Court File and Parties
Court File No.: CV-13-4730-SR Date: 2020-04-22 Superior Court of Justice – Ontario
Between: John Cardillo, Plaintiff
And: Willowdale Int’l Contracting Ltd. and Joseph Zaj, Defendants
Before: Lemay J
Counsel: F. Scott Turton, for the Plaintiff Josiah T. MacQuarrie, for the Defendants
Heard: October 24, 2019
Reasons for Decision
[1] Sometime in 2011, the Plaintiff, Mr. Cardillo, retained the Defendants, Willowdale Int’l Contracting Ltd. (“Willowdale”) and Joseph Zaj, to repair the roof on his house. The Plaintiff was not happy with the work that the Defendants did and started a lawsuit under the Simplified Procedure in October of 2013.
[2] After a long procedural history, which I will detail below, the Plaintiff’s action was put on the trial list and there was an appearance before Daley R.S.J. on August 9th, 2019. At that time, Daley R.S.J. removed the matter from the trial list. The action had not been restored to the trial list prior to the hearing of this motion.
[3] The Defendants have brought a motion to have this action dismissed for delay, pursuant to the provisions of either Rule 48 or Rule 24 of the Rules of Civil Procedure R.R.O. 1990, Reg. 194 (“the Rules”). For the reasons that follow, I have determined that the motion is properly heard pursuant to the provisions of Rule 48. I have also reluctantly determined that the action should be restored to the trial list on terms that I will outline below.
Background Facts
a) The Work Performed and the Claim
[4] The Plaintiff retained the Defendant Willowdale to perform maintenance and repair work on the roof at his residence. The initial retainer was entered into sometime in 2010. Ultimately, the parties entered into a contract on or about July 29th, 2011.
[5] The work that was to be performed was the replacement of existing tiles on the roof, the installation of new sheathing and other works around the perimeter of the roof. The roof was completed shortly after the contract was entered into, although the date when the work was completed is not clear from the record before me.
[6] Approximately a year after the repairs were completed, the Plaintiff contacted the personal Defendant to complain about water leaking into the property. These complaints of leaks were made on a couple of occasions over the period of approximately a year.
[7] The parties do not agree about whether there was actually a leak in the roof or whether there was any damage from that leak. As a result, the Plaintiff commenced this litigation by way of a Statement of Claim dated October 23rd, 2013.
[8] There is also a counterclaim for approximately $11,000.00 in unpaid invoices.
b) The Procedural History
[9] The action was commenced in October 2013. Discoveries were originally scheduled for January 13th, 2015, but did not proceed on that date as counsel for the Plaintiff believed that this date was only tentative. The date was adjourned by way of a telephone call from Plaintiff’s counsel to Defendants’ counsel the day before the examinations were to take place.
[10] Between February 12th, 2015 and June 4th, 2015, counsel for the Defendants wrote to counsel for the Plaintiffs on three separate occasions to inquire about discoveries. No response to these letters was provided.
[11] On December 11th, 2015, counsel for the Defendant scheduled discoveries for September 8th, 2016. The Defendant’s counsel served a Notice of Examination on July 11th, 2016.
[12] On September 1st, 2016, counsel for the Plaintiff advised that the Plaintiff would be acting for himself going forward, and invited counsel for the Defendant to contact the Plaintiff directly. As part of the materials in this motion, it became clear that the Plaintiff and his wife had jointly retained Mr. Turton (the Plaintiff’s counsel) in 2015 to mediate their marital litigation. Therefore, Mr. Turton could not act in this matter, at least at the time that the family law mediation was being conducted. Another counsel was retained by the Plaintiff in late 2016, although Mr. Turton has since resumed acting for the Plaintiff.
[13] Counsel for the Defendants wished to continue with the discoveries. As a result, he contacted the Plaintiff directly. The Plaintiff responded and advised that he was now unavailable for the discoveries on September 11th, 2016 as he had a death in the family. The Plaintiff also advised that he would not be proceeding to discover the Defendants.
[14] Defence counsel advised that, given the second cancellation of the discoveries, he would be bringing a motion to dismiss the action for delay rather than re-scheduling the discoveries. That motion resulted in a consent Order made by McSweeney J. on December 2nd, 2016. As part of that Order, discoveries were to be completed by April 15th, 2017 and the action was to be set down for trial on or before December 31st, 2017.
[15] Affidavits of Documents were exchanged prior to discoveries, which took place on April 15th, 2017. Mr. Turton was again representing the Plaintiff and has continued to represent him since the discoveries were held. I understand that the family mediation was complete by this point.
[16] The action was set down for trial on December 31st, 2017, and the matter was spoken to in Assignment Court on March 26th, 2018. A trial date was not set as counsel for the Defendants wished to pursue some refusals from the discoveries. The matter was adjourned to be spoken to in Court on September 10th, 2018 before Daley J.
[17] In the meantime, the Defendants proceeded with their motion to compel answers to refusals on August 14th, 2018. I understand that most of the issues were resolved. The portion of the motion that proceeded was for the first party insurer files regarding roofing issues in 2008 and 2012. For clarity, it appears that the Plaintiff’s roof (or at least part of it) was repaired in both 2008, before the work done by the Defendants, and again in 2012, after the work done by the Defendants. It also appears that insurance related claims were made for both repairs. Bielby J. granted the Defendants’ motion on the day it was brought, as he found that the documents were relevant.
[18] In his Affidavit sworn for this motion, the Plaintiff asserted that the motion for production was as a result of a misunderstanding. I disagree, and share Bielby J.’s observation that “the Defendants are not required to take the word of the Plaintiff as to the relevancy of the documents sought.” These were documents that appeared to be relevant and producible. The fact that no documents were produced as a result of this Order does not make it a “misunderstanding” or otherwise take away from the reasonableness of the Defendants’ requests.
[19] On September 18th, 2018, Bielby J. ordered costs against the Plaintiff in the sum of $3,065.51, inclusive of HST and disbursements. Those costs would have been due and payable by October 18th, 2018. At the time that the Plaintiff’s Affidavit for this motion was sworn in October of 2019, these costs had not yet been paid although I understand that they were paid on October 21st, 2019.
[20] In the meantime, the matter was struck from the trial list by Daley J. at the appearance on September 10th, 2018. An adjournment was requested but refused. I note that the materials from the parties were not clear as to what the date of this appearance was, so I checked the Court records to confirm the date.
[21] As a result of all of these facts, the Defendants took the position that the Plaintiff was no longer in compliance with the order of McSweeney J. and that the matter should be dismissed for delay. In the alternative, counsel for the Defendants asks that I order a status hearing and direct that the Plaintiff show cause as to why the action should not be dismissed for delay.
[22] No steps were taken by the Plaintiff to restore this matter to the trial list until after he was served with the motion to have this action dismissed for delay. At that point, the Plaintiff asked for the matter to be restored to the trial list as part of his responding record, and also paid the outstanding costs.
[23] The motion proceeded before me on October 24th, 2019.
The Issues
[24] The following issues flow from the facts that I have outlined above:
a) Which Rule applies in this case, Rule 24 or Rule 48? b) Should the action be dismissed for delay?
[25] I will address each issue in turn.
Issue #1 - Which Rule Applies?
[26] In this case, I must first determine which Rule applies. The Defendants have moved under both Rules. Under Rule 24, they seek a dismissal of the action. Under Rule 48 they seek a status hearing, and argue that I should use my powers under that Rule to dismiss the action.
[27] The Plaintiff correctly points out that there is a counterclaim in this case. The Defendants agreed during the course of argument that, if the Plaintiff’s claim was dismissed, the counterclaim would have to be dismissed as well. I am not sure that this concession was required under the Rules because of the provisions of Rules 24.03 and 48.14(9) that allow for counterclaims to proceed even when claims are dismissed for delay. However, given my conclusions on this case, it is not necessary to address this issue any further.
[28] I will divide my analysis of this issue into three parts:
a) The test for a dismissal for delay under Rule 24. b) The test for a dismissal for delay under Rule 48 c) Determining which test should apply to this case.
a) The Test Under Rule 24
[29] Rule 24.01 permits a defendant to move to have an action dismissed for delay. That Rule states as follows:
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,
(a) to serve the statement of claim on all the defendants within the prescribed time;
(b) to have noted in default any defendant who has failed to deliver a statement of defence, within thirty days after the default;
(c) to set the action down for trial within six months after the close of pleadings; or
(d) Revoked: R.R.O. 1990. Reg. 194, r. 24.01 (2).
(e) to move for leave to restore to a trial list an action that has been struck off the trial list, within thirty days after the action was struck off. R.R.O. 1990, Reg. 194, r. 24.01; R.R.O. 1990, Reg. 194, r. 24.01 (2); O. Reg. 770/92, s. 7; O. Reg. 533/95, s. 4 (1).
(2) The court shall, subject to subrule 24.02 (2), dismiss an action for delay if either of the circumstances described in paragraphs 1 and 2 of subrule 48.14 (1) applies to the action, unless the plaintiff demonstrates that dismissal of the action would be unjust. O. Reg. 259/14, s. 6.
[30] Rule 24.02 deals with parties under disability, and is not a relevant consideration in this case.
[31] In North Toronto Chinese Alliance Church v. Gartner Lee Ltd. (2012 ONCA 251), leave to appeal refused [2012] S.C.C.A. No. 248), the Court of Appeal stated that the test for dismissing an action for delay under Rule 24.02 is well established (see also Armstrong v. McCall (2006), 213 O.A.C. 229 (C.A.) and Woodheath Developments Ltd. v. Goldman (2003), 66 O.R. (3d) 731 (Div. Ct.)). An action should not be dismissed unless:
a) The default is intentional and contumelious; or
b) The plaintiff or the plaintiff’s lawyers are responsible for the inexcusable delay that gives rise to a substantial risk that a fair trial might not now be possible.
[32] The test has been more recently expressed by the Court of Appeal in Ticchiarelli v. Ticchiarelli (2017 ONCA 1), where the Court considered the second branch of the test and stated that a court will be justified in dismissing an action for delay where the delay is “inordinate, inexcusable and prejudicial to the defendants in that it gives rise to a substantial risk that a fair trial of the issues will not be possible” (at para 12).
[33] It is clear that this test is disjunctive, and that the moving party can succeed under either branch. It is also clear that the moving party, the Defendant, has the onus. I will briefly set out what is required under each branch of the test.
[34] First, the phrase “an intentional and contumelious default” speaks to a delay that is at least reckless, and perhaps willful. It is the sort of default where there is no reasonable explanation for it, and where there is an element of disrespect to the court. In Langenecker v. Sauve (2011 ONCA 803), Doherty J.A. noted that motions under this branch of the test are rare, and they are usually accompanied by a breach of one or more court orders.
[35] Then, there is the second branch of the test. Meeting this branch of the test requires proof that the plaintiff and/or the plaintiff’s lawyers are responsible for an “inexcusable” delay that gives rise to a substantial risk that a fair trial might now not be possible. Both parts of this branch of the test must be satisfied in order for the action to be dismissed for delay under Rule 24.
[36] An inexcusable delay is one where there is no reasonable explanation for the delay. The court must examine the reasons for the delay and look for explanations that are “reasonable and cogent” or “sensible and persuasive.” (Ticchiarelli, supra at para 16).
[37] This brings me to the question of a substantial risk that a fair trial might now not be possible. While the defendant bears the onus under a Rule 24 motion, there is also a presumption of prejudice that will flow if, in the words of Master Dash “there has been an inordinate delay after the cause of action arose or after the passage of a limitation period”. See Francis v. Leo A. Seydel Ltd. (2015 ONSC 5507).
[38] Further, the plaintiff has the onus to rebut the presumption of prejudice. Finally, even if there is evidence from the plaintiff rebutting the prejudice, the action will still be dismissed if the defendant leads evidence of actual prejudice. See Berg v. Robbins ([2009] O.J. No. 6169 (Div. Ct.)).
[39] Courts have found that delays of between 8 and 11 years have amounted to lengthy delays. Berg, supra is an example of such a case. Similarly, in Bourque v. Nogojiwanong Friendship Centre (2018 ONSC 2494), Charney J. was faced with an employment law case where the evidence of witnesses was critical. He found that a seven year delay in proceeding with the action met the test under Rule 24.
[40] More generally however, both Bourque, supra and Langenecker, supra state that the determination of whether the delay is inordinate is a contextual matter because litigation moves at different speeds depending on the nature of the case. In this case, I would make two observations. First, the delay in this case of approximately six to seven years is at the bottom end of the range of delay seen in the case law. Second, this action is a Simplified Procedure action involving the repair of a roof. As a result, it should have proceeded relatively promptly compared to other litigation.
b) The Test Under Rule 48
[41] The relevant provisions of Rule 48 read as follows:
48.11 Where an action is struck off a trial list, it shall not thereafter be placed on any trial list except,
(a) in the case of an action struck off the list by a judge, with leave of a judge; or
(b) in any other case, with leave of the court. O. Reg. 55/08, s. 4.
48.14 (1) Unless the court orders otherwise, the registrar shall dismiss an action for delay in either of the following circumstances, subject to subrules (4) to (8):
The action has not been set down for trial or terminated by any means by the fifth anniversary of the commencement of the action.
The action was struck off a trial list and has not been restored to a trial list or otherwise terminated by any means by the second anniversary of being struck off. O. Reg. 170/14, s. 10; O. Reg. 487/16, s. 8 (1).
(4) Subrule (1) does not apply if, at least 30 days before the expiry of the applicable period referred to in that subrule, a party files the following documents:
- A timetable, signed by all the parties, that,
i. identifies the steps to be completed before the action may be set down for trial or restored to a trial list, as the case may be,
ii. shows the date or dates by which the steps will be completed, and
iii. shows a date, which shall be no more than two years after the day the applicable period referred to in subrule (1) expires, before which the action shall be set down for trial or restored to a trial list.
- A draft order establishing the timetable. O. Reg. 170/14, s. 10.
Status Hearing
(5) If the parties do not consent to a timetable under subrule (4), any party may, before the expiry of the applicable period referred to in subrule (1), bring a motion for a status hearing. O. Reg. 170/14, s. 10.
(6) For the purposes of subrule (5), the hearing of the motion shall be convened as a status hearing. O. Reg. 170/14, s. 10.
(7) At a status hearing, the plaintiff shall show cause why the action should not be dismissed for delay, and the court may,
(a) dismiss the action for delay; or
(b) if the court is satisfied that the action should proceed,
(i) set deadlines for the completion of the remaining steps necessary to have the action set down for trial or restored to a trial list, as the case may be, and order that it be set down for trial or restored to a trial list within a specified time,
(ii) adjourn the status hearing on such terms as are just,
(iii) if Rule 77 may apply to the action, assign the action for case management under that Rule, subject to the direction of the regional senior judge, or
(iv) make such other order as is just. O. Reg. 170/14, s. 10.
[42] In this case, there was a previous timetable in place by virtue of McSweeney J.’s timetabling order. However, that timetable is no longer being followed, and the matter is not on the trial list. Therefore, it can no longer be said that the parties have consented to a timetable. As a result, if I find that Rule 48 applies to this case, the provisions relating to a status hearing would apply.
[43] I also note that the test for leave to restore a matter to the trial list under Rule 48.11 is the same as the test for dismissing an action for delay under Rule 48.14. See Nissar v. Toronto Transit Commission (2013 ONCA 361).
[44] In Khan v. Sun Life Assurance (2011 ONCA 650), the Court of Appeal confirmed that, on a motion under Rule 48, the plaintiff must show that there was an acceptable explanation for the delay and that the defendants would not suffer any non-compensable prejudice as a result of the delay. The test under Rule 48 is conjunctive, and the plaintiff must establish both halves of the test. The onus is on the plaintiff on a Rule 48 motion (Koepcke v. Webster 2012 ONSC 357).
[45] The Court of Appeal’s decision in Kara v. Arnold (2014 ONCA 871) sets out a number of other principles that are relevant when conducting a status hearing. These considerations include the following:
a) The motions judge must weigh all of the relevant factors, including the length of the delay, the explanations offered by the plaintiff, the defendant’s contribution to the delay and any prejudice that the defendant might suffer.
b) The explanation of the delay requires the court to consider the plaintiff’s intention to prosecute the action throughout the period since the commencement of the action (see Koepcke, supra)
[46] The application of this Rule must not be overly formalistic or mechanical. Instead, there must be a balance between the need for timely justice and the plaintiff’s ability to provide a reasonable explanation.
c) Which Test Should be Used?
[47] The parties agree that the Defendants bear more of a burden under Rule 24, and the Plaintiff bears more of a burden under Rule 48. The parties also advised me there were no cases that addressed either the issue of which test should be used in a circumstance such as this, or what the differences between the two tests are.
[48] In my review of the case law, I determined that the two tests are different (Ticchiarelli, supra at para. 31. See also Bolohan v. Hull 2012 ONCA 121). In addition, I have considered in detail the Court of Appeal’s decision in Faris v. Eftimovski (2013 ONCA 360), which discusses the differences between Rule 24 and Rule 48. Rule 48 has been amended since this decision was issued, but much of the analysis in Faris is still applicable to the facts before me.
[49] This brings me to the issue of which Rule governs this motion. I have concluded that it is Rule 48 that governs in this case. I have reached that conclusion for the following reasons:
a) If this action is not restored to the trial list, it will be administratively dismissed in August 2020. In other words, if the Court does nothing and makes no orders, then the action will be dismissed. As a result, it is not necessary for the Defendant to bring a motion under Rule 24 to have the matter dismissed.
b) The action was struck from the trial list by Daley R.S.J. The only way that it can be restored to the trial list is under Rule 48.11 (a), with a judge granting leave for it to be restored to the trial list.
c) In order for me to determine whether this matter should be restored to the trial list, it is necessary to consider the test under Rule 48.11 and the provisions under Rule 48.14 that I have reproduced above.
[50] I am fortified in my conclusion by the different circumstances in which each Rule is used. As the Court in Faris, supra, notes, Rule 24 allows a defendant to proactively move to have an action dismissed for delay, even where the action is at a relatively early stage or where it is on the trial list. North Toronto Chinese Alliance Church, supra is an example of such a case. Paragraph 7 of that decision notes that the action was set down for trial before the motion to dismiss the action for delay was brought.
[51] Putting the matter on a trial list is an indication from the plaintiff that they are ready to proceed to trial and that the court accepts that the matter is ready to proceed to trial. In those circumstances, the plaintiff should not bear the burden of demonstrating that the action should not be dismissed for delay. Similarly, where a defendant seeks to dismiss an action at a relatively early stage in the proceeding, that defendant should bear the burden of explaining why the action should be dismissed.
[52] Rule 48, however, is used for cases where the matter has not been put on the trial list, or has been struck off the trial list because it is not ready to proceed to trial. Motions under Rule 48 generally only arise where there has already been a considerable delay in moving the action forward. In those types of cases, it is incumbent on the plaintiff to demonstrate that the matter should be allowed to proceed to trial. Further, as Faris, supra notes, the purpose behind Rule 48 is for the court to control the pace of litigation.
[53] Given this matter could only return to the trial list by application of the provisions of Rule 48, I am of the view that this motion should proceed under Rule 48. It would be possible to dismiss this action under Rule 24, but it would not be possible to have the action proceed by applying Rule 24. The question I have to decide is whether leave should be given to restore this action to the trial list.
[54] I should also note that, in normal circumstances, a two-step process is followed in a Rule 48 hearing. First, an oral hearing is held. Then, if the judicial officer conducting the hearing is of the view that the action is vulnerable to dismissal for delay, then a full status hearing is held with Affidavits (see Bolohan, supra at para 8). However, in this case, both parties have already provided Affidavits and neither party sought leave to provide additional materials. As a result, I will conduct my review on the materials that have been filed.
Issue #2 - Should the Action Be Dismissed for Delay?
[55] This question is really a question of whether the action should be restored to the trial list. I have very reluctantly concluded that it should be restored to the trial list. What follows an explanation for my decision, and why I am reluctant to make it.
[56] First, in the time period prior to McSweeney J.’s timetable Order, the Plaintiff was not prosecuting this action in any meaningful way. In this respect, I note two important points. First the discoveries were cancelled on two separate occasions. Second, and more importantly, the Plaintiff and his wife retained Mr. Turton to act for them as a mediator in February 2015. It is clear that nothing was done by the Plaintiff in respect of this action between February 2015 and the motion for delay more than eighteen months later.
[57] The explanation the Plaintiff offered for this delay was that the marital problems made it difficult for Mr. Turton to act for either the Plaintiff or his wife. This is not a compelling explanation. If the Plaintiff had been interested in moving this litigation forward, he could have retained other counsel in this time period or acted for himself.
[58] Then, the timetable was ordered. It was complied with for a period of time, and the matter was put on the trial list in December 2017. However, the matter was removed from the trial list in the summer of 2018 because it was not ready for trial. There were still outstanding refusals to be addressed.
[59] In the period between the removal of the action from the trial list and the hearing of this motion more than a year later, the Plaintiff made no efforts to restore the action to the trial list. However, the Plaintiff did provide a response to the refusals that were ordered to be answered by Bielby J.
[60] The Plaintiff asserts that he was unable to put the matter back on the trial list because he had not paid the costs ordered by Bielby J. The explanation for failing to pay these costs in a timely way was that the Plaintiff had suffered a number of financial reversals. There is no explanation of these “financial reversals” or how the Plaintiff was miraculously able to pay the costs after the Defendants had brought this motion.
[61] Given the history of this litigation, I conclude that the Plaintiff has not proffered a realistic explanation for his failure to take steps to return this matter to the trial list. However, I also note that the matter is ready for trial and that the Plaintiff did take all of the required steps (other than paying the costs) to return the matter to the trial list in the time between Daley J.’s order striking it from the trial list and the Defendants serving their motion.
[62] As van Rensburg J.A. noted in Carioca’s Import and Export Inc. v. Canadian Pacific Railway (2015 ONCA 592) at para. 54, keeping an action that is ready for trial off the trial list is punitive rather than efficient. In my view, that is a significant consideration in this case, particularly since the action was only six and a half years old when this motion was brought.
[63] However, Carioca’s Import also directs that the court should consider the conduct of both parties. In this case, even a cursory review of the facts makes it clear that, for the most part, it is the Defendants who have been attempting to move this action forward. The Plaintiff has conducted this action in a dilatory manner, and the action is only ready for trial because the Defendants have twice forced the issue of a timetable and/or schedule.
[64] There is one substantive criticism that can be levelled against the Defendants: they failed to move on the outstanding refusals earlier. Those questions were refused at discoveries in April 2017. On the record before me, there is no evidence that the Defendants sought to compel these answers at any time prior to March of 2018, when they were at assignment Court. There was then a further delay of five months before the motion was actually returnable. The Defendants should have moved faster to address this issue.
[65] When all of these factors are weighed together, I come to the conclusion that the Plaintiff has provided a barely acceptable explanation for the delay. My reluctance to return this matter to the trial list comes from the fact that the quality of the explanation that the Plaintiff has proffered for his dilatoriness is not at all compelling.
[66] This brings me to the question of prejudice. In this case, the question of prejudice focuses on two issues: the passage of time, and the missing insurance records for the roof repairs. On the second point, the motion before Bielby J. was for production of third party insurance records relating to the 2008 and 2012 incidents involving the Plaintiff’s roof. Those requests did not produce any records. I am not, however, prepared to accept the Plaintiff’s assertion that these records are irrelevant, or that the other incidents on the Plaintiff’s roof are irrelevant. That is a question for the trial judge.
[67] As a result, in this case, there may be a rebuttable presumption of prejudice because of the passage of time, and because there might be missing documents. I accept that this rebuttable presumption has been rebutted by the Plaintiff because he has sworn that the answer from the insurance companies was that they had no files. He has also sworn that any missing evidence would be irrelevant to the proceedings.
[68] Finally, the Plaintiff has provided some explanation for the failure to prosecute this action in a timely way, and the delays in this action are (as I have noted) at the bottom end of what the Court sees in cases like this. Having rebutted the presumption of prejudice, the onus shifts to the Defendants to demonstrate some actual prejudice.
[69] The Defendants argue that actual prejudice is established because the information in the insurance files is critical information, and that the Plaintiff has testified under oath at discovery that he has little recollection of the 2008 incident on the roof. As a result, the Defendants argue that this lack of information has deprived them of “the ability to properly defend this action through access to relevant documents on issues of both liability and damages.”
[70] I reject this assertion for the following reasons:
a) I do not have the communications from the Insurance companies. As a result, I do not know if their files were lost or that there was never a file in the first place. It is difficult to conclude actual prejudice if there is no clear evidence that documents have been lost.
b) Even if the files were lost or are now not retrievable, the Defendants have not provided any indication as to documents that might be missing from the file that could have assisted in their case. In any event, the Defendants delayed pursuing these answers for nearly eighteen months after they received the refusal from the Plaintiff.
c) Even if there were missing documents that might have assisted in the Defendants’ case, their Affidavit makes it clear that they had an engineering report from the 2008 repair that raises questions about whether the roof repair was done properly. This report, which I was not provided with as part of the Affidavit materials, would appear (on the description included in the Affidavit) to provide the Defendants with information that will materially assist their defence on both liability and damages.
[71] Given all of these facts, I reluctantly conclude that the Plaintiff has provided sufficient explanation for me to restore this matter to the trial list, and that there is no non-compensable prejudice that would result from restoring the action to the trial list.
Conclusions and Costs
[72] For the foregoing reasons, I order as follows:
a) The action is to be restored to the trial list.
b) The parties are to attend the next assignment Court after this matter is restored to the trial list, which is currently scheduled for June 22nd, 2020 at 9:00 a.m. They are required to choose a pre-trial date and a week of trial date at this assignment Court.
c) The dates that are selected are then peremptory to the Plaintiff, and will proceed with or without counsel.
[73] The parties are encouraged to agree on the issue of costs. If they are unable to do so, then I will receive costs submissions in accordance with the following timetable:
a) Each side shall serve and file their costs submissions of no more than two (2) single-spaced pages, exclusive of case-law, offers to settle and bills of cost within ten (10) calendar days of the release of these reasons.
b) Each side shall be entitled to serve and file a reply submission of no more than one (1) single-spaced page, exclusive of case law within seven (7) calendar days of receipt of the other side’s originating costs submissions.
[74] Given the ongoing shutdown of the Court’s regular operations, Counsel are directed to file their costs submissions electronically with my judicial assistant. Further, if either side requires an extension to the deadlines for costs submissions, the request is to be made (even if it is on consent) through my assistant. If costs submissions are not made in the timetable as set out above and the parties do not seek an extension from me, then no costs will be awarded.
Lemay J Released: April 22, 2020