Court File and Parties
COURT FILE NO.: CV-02-CV237411 MOTION HEARD: 20200312 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Christopher Quigley, Plaintiff AND: John Schertzer, Richard Benoit, Steven Correia, Richard Chase, Jonathan Reid, Ned Maodus, the Toronto Police Services Board, David Boothby, Chief of Police of the Toronto Police Service, Tom Cook and Bruce Morrison, Defendants
BEFORE: Master B. McAfee
COUNSEL: T. Gleason, Agent for the Lawyer for the Plaintiff R. Bush and J. Hunter, Counsel for the Defendants the Toronto Police Services Board, David Boothby, Tom Cook and Bruce Morrison L. Honickman, Counsel for the Defendants Richard Benoit, Steven Correia, Richard Chase, Ned Maodus T. Danson, Counsel for the Defendant Jonathan Reid G. Clewley, Counsel for the Defendant John Schertzer
HEARD: March 12, 2020
Reasons for Decision
[1] The plaintiff Christopher Quigley (the plaintiff) brings a motion for a timetable including an extension of the deadline to set the action down for trial (the motion). The defendants oppose the motion. The defendants the Toronto Police Services Board (TPS), David Boothby (Boothby), Tom Cook (Cook) and Bruce Morrison (Morrison) (collectively the TPS defendants) bring a cross-motion to dismiss the action for delay (the cross-motion). The other defendants John Schertzer (Schertzer), Richard Benoit (Benoit), Steven Correia (Correia), Richard Chase (Chase), Jonathan Reid (Reid), and Ned Maodus (Maodus) oppose the motion, support the cross-motion, and adopt and rely upon the submissions of the TPS defendants.
[2] This action arises out of the arrest and the laying of criminal charges against the plaintiff on April 30, 1998. The plaintiff alleges, among other things, that members of the TPS assaulted him. The plaintiff also alleges that the release executed by him in consideration of a guilty plea and the withdrawal of certain charges, including assault police, wherein the plaintiff released the TPS and officers from any liability, is invalid and/or unenforceable.
[3] On October 11, 2002, the statement of claim was issued.
[4] On or about November 6, 2002, TPS and Boothby delivered a notice of intent to defend. On or about January 24, 2003, TPS and Boothby delivered a statement of defence.
[5] On or about January 31, 2003, Schertzer, Benoit, Correia, Chase, Reid and Maodus delivered a statement of defence.
[6] On or about April 27, 2004, the statement of claim was amended to add Cook and Morrison as defendants.
[7] On or about June 1, 2004, Schertzer delivered an amended statement of defence.
[8] On or about February 5, 2007, Cook and Morrison delivered a notice of intent to defend.
[9] On February 5, 2007, Master Haberman, who was case managing the action at the time, stayed the action due to related criminal proceedings involving some of the defendants.
[10] On June 12, 2017, on an unopposed basis, I ordered that the stay be lifted. The proposed order did not contain a set down date. I ordered a new deadline to set the action down for trial of June 30, 2019.
[11] Cook and Morrison have not delivered a statement of defence. The defendants have not served affidavits of documents. TPS and Boothby provided a draft affidavit of documents. The plaintiff has served an affidavit of documents. Examinations for discovery have not taken place.
[12] Although different tests and onuses are applicable on the motion and cross-motion, the parties agree that there is also overlap in the tests. The parties agreed that both motions would be argued at the same time, with the TPS defendants making their submissions on both motions first, the plaintiff responding, and the TPS defendants having the right of reply. The other defendants did not bring their own cross-motion or file any material on the motion or cross-motion. The other defendants were given an opportunity to make submissions following the submissions of the TPS defendants and following the reply of the TPS defendants. Counsel for the TPS defendants confirmed that the main reason for bringing the cross-motion was to ensure that the action would be dismissed if the motion was not successful.
[13] On a motion to extend the deadline to set the action down for trial the applicable test is similar to the test on a motion to set aside a registrar’s dismissal order (*Wood v. Shoppers Drug Mart Inc.*, [2018] O.J. No. 861 (Ont. S.C.J.) at paras. 35-40).
[14] On a motion to set aside a registrar’s dismissal order 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. 14-15; *Jadid v. Toronto Transit Commission*, 2016 ONCA 936 (Ont. C.A.) at paras. 9-12, 16; *Marché d’Alimentation Denis Thériault Ltée v. Giant Tiger Stores Ltd.*, 2007 ONCA 695 (Ont. C.A.) at paras. 12, 20-21).
[15] In determining this motion, 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 timely resolution of actions.
[16] 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.
[17] I am satisfied that the plaintiff has provided an adequate explanation for the delay in this action. The main periods of delay in this action relied upon by the TPS defendants are from June 2012 to May 2016 and from June 2017 to June 2019.
[18] During the period of June 2012 to May 2016 the action was stayed pursuant to the order of Master Haberman dated February 5, 2007. The reason for the stay was ongoing criminal proceedings involving some of the defendants. The criminal proceedings took some time to conclude. The application for leave to appeal to the Supreme Court of Canada was dismissed on October 29, 2015.
[19] Although the TPS defendants argue that the plaintiff ought to have proceeded with this action after the criminal trial concluded in June 2012 notwithstanding the appeals, there is no evidence before me that any of the defendants ever communicated that position to the plaintiff. There is no evidence before me that counsel for one of the non-moving defendants who was required to report back to Master Haberman at the conclusion of the criminal trial proceedings or by the end of June 2008, ever did so at any point in time. The actions of the defendants are inconsistent with a position that notwithstanding the appeals, the plaintiff ought to have proceeded to obtain an order lifting the stay following the conclusion of the criminal trial. This period of delay has been adequately explained.
[20] During the period of June 2017 to June 2019 there is no issue that plaintiff’s counsel (not counsel on this motion) failed to respond to correspondence from counsel for the TPS defendants concerning the plaintiff’s intentions with respect to proceeding with this matter. There is also no issue that plaintiff’s counsel ought to have responded to those communications. However, during this time the plaintiff was taking steps in this matter. Plaintiff’s counsel made requests and was awaiting the transcripts from the criminal proceedings. Plaintiff’s counsel received some, but not all, transcripts in February 2018, and then reviewed the transcripts. The plaintiff also retained an expert to assist with processing and understanding the large amount of police documents that the plaintiff expected to receive. The expert was also able to obtain documents on his own. Plaintiff’s counsel also met numerous times with the plaintiff during this time. This period of delay has been adequately explained.
[21] This motion to extend the deadline to set the action down for trial was scheduled prior to the deadline to set the action down for trial. There is no evidence of any deliberate intention to miss the deadline to set the action down for trial.
[22] This motion was brought promptly and was scheduled prior to the deadline to set the action down for trial.
[23] Prejudice is inherent in long delays. The plaintiff has rebutted any presumption of prejudice. The plaintiff has served an affidavit of documents. TPS and Boothby have provided a draft affidavit of documents. There were related criminal proceedings that concluded in October 2015. Transcripts from the criminal trial would be available. There is no evidence that any relevant documents are no longer available.
[24] The TPS defendants argue that there is actual prejudice because Cook retired from TPS on March 1, 2006 and efforts by TPS to contact Cook have been unsuccessful. There is no evidence of the specific efforts made by TPS to contact Cook. Cook is represented by counsel and is one of the moving parties on this motion. No other defendants put forward any evidence on this motion. I am not satisfied of actual prejudice to the defendants.
[25] In Marché, supra at paras. 37-38 Justice Sharpe writes about the importance of finality in litigation and I am mindful of the need for finality in litigation. However, in the circumstances of this case, the principle of finality is not engaged. There is no order dismissing the action and this motion was scheduled in advance of the deadline to set the action down for trial.
[26] Applying a contextual approach and considering the relevant factors and principles, I am satisfied that it is just that I exercise my discretion to extend the deadline to set the action down for trial. The deadline to set the action down for trial is hereby extended to a date to be set by further court order. The registrar is directed not to dismiss the action for delay in the interim.
[27] For the reasons given above, the cross-motion is dismissed. Assuming that the TPS defendants have a right to bring the cross-motion notwithstanding that they have not served a sworn affidavit of documents and Cook and Morrison have not delivered a statement of defence, I have found that the plaintiff has satisfied his onus to provide an adequate explanation for the delay and has satisfied his onus to rebut any presumption of prejudice and I have not found any actual prejudice (*Langenecker v. Sauvé*, 2011 ONCA 803, [2011] O.J. No. 5777 (Ont. C.A.) at paras. 3-12; *Deutsche Postbank AG v. Kosmayer*, [2019] O.J. No. 6539 (Ont. S.C.J.) at paras 16-20, 22-28).
[28] When regular court operations resume, counsel may arrange an attendance before me to address timetabling, including a new deadline to set the action down for trial, the delivery of material in support of any request for costs, and the delivery of material for the plaintiff’s motion for productions, to the extent that any of these matters remain in dispute.
[29] Order to go as follows:
- The motion is granted. The deadline to set the action down for trial is hereby extended to a date to be set by further order. The registrar is directed not to dismiss the action for delay pending my further order.
- The cross-motion is dismissed.