Court File and Parties
COURT FILE NO.: CV-11-00422955
MOTION HEARD: 20200114
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Catherine Kuo and Allen Teng, Plaintiffs
AND:
TD General Insurance Company and 1003730 Ontario Limited, carrying on business as Foley Restoration Disaster Kleenup Canada, Defendants
BEFORE: Master B. McAfee
COUNSEL: B. G. Fejes, Counsel for the Moving Parties, the Plaintiffs
D. J. Dacquisto, Counsel for the Responding Party, the Defendant 1003730 Ontario Limited, carrying on business as Foley Restoration Disaster Kleenup Canada
HEARD: January 14, 2020
REASONS FOR DECISION
[1] The plaintiffs Catherine Kuo (Kuo) and Allen Teng (Teng) (collectively the plaintiffs) bring this motion pursuant to Rule 48.11(b) of the Rules of Civil Procedure for an order granting leave to restore the action to the trial list and permitting the delivery of an amended trial record.
[2] The defendant 1003730 Ontario Limited, carrying on business as Foley Restoration Disaster Kleenup Canada (the defendant) opposes the motion.
[3] For the reasons that follow, the motion is granted.
[4] The parties agree that the applicable test on this motion is set out in Nissar v. Toronto Transit Commission, 2013 ONCA 361 at para. 31. The onus is on the plaintiffs to demonstrate both an acceptable explanation for the litigation delay and an absence of non-compensable prejudice to the defendant if the action were to proceed to trial. See also Carioca’s Import & Export Inc. v. Canadian Pacific Railway Ltd., 2015 ONCA 592 at para. 3 and D’Souza v. Brunel International Inc. (c.o.b. ITECC Consulting), 2019 ONCA 339 at para. 5.
[5] This action arises as a result of a residential fire that occurred on December 27, 2008. The plaintiffs allege that on or about April 1, 2009, when they moved back into their home, they discovered that a large number of their items had not been returned to them. The plaintiffs allege that the defendant damaged or lost certain items of their personal property in the course of restoration work carried out after the fire.
[6] The action was commenced on March 24, 2011. The defendant’s statement of defence and crossclaim is dated May 13, 2011. Pursuant to an order dated February 7, 2012, the statement of claim was amended on February 8, 2012. The defendant’s statement of defence and crossclaim to the amended statement of claim was delivered on or about May 23, 2012.
[7] On October 31, 2014, on consent, the order of the Registrar dismissing the action for delay dated September 15, 2014, was set aside. The deadline for setting the action down for trial was extended to August 31, 2015.
[8] On January 21, 2015, on consent, the third party claim was dismissed. On March 10, 2015, on consent, the action was dismissed as against the defendant TD General Insurance Company.
[9] On January 4, 2016, on consent, the defendant obtained an order extending the time to deliver a jury notice.
[10] The action has progressed through discoveries.
[11] On September 21, 2016, mandatory mediation took place.
[12] On March 13, 2017, the plaintiffs set the action down for trial by delivering a trial record. The trial record did not contain the defendant’s jury notice. The parties did not take any further steps regarding the completion of the certification form pending the delivery of an amended trial record that would include the defendant’s jury notice. An amended trial record was not delivered. On or about June 18, 2018, the action was struck from the list.
[13] No party argued that the action was not ready for trial.
[14] There was no reference to any evidence of a deliberate intention not to advance the action.
[15] The plaintiffs’ explanation for the delay need not be perfect but needs to be acceptable.
[16] There was delay in setting the action down for trial following the agreed upon and court ordered deadline of August 31, 2015. During this period of time the defendant obtained an order extending the time to deliver a jury notice and mandatory mediation took place. This period of delay has been adequately explained.
[17] There was also a period of delay after the action was set down for trial. Other than requesting a further copy of the defendant’s jury notice, the plaintiffs took no steps to deliver an amended trial record. The plaintiffs explain that this period of delay was as a result of their original lawyer of record’s stated intention to retire. The plaintiffs’ original lawyer also indicated that he may be able to continue to handle the matter if the matter could be settled before trial. The plaintiffs made certain attempts to retain new counsel. The plaintiffs retained their current lawyer in May 2019. A notice of change of lawyer was served on May 21, 2019 and filed in July 2019. After being retained, the plaintiff’s current lawyer learned that the action had been struck from the trial list and this motion was brought. I am satisfied that the plaintiffs have provided an acceptable explanation for this period of delay due to issues regarding their representation.
[18] To the extent that there was delay due to the failure of plaintiffs’ original lawyer of record to address the issue of an amended trial record in a timely manner, the defendant submits that the plaintiffs have their remedy against the plaintiffs’ original lawyer of record. I do not agree that this is an appropriate consideration on this motion. On motions such as this, the court ought to be primarily concerned with the rights of the litigants, not with the conduct of their counsel.
[19] I am also satisfied that the plaintiffs have rebutted any presumption of prejudice. The evidence before me is that discoveries are complete. No evidence was referred to in argument of any missing documents.
[20] The defendant asserts prejudice. Employees who worked for the defendant at the relevant time have not worked for the defendant for 5 years. The defendant also relies on failing memories due to the passage of time. I am not satisfied that this constitutes actual prejudice as a result of the delay. I was not referred to any evidence of efforts on the part of the defendant to contact former employees. In addition, if the defendant was concerned with fading memories, the defendant ought to have taken steps to obtain witness statements and preserve that evidence. The defendant cannot create prejudice by failing to do something it reasonably ought to have done. See Labelle v. Canada Border Services Agency, 2016 ONCA 187, [2016] O.J. No. 1166 at para. 23. I am not satisfied of actual prejudice to the defendant.
[21] Having regard to all of the circumstances of this case I am satisfied that it is just that the court exercise its discretion to grant the relief sought.
[22] In the event that the motion was successful, the parties agreed that no costs of the motion ought to be payable. There shall be no costs of the motion.
[23] Order to go as follows:
- Leave is granted to restore the action to the trial list.
- The plaintiffs shall deliver an amended trial record within 60 days of today’s date.
- There shall be no costs of this motion.
Master B. McAfee
Date: January 17, 2020