.

Summary and Decision

29The plaintiff acknowledged that there was no explanation that would excuse the 2.5 years of delay, and did not dispute that, if he had acted diligently, the action could have been tried while Albert Gilbert was still alive. The plaintiff’s arguments on this motion are that 2.5 years of delay do not constitute inordinate delay and that the death of Albert Gilbert did not create a substantial risk that a fair trial was no longer possible. I disagree. To summarize my conclusions on these issues, a delay of 2.5 years resulting from the plaintiff’s complete lack of activity is inordinate and the death of Albert Gilbert means that the defendants can no longer respond at trial to evidence from the plaintiff or any witnesses regarding any promises made by Albert Gilbert to the plaintiff regarding the transfer of 170 Davenport Road and Gilbert Studios. The defendants have therefore satisfied the applicable test and the action is hereby dismissed.

30Costs: At the conclusion of the hearing, both counsel filed costs outlines for this motion and for the plaintiff’s motion for a status hearing, which were both argued on the same day. If the parties cannot agree on the disposition of costs, they shall make written submissions, not to exceed three pages each, the defendants within 20 days and the plaintiff within 20 days thereafter. If the parties do agree on costs, counsel for the defendants shall inform the court forthwith.