COURT FILE NO.: 12-34556 DATE: 2020-04-07 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

DIAN DOYLE, AARYN DOYLE and AIDEN DOYLE - and – KAITLIN G. BUDGE, THOMAS BUDGE and RONALD GALASSO

Counsel: Adam Huff, Counsel for Dian and Aaryn Doyle on the motion No one appearing for Aiden Doyle Matthew Chomyn, Counsel for Kaitlin and Thomas Budge Evan Kopiak, Counsel for Ronald Galasso

HEARD: January 24, 2020

The Honourable Justice C.D. Braid

REASONS ON MOTION

I. Overview

[1] In 2010, Dian Doyle suffered injuries in two motor vehicle accidents. A Statement of Claim was issued in 2012. On January 16, 2019, the registrar made an order dismissing the action for delay. The plaintiffs, Dian and Aaryn Doyle, move to set aside the dismissal order.

[2] The plaintiffs state that they experienced personal and health issues during the litigation; and that there was confusion amongst the parties regarding undertakings, all of which contributed to the litigation delay. The defendants, however, state that the plaintiffs can provide no reasonable explanation for the litigation delay, and that they have suffered non-compensable prejudice as a result of the delay.

[3] The sole issue to be determined on this motion is whether the court should exercise its discretion to set aside the dismissal order. For the reasons set out below, I set aside the registrar’s order dismissing the action for delay.

II. Procedural History

[4] Dian Doyle is the primary plaintiff. Her daughter Aaryn was a passenger in one of the accidents. Dian Doyle’s ex-husband, Aiden, brought claims under the Family Law Act, R.S.O. 1990, c. F.3. Aiden Doyle has not participated in this action for some time and did not participate in this motion.

[5] In 2010, Dian Doyle suffered injuries in two motor vehicle accidents. Thomas Budge owned the vehicle involved in the first accident, which was being driven by Kaitlin Budge. Ronald Ross Galasso was the owner and operator of the vehicle in the second accident. In these reasons, I shall refer these parties as “the Budges”, “Galasso”, or simply refer to the three defendants collectively as “the defendants”.

[6] The evidence on the motion disclosed the following basic chronology of events related to this litigation:

i. April 27, 2012: Statement of Claim issued. ii. July 18, 2012: Budge Statement of Defence delivered. iii. January 7, 2013: Galasso Statement of Defence delivered. iv. January 11, 2013: Defendants served sworn Affidavits of Documents and were examined for discovery. v. February 1, 2013: Plaintiffs were examined for discovery. vi. July 28, 2014: Registrar issued a Status Notice, under the former Rule 48.14, which required that the action be set down within two years of the commencement of the claim. vii. October 17, 2014: In response to the status notice being issued, plaintiffs’ counsel filed the trial record. viii. December 2014: Plaintiffs’ counsel served a Notice of Assignment Court on the defendants. ix. June 15, 2015: Galasso’s counsel wrote to plaintiffs’ counsel regarding undertakings. She stated that she would not consent to setting the matter down for trial because it could bar future motions. x. August 19, 2015: Plaintiffs’ counsel attended assignment court. On consent, the matter was removed from the trial list. xi. November 7, 2016: Galasso brought an undertakings motion. xii. January 19, 2017: Goodman J. issued a consent order which included a litigation timetable. The timetable required that the plaintiffs answer undertakings within 90 days, that any undertaking motions be completed by June 1, 2017, and that the action be set down for trial by August 2017. xiii. March 9, 2017: Budges’ counsel stated that he had scheduled an independent medical examination of Dian Doyle. It appears that this examination never took place. xiv. March 31, 2017: Plaintiffs’ counsel wrote to defendants’ counsel, outlining the status of plaintiff undertakings. He asked defence counsel to advise if further information was required, as his clients wished to move the matter forward as per the timetable. xv. April 13, 2017: Plaintiffs’ counsel wrote to a law firm in St. Catharines to ask which counsel was representing Aiden Doyle (presumably in family proceedings). He received no response. xvi. July 28, 2017: Budge defendants made an offer to settle. There were significant efforts to resolve the action for several months, but the matter did not settle. xvii. January 16, 2018: Budge defendants brought an undertakings motion. A legal assistant swore a responding affidavit in support of the plaintiffs’ position, stating that the action had stalled for a number of reasons that had been unforeseen. She stated that a new trial record was prepared and sent to counsel for the defendants. She also stated that, due to the breakdown in the Doyle marriage and the allegations of domestic assault, plaintiffs’ counsel could no longer represent Mr. Doyle due to a conflict. xviii. February 22, 2018: Plaintiffs’ counsel brought a motion to be removed from the record due to the conflict, and sought an adjournment of the undertakings motion so new counsel could be retained. xix. March 2018: Dian and Aaryn retained new counsel. xx. June 18, 2018: New counsel received the file from prior plaintiffs’ counsel. xxi. August - December 2018: Plaintiffs’ new counsel produced numerous records to counsel for defendants. xxii. January 16, 2019: Dismissal Order was issued. It was received by plaintiffs’ counsel a few days later. xxiii. March 6, 2019: Plaintiffs’ counsel commenced this motion to set aside the Dismissal Order, which was originally returnable April 30, 2019. The motion was adjourned on consent to permit LawPro counsel to investigate. The matter was on a long motions list in December but did not get reached.

III. Analysis

Should the Court Exercise Its Discretion to Set Aside the Dismissal Order?

[7] Rule 37.14 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, authorizes the court to set aside a registrar's order on such terms as are just.

[8] In exercising its discretion on a motion to dismiss an action for delay, a court must balance the plaintiff's interest in having a hearing on the merits with the defendant's interest in having the matter resolved in an expedient and time-efficient manner: Faris v. Eftimovski, 2013 ONCA 360, 363 D.L.R. (4th) 111, at para. 24.

[9] The criteria relevant to the court's consideration of a motion to set aside a registrar's dismissal are known as the four Reid factors: Jadid v. Toronto Transit Commission, 2016 ONCA 936, at para. 9, citing Reid v. Dow Corning Corp. (2001), 11 C.P.C. (5th) 80 (S.C.), at para. 41, rev'd on other grounds (2002), 48 C.P.C. (5th) 93 (Div. Ct.). The moving party need not satisfy each factor, but the court must weigh the factors contextually to determine a result that is just:

1. Explanation for 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. The plaintiff must show that steps were taken to advance the litigation toward trial, or if such steps were not taken, to explain why;
2. Inadvertence in Missing the Deadline: The plaintiff must lead satisfactory evidence to explain that they always intended to set the action down for trial within the time limits, but failed to do so through inadvertence, and, as a result, the dismissal order was made;
3. Motion to be brought Promptly: The plaintiff must demonstrate that it moved to set aside the dismissal order as soon as it came to the plaintiff's attention; and
4. No Non-Compensable 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.

[10] I shall now consider the Reid factors as they apply to the case before the court:

1. Explanation for the Litigation Delay

[11] The onus is on the plaintiffs to demonstrate an acceptable explanation for delay in prosecuting their action. The court should look at the entire litigation and overall conduct, rather than a month-by-month analysis: Carioca's Import & Export Inc. v. Canadian Pacific Railway Limited, 2015 ONCA 592, 128 O.R. (3d) 143, at paras. 45-46.

[12] In the case before the court, the action moved very quickly at the outset. Discoveries of all parties took place within the first year after the claim was issued. Thereafter, there was significant litigation delay. The plaintiffs rely on several circumstances that contributed to the delay:

a) The Plaintiffs’ Personal Difficulties and Health Issues

[13] On several occasions, plaintiffs’ counsel notified the defendants that the plaintiffs were suffering from health issues and personal difficulties during the litigation:

• In January of 2014, plaintiffs’ counsel wrote to advise that Dian’s health was not currently stable and that she was experiencing health issues exacerbated by the 2010 accidents.
• In May of 2016, plaintiffs’ counsel wrote to advise that Dian and Aaryn Doyle were experiencing recurring symptoms as a result of injuries from the accidents. He stated that he was in the process of requesting additional medical disclosure.
• In November of 2016, an affidavit filed in response to an undertakings motion described Dian Doyle’s significant personal difficulties and health problems over the past year, including that she had been physically abused by her husband and that they had recently separated.

[14] In an affidavit filed on this motion, Dian Doyle states that she was a victim of domestic violence and mental abuse, and that she was involved in protracted divorce proceedings with her ex-husband. She states that dealing with these issues had a profound impact on her own and her daughter Aaryn’s life. It also impacted her ability to respond to requests for information from her counsel.

b) Confusion Surrounding Undertakings

[15] The undertaking process was prolonged and somewhat convoluted in this case. Once examinations for discovery were completed in February of 2013, plaintiffs’ counsel wrote to defence counsel to confirm the outstanding undertakings. He wrote to numerous third parties to obtain records. He provided medical records and responses from other third parties as he received them. However, he did not answer all the undertakings on a timely basis.

[16] Plaintiffs’ counsel did not always respond to defence letters, including a period of approximately 9 months in 2013 when he failed to respond to numerous letters.

[17] In 2015, Galasso’s counsel wrote to the plaintiffs to request answers to the outstanding undertakings. At that point, there were some undertakings that were still outstanding. However, counsel also listed a number of previously satisfied undertakings, and incorrectly stated that they were still outstanding. Counsel also mistakenly listed a number of undertakings that had not been given at the discoveries. Counsel brought an undertakings motion in November of 2016, with similar information as had been contained in the letter and with the same errors.

[18] In January 2017, the court ordered that the parties comply with a timetable that was entered on consent of all parties. Counsel for the plaintiffs made efforts to answer undertakings by continuing to gather and produce records to satisfy undertakings and update medical records.

[19] Between June 21 and October 2, 2017, counsel for the Budges sent seven letters to plaintiffs’ counsel, asking for answers to outstanding undertakings. There was no response. On November 21, 2017, a further letter was sent reminding plaintiffs’ counsel that they had now defaulted on all steps set out in the court-ordered timetable. Counsel for the Budges stated that they intended to bring a motion for answers to undertakings.

[20] Throughout the litigation, there was confusion regarding what undertakings had been answered, what was outstanding, and whether some of the requests were even undertakings. It appears that none of the counsel involved in the action took the time to carefully examine the undertakings to clear up the confusion.

[21] Rule 37.10(10)(b) requires that a responding party on a motion for undertakings provide a copy of the moving party’s undertakings chart, completed to show the answers provided or the basis for the refusal to satisfy the undertaking. Although there were two motions for undertakings in this litigation, plaintiffs’ counsel did not prepare a responding undertakings chart as required by the rules, which could have addressed some of the confusion surrounding undertakings.

[22] The fact that the defendants changed counsel numerous times likely contributed to the confusion surrounding the undertakings. Galasso has retained five different lawyers and the Budges have retained four lawyers during this litigation.

[23] The plaintiffs’ first counsel filed a lengthy affidavit on this motion, which includes copies of numerous letters sent by him during this litigation. The record demonstrates that he made numerous requests for documents from third parties. Although counsel was not always responsive to letters from defence counsel, he provided the records and/or responses from third parties as they were received.

[24] Dian Doyle has sworn an affidavit stating that when her lawyer requested information, she answered promptly, often on the same day that it was requested. If she was unable to respond immediately, it was likely related to her domestic situation with her now ex-husband.

[25] At the time the motion was argued before me in January of 2020, it appeared that all or most of the undertakings given by Dian and Aaryn Doyle have been satisfied, and that some of the records have been provided on multiple occasions.

c) Settlement Discussions

[26] In 2017, the parties made attempts to settle the action, and those settlement discussions took place over a number of months. This stalled the action from moving forward. When those settlement discussions were unsuccessful, plaintiffs’ counsel prepared a new trial record and sent it to counsel for the defendants, trying to get the action back on track.

d) Plaintiffs’ First Counsel Was in a Conflict of Interest

[27] When Dian Doyle’s marriage broke down and domestic abuse was alleged, plaintiffs’ first counsel realized that he could no longer represent Mr. Doyle due to a conflict. Counsel brought a motion to remove himself from the record.

[28] Dian and Aaryn Doyle acted quickly to retain new counsel, who was retained in March of 2018. Once he was retained, new counsel took numerous steps to obtain and disclose updated records. The removal of conflicted counsel and subsequent retainer of new counsel did not cause significant delay, but it was one of the circumstances that contributed to the litigation delay in this case.

e) Have the Plaintiffs Demonstrated an Acceptable Explanation for the Delay?

[29] There is some evidence that the plaintiffs reacted to events rather than pushing the matter forward, as is their responsibility. However, I find that the circumstances noted above, taken cumulatively, provide a reasonable explanation for the litigation delay.

2. Inadvertence in Missing the Deadline

[30] Mr. Goldberg, counsel for the plaintiffs since March 2018, has given evidence that he was aware of the changes to Rule 48.14 and that his office has a robust ticker system. However, no one in his office appreciated that the action had been struck from the trial list in 2015, so no steps were taken to avoid the dismissal. He did not intentionally miss the deadline.

[31] This is not a case where counsel for the defendants alerted plaintiffs' counsel to the impending deadline and the risk of an administrative dismissal. The deadline was missed through inadvertence, and this was an administrative technical mistake.

[32] There is no evidence that the plaintiff or her lawyer had decided not to pursue the case. In fact, when new counsel was retained, he took numerous steps to obtain and disclose records, many of which had already been previously produced.

[33] I conclude that the plaintiffs have established that the deadline was missed through inadvertence.

3. Motion to be Brought Promptly

[34] The parties agree that the motion was brought promptly.

4. No Non-Compensable Prejudice to the Defendants

[35] Under the fourth Reid factor, the plaintiffs bear the onus of showing that there is no non-compensable prejudice to the defendants. The prejudice to be considered under this factor must be caused by delay and be linked to whether a fair trial is still possible: H.B. Fuller Co. v. Rogers, 2015 ONCA 173, 330 O.A.C. 378, at para. 44.

[36] There is no requirement that the defendants adduce evidence of actual prejudice. Prejudice can be inferred by the passage of time: Jadid, at para. 16. However, prejudice is a question of fact in the particular circumstances of the case. The mere passage of time cannot be an insurmountable hurdle in determining prejudice: Carioca, at para. 49.

[37] In the case before the court, there are no missing witnesses nor any evidence of a witness’ inability to recall relevant facts. The parties engaged in settlement discussions fairly recently, and the defendants did not raise any issues about their ability to assess the claim at that time. Although defence medical examinations have not been conducted, that can still occur.

[38] The defendants state that the plaintiff undertook to provide the following documents, but the records are no longer available due to litigation delay:

i. Edward G. Agency file: Dian Doyle only ever secured one job through this agency and did not use this agency for several years prior to the 2010 accidents. The agency purges their records every two years. The records were likely destroyed before the action was even started, which was almost two years after the accidents. The loss of these records was not caused by litigation delay. ii. Court documents: At the time of one of the accidents in 2010, Dian Doyle was ticketed for driving without a valid licence. The ticket was a clerical error, which was explained to the judge and the ticket was dismissed. Ms. Dion states that she has no court documents in her possession related to this ticket. The fact that court documents have not been produced does not cause prejudice to the defendants. iii. Names and records of massage therapists: Dian Doyle undertook to provide names of massage therapists. Counsel for the defendants were advised that Dian had only a few massages in 2010, but she stopped having them because she was allergic to the massage oil. Since there were only a few massage appointments, the fact that the names and records of massage therapists have not been produced does not cause prejudice to the defendants. iv. Name of physiotherapists: The defendants have been provided with the physiotherapy records, which contain the names of the physiotherapists. There are no missing records related to this undertaking. v. OHIP summaries: The plaintiff undertook to provide OHIP summaries for five years pre-accident. When plaintiff’s counsel requested the records in 2014, he was advised that these records are only kept for 7 years. Counsel received OHIP summaries from January 31, 2007 - January 31, 2014. The records include three years pre-accident.

The Ministry of Health and Long-Term Care only maintains computer records of OHIP claims submitted by health care providers for a period of seven years. Even if counsel had requested the records in 2013 (immediately after defence counsel requested them), one year of records would still be missing.

Defence counsel states that Dian Doyle has a very complicated pre-accident medical history. She was involved in a significant motor vehicle accident in the 1990s and received a structured settlement. She has admitted that she was a very sick person in the mid-2000s. Defence counsel states that these missing documents may hamper the defendants’ ability to respond to the claim.

However, the prior car accident happened more than 10 years before the 2010 accidents. If the missing OHIP summary would have revealed that Ms. Doyle was still receiving treatment for injuries received in 1990s, the records would inevitably show that treatment continuing into the years that were disclosed. In addition, there is no evidence of actual missing medical records, only the OHIP summary which provides a list of medical services. In these circumstances, I find that the loss of one year of an OHIP summary will not be prejudicial to the defendants’ fair trial interests.

[39] While memories have inevitably faded with time, the defendants have not suffered actual prejudice.

5. Is it just that the dismissal order be set aside?

[40] A moving party does not need to satisfy each of the four Reid factors. The court is required to look at the circumstances contextually, weighing all relevant considerations to determine the just result in the circumstances of the particular case: H.B. Fuller Co., at para. 21.

[41] The courts’ bias is in favour of deciding matters on their merits rather than terminating rights on procedural grounds, especially when delay results from error of counsel and not the litigants. The law will not ordinarily allow an innocent plaintiff to suffer the loss of the right to proceed on the merits because of inadvertence of counsel: H.B. Fuller Co., at paras. 25-27.

[42] Overall, I am very concerned about the amount of time that has passed without this matter being tried. However, having weighed all relevant considerations, I determine that it is just that the dismissal order be set aside. I therefore allow the plaintiffs' motion and set aside the dismissal order as against Dian and Aaryn Doyle.

[43] Aiden Doyle has not retained counsel and did not move to set aside the dismissal order. Since he has not participated in this motion, the court makes no order to set aside the dismissal order as against Aiden Doyle.

IV. Costs

[44] The plaintiffs have been successful on this motion. However, the motion would not have been required but for the inadvertence of plaintiffs’ counsel and counsel’s failure to prosecute the action more diligently. In the circumstances, there shall be no costs of this motion.

V. Orders

[45] For the reasons set out above, the plaintiffs' motion is granted.

[46] The court makes the following orders:

1. The registrar’s order of January 16, 2019, dismissing the action for delay, is set aside as against Dian and Aaryn Doyle.
2. This action is restored to the trial list.
3. This court directs the parties to agree on a litigation timetable for this action, which shall be filed with the court. The timetable shall include dates for the following: mediation (if any); document production and answers to undertakings; motions for outstanding undertakings (if any); delivery of expert reports; a timeline for setting the matter down for trial; timing of pretrial; and any other events required to move the case to trial.
4. If the parties are unable to agree on a timetable, they shall file written submissions, no longer than two typed double-spaced pages, in Word format. Submissions shall be sent to Kitchener.Superior.Court@ontario.ca by May 15, 2020. If no submissions are received by that date, the issue of the timetable shall be deemed settled. The subject line of the email must state: “Submissions Regarding Litigation Timetable for Justice Braid”. The body of the email must contain the file number, short title of proceedings and contact information of the sender. The other parties shall be copied on the email to the court.
5. In light of the Superior Court’s closure due to COVID-19, hard copies of the submissions shall be filed within two weeks of the court office resuming operations to accept filing of court documents.

[47] The court makes no order with respect to the dismissal order that was made as against Aiden Doyle.

Braid, J. Released: April 7, 2020