Court File and Parties

COURT FILE NO.: CV-13-488430 MOTION HEARD: 2020-03-12 REASONS RELEASED: 2020-06-29

SUPERIOR COURT OF JUSTICE – ONTARIO

BETWEEN:

SUZETTE JEFFERS Plaintiff

• and-

INTACT INSURANCE formerly known as ING INSURANCE COMPANY OF CANADA Defendant

BEFORE: MASTER M.P. McGRAW

COUNSEL: R.J. Hooper, for the Plaintiff, Suzette Jeffers J. Evans and E. Wilson, for the Defendant, Intact Insurance formerly known as ING Insurance Company of Canada

REASONS RELEASED: June 29, 2020

Reasons for Endorsement

I. Overview

[1] This is a motion by the Plaintiff, Suzette Jeffers, to set aside the Order of the Registrar Dismissing Action For Delay dated October 1, 2018 (the “Dismissal Order”).

II. Background

[2] This action arises from a motor vehicle accident on May 9, 2009 in Toronto. The Plaintiff’s vehicle was rear-ended by a vehicle driven by Jamie Duncan who was charged with impaired driving. The Plaintiff retained Sergio Grillone of Grillone Law Firm. Mr. Grillone commenced an action on behalf of the Plaintiff by Statement of Claim issued on May 6, 2011 (the “Related Action”) against Ms. Duncan, John Doe and Don Howson Operations Incorporated operating as Howson Auto Leasing and 6944230 Canada Inc. (“Howson”). In the Related Action, the Plaintiff claimed $750,000 in general damages and unspecified special damages for injuries sustained in the accident. The Plaintiff did not name her automobile insurer, Intact Insurance formerly known as ING Insurance Company of Canada (“Intact”) in the Related Action. In 2012, Michelle F. Jorge of Jewell Radimisis Jorge LLP became co-counsel for the Plaintiff in the Related Action. Mr. Grillone remained lawyer of record.

[3] Howson filed its Amended Statement of Defence and Crossclaim on August 7, 2012 in which it pleaded that Ms. Duncan and/or John Doe had no valid agreement or consent to use the vehicle. Ms. Duncan filed her Statement of Defence on May 28, 2013. Examinations for discovery in the Related Action were held on December 20, 2010, July 15, 2013 and September 11, 2014.

[4] Mr. Grillone commenced the present action against Intact on behalf of the Plaintiff by Statement of Claim issued on September 10, 2013 claiming coverage under her OPCF 44R policy on the basis that the Defendants in the Related Action were either unidentified, uninsured or underinsured. The Plaintiff claims general damages of $300,000, special damages of $700,000 and unspecified damages for future care. Mr. Grillone was the Plaintiff’s lawyer of record in this action and Ms. Jorge was his co-counsel. Intact filed its Statement of Defence and a Jury Notice on October 30, 2013.

[5] Mediation in the Related Action was held on October 17, 2014. The Related Action settled around that time for payment of $40,000 and was dismissed on consent on December 23, 2014 (the “Settlement”). Intact did not receive notice of or participate in the mediation and was not aware of nor did it consent to the Settlement. Intact’s counsel wrote to Mr. Grillone and Ms. Jorge on October 21, 2016, January 5, 2017, January 26, 2017 and March 31, 2017 advising that they had been attempting to contact Ms. Jorge since August 5, 2016 to determine the status of the Related Action. Intact’s counsel also advised that it was their understanding that the Related Action had been mediated and possibly settled. In the January 26, 2017 letter, Intact’s counsel stated that they spoke to Mr. Grillone on October 26, 2016 but was he was unable to provide any information regarding the Related Action, adding that it was “unclear who is handling this claim on behalf of Ms. Jeffers”. Intact’s counsel further stated that this action should be dismissed since the Duncan vehicle had coverage available to respond to the Plaintiff’s claims.

[6] In a letter dated April 23, 2018, Intact’s counsel advised that Ms. Jorge confirmed in a telephone discussion on April 18, 2018 that the Related Action settled in 2014 and that counsel for Ms. Duncan and Howson had confirmed that there was coverage which responded to the Plaintiff’s claim. Intact’s counsel reiterated Intact’s position that since there was a valid insurance policy which responded to the Plaintiff’s claims, this action should be discontinued.

[7] The Plaintiff’s examination for discovery in this action took place on March 29, 2016. On April 25, 2016 and January 2, 2017, Intact served Notices of Change of Lawyer. On March 2, 2018, Intact’s counsel emailed Plaintiff’s counsel to canvass dates for mediation. No response was received.

[8] On October 4, 2018, a Law Clerk in Ms. Jorge’s office sent an email to Intact’s counsel advising that she was in the process of booking a motion to extend the time to set this matter down for trial and requested his availability on dates in December 2018 obtained from the court office. Intact’s counsel did not respond and the Law Clerk followed up on October 9, 2018. Mr. Grillone received the Dismissal Order on October 11, 2018. On October 15, 2018, Ms. Jorge’s Law Clerk, not having heard from Intact’s counsel, emailed again to advise that the action had been dismissed for delay and requested counsel’s availability for this motion. Intact’s counsel responded that day.

[9] This motion was originally scheduled for December 5, 2018. Intact brought its own motion returnable December 5 seeking to compel the Plaintiff to answer 34 outstanding undertakings and to provide particulars of the Settlement (the “Undertakings Motion”). On November 16, 2018, Ms. Jorge’s office requested Intact’s position on this motion. Intact’s counsel advised that its position would be provided after receipt of the Plaintiff’s motion materials. The Plaintiff did not serve any. On December 4, 2018, Ms. Jorge’s office emailed Intact’s counsel to advise that the Plaintiff consented to the Undertakings Motion including costs, however, due to an administrative oversight in Mr. Grillone’s office, this motion had not been confirmed. By reply email that day, Intact’s counsel advised that Intact would not consent to setting aside the Dismissal Order absent an explanation for the delay in moving the action forward.

[10] By Endorsement of Master Jolley dated December 5, 2018, the motions were adjourned sine die on consent with the Plaintiff agreeing to pay costs of $300. Master Jolley noted in her Endorsement that the Plaintiff advised that if this motion was brought back on she would consent to the relief sought by Intact on the Undertakings Motion.

[11] This motion first came before me when Mr. Grillone’s office re-scheduled it for January 11, 2019 without canvassing dates with Intact. As set out in my Endorsement dated January 11, 2019, counsel did not file a Factum and only booked 30 minutes. Counsel from Ms. Jorge’s office attended and advised that they did not anticipate that Intact would oppose the motion and were awaiting instructions from LawPro. As further set out in my January 11 Endorsement, I adjourned this motion sine die and seized myself of the matter, directing counsel to schedule 90 minutes before me if necessary or to schedule a telephone case conference.

[12] In the interim, the Plaintiff was unaware that her action had been dismissed. She had been attempting to schedule a meeting with Mr. Grillone for some time and finally met with him on March 21, 2019. Mr. Grillone advised the Plaintiff that he had attended a meeting with a Judge and the insurance company, the matter was close to being over and a Judge was going to render a decision on her settlement by the following Friday. Mr. Grillone further advised that he had offered to settle her claim and that by the following Friday the insurance company would decide what to pay and that everything would be fine.

[13] The Plaintiff met with Mr. Grillone again on May 6, 2019. Mr. Grillone advised her that this matter was now being case managed by a Master who would resolve the case. Mr. Grillone updated her on settlement discussions and advised that a meeting was scheduled for May 15, 2019 at 2 p.m. at 393 University Avenue with the Master and the insurance company and that if Intact did not agree to pay the offer he had made then the Master would decide the amount of her settlement and she could sign a release. Mr. Grillone advised her to attend at his office at 11 a.m. on May 15, 2019 to travel to the meeting. However, the Plaintiff received a call from Mr. Grillone’s office sometime prior to May 15 advising that he was on medical leave.

[14] The Plaintiff called and attended at Mr. Grillone’s office numerous times after May 15, 2019 to inquire into the status of her action and the potential settlement. She did not receive any responses to her calls. When she attended in person she was advised that Mr. Grillone was not available but that someone would call her soon with an update.

[15] The Plaintiff finally received a call from Mr. Grillone’s office near the end of July 2019. On July 30, 2019, the Plaintiff met with Mr. Grillone’s former law clerk, Suzie Rosario. Ms. Rosario advised the Plaintiff that the information which Mr. Grillone had provided to her was false and fabricated. There had been no Judge or Master involved in her case and no settlement discussions. For the first time, the Plaintiff also learned that because Mr. Grillone failed to take a step in 2018, her action had been dismissed. Ms. Rosario further advised that Mr. Grillone was suffering from mental illness and was on medical leave and that the Plaintiff’s file was not the only one where he had made errors and given false information. Ms. Rosario also advised that LawPro would be contacted to act as her lawyer to bring her action back on and advised her to consult another lawyer because she would need to sue Mr. Grillone. Mr. Grillone’s office provided the Plaintiff with a computer disk which she was advised contained her complete file. However, LawPro counsel and current counsel later determined that it was incomplete and missing significant documentation.

[16] The Plaintiff recorded the 2 meetings with Mr. Grillone and her meeting with Ms. Rosario. The Plaintiff filed the affidavit of Nicole Grant, a Law Clerk in current counsel’s office, affirmed January 16, 2020 and an affidavit from Mr. Grillone sworn December 19, 2018. Ms. Grant states in her affidavit that the Plaintiff was unable to provide affidavit evidence due to her psychological health and that, in addition to discussions with the Plaintiff and her review of the file, she informed herself based on the recordings. Ms. Grant was cross-examined on her affidavit on February 21, 2020.

[17] This motion was then scheduled by LawPro counsel to proceed before me on August 6, 2019. However, on a telephone case conference on July 23, 2019, counsel requested time to discuss potential settlement given the recent appointment of LawPro’s counsel and I adjourned the motion to October 25, 2019. The Plaintiff retained her current counsel on September 6, 2019. On September 10, 2019, counsel put Mr. Grillone on notice of a potential professional negligence claim. Current counsel was advised of this motion by LawPro counsel on September 19, 2019. At the time, Plaintiff’s counsel was still attempting to obtain the complete file from Mr. Grillone’s office. The parties scheduled a telephone case conference before me on October 3, 2019. Counsel requested additional time to discuss a potential resolution and I granted another adjournment to December 13, 2019.

[18] Plaintiff’s current counsel obtained some additional documents from LawPro counsel and Ms. Jorge’s file. Counsel also contacted the Law Society of Ontario (“LSO”) for assistance and were advised that Mr. Grillone was no longer practicing. Counsel advises that Mr. Grillone’s practice is currently under trusteeship. The LSO forwarded requests for information and questions to Mr. Grillone however he did not respond. As a result, Plaintiff’s current counsel has been unable to reconstruct Mr. Grillone’s file or otherwise obtain a complete understanding of Mr. Grillone’s handling of this matter, particularly after March 2016.

[19] On November 20, 2019, LawPro counsel confirmed that they would not be arguing the motion. Accordingly, Plaintiff’s counsel wrote to Intact’s counsel on November 29, 2019 to request all motion materials and an adjournment so that they could prepare. Another telephone case conference was held on December 12, 2019. Over Intact’s objections, I adjourned the motion to March 12, 2020 and established a timetable.

III. The Law and Analysis

[20] Rule 48.14 states:

(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):

1. The action has not been set down for trial or terminated by any means by the fifth anniversary of the commencement of the action.

(10) The dismissal of an action under subrule (1) may be set aside under rule 37.14 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[21] Rule 37.14 of the Rules of Civil Procedure states:

(1) A party or other person who,

(c) is affected by an order of a registrar,

may move to set aside or vary the order, by a notice of motion that is served forthwith after the order comes to the person’s attention and names the first available hearing date that is at least three days after service of the notice of motion.

(2) On a motion under subrule (1), the court may set aside or vary the order on such terms as are just.

[22] There are four (4) factors which the court must consider when determining whether to exercise its discretion to set aside a Registrar’s dismissal order (Prescott v. Barbon, 2018 ONCA 504 at para. 14). These factors were first set out by Master Dash (as he then was) in Reid v. Dow Corning Corp., [2001] O.J. No. 2365 (S.C.J.):

“1.Explanation of 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 as set out in the status notice. She must satisfy the court that steps were being taken to advance the litigation toward trial, or if such steps were not taken to explain why. For example the complexities of the case and the number of parties may have required significantly more time to move the action toward trial, or the delay was caused by interlocutory matters or appeals. The plaintiff could explain that the action was stalled due to the inattention or negligence of her solicitors which was contrary to her own instructions or expectations. It is absolutely essential that the plaintiff lead satisfactory evidence that she personally always intended the action to proceed to trial without delay, that she did not assent to the delay, and that she always reasonably assumed it was so proceeding or made appropriate inquiries of her solicitors. If either the solicitor or the client made a deliberate decision not to advance the litigation toward trial then the motion to set aside the dismissal will fail.

2.Inadvertence in Missing the Deadline: The plaintiff or her solicitor must lead satisfactory evidence to explain that they always intended to set the action down within the time limit set out in the status notice, or request a status hearing, but failed to do so through inadvertence. In other words the penultimate dismissal order was made as a result of inadvertence.

3.The Motion is Brought Promptly: The plaintiff must demonstrate that she moved forthwith to set aside the dismissal order as soon as the order came to her attention.

4.No 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. The court takes note that witnesses' memories generally tend to fade over time and that sometime it is difficult to locate witnesses or documents. However to bar the plaintiff from proceeding with her action on the ground of prejudice, the defendant must lead evidence of actual prejudice. This might include evidence of specified documents lost over time, or destroyed following a dismissal, or of specific witnesses who have died, or have disappeared and the defendant has been unable to locate them with due diligence. While litigation is outstanding the defendants must take care to obtain and preserve evidence.” (Reid at para. 41)

[23] The Plaintiff is not required to satisfy each of the 4 factors. Rather than applying a rigid test, the court must take a contextual approach weighing all relevant factors to determine the order that is just in the circumstances of the particular case (Scaini v. Prochnicki, 2007 ONCA 63 at paras. 21-28; Prescott at para. 15). The Court of Appeal provided further guidance in Habib v. Mucaj, 2012 ONCA 880:

“[5] There are four well established factors to consider when deciding to set aside an order to dismiss an action: (i) explanation of the litigation delay - a deliberate decision not to advance the litigation will usually be fatal; (ii) inadvertence in missing the deadline - the intention always was to set the action down within the time limit; (iii) the motion is brought promptly - as soon as possible after the order came to the party's attention; and (iv) no prejudice to the defendant - the prejudice must be significant and arise out of the delay: Reid v. Dow Corning Corp. (2001), 11 C.P.C. (5th) 80 (Ont. Div. Crt.).

[6] No one factor is necessarily decisive of the issue. Rather, a "contextual" approach is required where the court weighs all relevant considerations to determine the result that is just. …”

[24] The Court of Appeal has also provided guidance with respect to the balance between having matters determined on their merits and having them tried expeditiously:

“Expeditious justice must be balanced with the public interest in having disputes determined on their merits. Where, despite the delay, the defendant would not be unfairly prejudiced should the matter proceed for resolution on the merits, according the plaintiff an indulgence is generally favoured.” (Marché d'Alimentation Denis Thériault Ltée. v. Giant Tiger Stores Ltd. (2007), 2007 ONCA 695, 87 O.R. (3d) 660 (O.C.A.) at para. 34)

[25] The Court of Appeal has held that the general preference for determining matters on their merits is stronger where there is delay due to an error or inadvertence of counsel:

“The court's preference for deciding matters on their merits is all the more pronounced where delay results from an error committed by counsel. As the court stated in Habib, at para. 7, "[O]n a motion to set aside a dismissal order, the court should be concerned primarily with the rights of the litigants, not with the conduct of their counsel." In Marché, Sharpe J.A. stated, at para. 28, "The law will not ordinarily allow an innocent client to suffer the irrevocable loss of the right to proceed by reason of the inadvertence of his or her solicitor" (citations omitted). (H.B. Fuller Company et al. v. Rogers (Rogers Law Office), 2015 ONCA 173 at para. 27)

[26] In Graham v. Vandersloot, 2012 ONCA 60, the Court of Appeal stated:

“[10] Finally, while the motion judge was justified in observing that the medical assessments should have been arranged prior to May 2010, she gave undue weight to the appellant's lawyer's failure to do so when all of the foregoing factors are taken into consideration. As Hambly J. noted [at para. 15] when granting leave to appeal to the Divisional Court [ [2011] O.J. No. 495, 2011 ONSC 377 ] in this matter, "the often applied principle that the sins of the lawyer should not be visited upon the client applies in this case". This principle was enunciated by this court in Halton Community Credit Union Ltd. v. ICL Computers Canada Ltd., [1985] O.J. No. 101, 8 O.A.C. 369 (C.A.), at para. 11:

Undoubtedly counsel is the agent of the client for many purposes . . . but it is a principle of very long standing that the client is not to be placed irrevocably in jeopardy by reason of the neglect or inattention of his solicitor, if relief to the client can be given on terms that protect his innocent adversary as to costs thrown away and as to the security of the legal position he has gained. There may be cases where the plaintiff has so changed his position that this is impossible.

[11] This is such a case, in my opinion. There is nothing to indicate that a further adjournment of six months would have in any way affected "the security of the legal position [the respondents had] gained" or changed their position in any way that could not be compensated for in costs. Mr. Black submitted that it is inaccurate to say the appellant was "placed irrevocably in jeopardy" by reason of the adjournment refusal and the dismissal of the action, because she has other remedies open to her, namely, a potential claim against her solicitor. I am not prepared to say that she should be required to resort to such a remedy in the circumstances of this case.

[12] Apart from the understandable frustrations experienced by presiding judicial officials and opposing parties over delays in the processing of civil cases, it is the overall interests of justice that, at the end of the day, must govern. Perell J. expressed this sentiment well in Ariston Realty Corp., at para. 38:

In my opinion, a concern for the principles of natural justice and the appearance of justice being done explains why, perhaps to the chagrin of those opposing adjournments and indulgences, courts should tend to be generous rather than overly strict in granting indulgences, particularly where the request would promote a decision on the merits. This liberality follows because it is in the public interest that whatever the outcome, a litigant should perceive that he or she had their day in court and a fair chance to make out their case.” (Graham at paras. 10-12)

[27] For the reasons set out below, I conclude that it is just in the circumstances to set aside the Dismissal Order.

[28] With respect to the first Reid factor, the Plaintiff is required to provide an “acceptable”, “satisfactory” or “reasonable” explanation for the delay (Carioca’s Import & Export Inc. v. Canadian Pacific Railway, 2015 ONCA 592 at para. 45). In determining what constitutes an adequate explanation, the totality of the circumstances must be examined having regard to the competing interests at stake and the interests of justice (3 Dogs Real Estate Corp. v. XCG Consultants Ltd., 2014 ONSC 2251 at para. 37). A plaintiff bears the primary responsibility for the progress of an action and though there may be situations where the defendant’s conduct may be relevant, there is no burden on the defendant to explain the delay or move the action to trial (Prescott at para. 30). In assessing the explanation, the court is to consider the overall conduct of the litigation, not undertake a month-by-month review (Carioca’s at para. 46).

[29] I am satisfied that the Plaintiff has provided a satisfactory explanation for the delay in not setting the action down in a timely manner. While evidence directly from the Plaintiff would have been preferable, it is not fatal to the Plaintiff’s explanation and I accept her evidence as filed through Ms. Grant’s affidavit on which Ms. Grant was cross-examined.

[30] The primary period of delay requiring explanation is after the Plaintiff’s examination for discovery in March 2016 until October 2018 when Mr. Grillone received the Dismissal Order and he and Ms. Jorge took steps to bring this motion. Up until this time, there was some progress in the litigation, including the production of documents and the completion of examinations for discovery (the Plaintiff has elected not to examine a representative of Intact). It was also reasonable to advance the Related Action, including the completion of productions and examinations for discovery (which included 2 examinations for discovery of the Plaintiff) and to pursue settlement discussions. Settlement of the Related Action carried potential benefits and efficiencies for the present action, a related coverage claim (Bank of Montreal v. Papadogambros, 2013 ONSC 1941 at para. 7; Apotex Inc. v. Relle, 2012 ONSC 3291 at para. 39). In acknowledging the benefits of pursuing the Settlement, I do not condone Mr. Grillone’s failure to notify Intact of the mediation and settlement discussions.

[31] The Plaintiff faces significant challenges in explaining the delay after March 2016. Mr. Grillone did not keep her updated regarding the status of her action, misled her and did not maintain a proper file. This makes it difficult, if not impossible, for her to fully explain the delay leading to the Dismissal Order. There is limited evidence as to what took place during this period of 2.5 years other than limited discussions regarding the Related Action and inquiries about mediation initiated by Intact and Intact’s changes of lawyers. While it is not helpful that more efforts were not made to ask Ms. Jorge, it is apparent that Plaintiff’s current counsel made significant efforts to piece together Mr. Grillone’s file. In addition to Mr. Grillone’s and Ms. Jorge’s offices and LawPro counsel, Plaintiff’s current counsel inquired through the LSO which passed on these inquiries to Mr. Grillone. Notwithstanding these efforts, Plaintiff’s counsel has been unable to obtain or reconstruct the entirety of Mr. Grillone’s file which prevents the Plaintiff from providing a full explanation as to what occurred. Given Mr. Grillone’s illness, the fact that he is no longer practicing, his non-response to the LSO’s inquiries and the placing of his practice into trusteeship, this is not surprising.

[32] The state of Mr. Grillone’s files might have been mitigated to some extent had he accurately and properly kept the Plaintiff updated as to the status of her action. As of late July 2019, 10 months after the Dismissal Order was issued, the Plaintiff genuinely believed that her action was still proceeding and that it would soon be finally resolved by settlement or court order. While more fulsome evidence is lacking, it is clear is that the Plaintiff’s unfortunate situation of having to face a dismissal with an incomplete file and no knowledge of what actually happened is a direct result of Mr. Grillone’s conduct. In assessing the Plaintiff’s explanation for the delay, the focus must remain on the Plaintiff, not her counsel. In my view, the dire position in which Mr. Grillone has left the Plaintiff is precisely the kind of scenario contemplated by the principle that the actions and inactions of counsel are not to be visited upon the client especially where it would deprive her of her right to have her action determined on the merits. In this regard, I reject Intact’s submission that the Plaintiff should have consulted Ms. Jorge as co-counsel for assistance. It is not clear that the Plaintiff knew that Ms. Jorge was co-counsel or that she ever had any dealings with her. The evidence suggests that Mr. Grillone, as the lawyer of record, was her only point of contact, and I am satisfied that as her counsel of record, she was entitled to and did reasonably rely on him.

[33] Intact submits that the Plaintiff’s conduct in 2019 after the Dismissal Order was issued is not relevant to my analysis. This ignores the broader context, namely, that because of Mr. Grillone’s conduct, the Plaintiff had been operating under an honest but mistaken belief that her action was still progressing before and after the issuance of the Dismissal Order in October 2018. For similar reasons, I also conclude that the Plaintiff always intended to pursue this action. I reject Intact’s submission that the Plaintiff is relying on bald assertions being advanced by her counsel unsupported by evidence that she always intended to pursue her action as in Prescott and Muscaj v. Urszula, 2018 ONSC 5427. Unlike these cases, my conclusions are based on evidence of the Plaintiff’s conduct.

[34] As the Plaintiff unsuccessfully took the initiative to secure a meeting with Grillone in early 2019 (and perhaps sooner), she was unaware that her action had been dismissed. When she finally met with him on March 21, 2019 and May 6, 2019, his misrepresentations and fabrications led her to believe that settlement or resolution of some kind was imminent. Consistent with her understanding, at no time did Mr. Grillone advise her that the action had been dismissed. After being advised that Mr. Grillone was on medical leave and that the fictitious May 15 meeting was not proceeding, she continued to call and show up at Mr. Grillone’s office seeking an update until she finally met with Ms. Rosario on July 29, 2019, some 2.5 months later. This is not the conduct of someone who does not intend to pursue her action. To the contrary, these are the actions of someone who fully intended to pursue the litigation through to a settlement or disposition. While these events took place after the Dismissal Order was issued, it reflects her honest belief all along that her action was proceeding even before her first meeting with Mr. Grillone in March 2019. In this regard, I conclude that the Plaintiff reasonably held the belief that her action was proceeding which was consistent with her reasonable expectations of what steps her counsel was taking on her behalf (McNeill v. Sun Life Assurance, 2019 ONSC 4351 at para. 75; Reid at para. 41).

[35] Even if I had concluded that the Plaintiff did not satisfy the first Reid factor, given my conclusions on the other factors and a contextual analysis, it would not change my ultimate conclusion that justness requires the Dismissal Order to be set aside.

[36] I also conclude that the second Reid factor favours the Plaintiff. This is based on my conclusion above that the Plaintiff always intended to set this action down for trial together with my finding that the failure to do so was inadvertent. I do not arrive at this conclusion on the basis of Mr. Grillone’s statements in his affidavit that his failure to set the action down for trial was inadvertent and that he intended to seek a timetable and extend the set down date. Further, although Ms. Jorge wrote to Intact’s counsel to schedule a motion to extend the set down date just prior to Mr. Grillone’s receipt of the Dismissal Order, it was already past the 5-year anniversary. However, when placed in the larger context of Mr. Grillone’s overall conduct, his illness, the state of the Plaintiff’s file, the Plaintiff’s intention and all of the evidence, it supports the conclusion that his failure to do so was inadvertent. This is particularly true in the absence of any evidence of a deliberate decision by the Plaintiff not to pursue her action. In this respect, this case is distinguishable from my decision in 1st Ambuport Inc. v. McNab, 2019 ONSC 7428, relied on by Intact, where a corporate plaintiff deliberately chose not to take any steps to advance the litigation (including documentary production) for over 4 years and did not communicate with the defendants. In that case, there was also no suggestion that counsel’s conduct contributed to the dismissal order.

[37] Intact concedes that Plaintiff’s counsel moved promptly to set aside the Dismissal Order, therefore, the third factor also favours the Plaintiff.

[38] With respect to the fourth Reid factor, the Plaintiff bears the onus of demonstrating that Intact would not suffer significant, actual prejudice as a result of the overall delay if this action is permitted to proceed (1196158 Ontario Inc. v. 6274013 Canada Ltd., 2012 ONCA 544 at para. 32). The prejudice at issue is Intact’s ability to defend the action and present its case at trial as a result of the Plaintiff’s delay, not due to the passage of time (Carioca’s at para. 57; H.B. Fuller at para. 37; Abou-Naoum v. Leon’s Furniture Ltd., 2016 ONSC 7341 at para. 66). A plaintiff’s evidence should identify the important witnesses and indicate whether or not they remain available to give evidence or whether their evidence and important documentary evidence has been preserved (Martin v. John Doe, 2017 ONSC 6955 at para. 33). A moving party’s bald assertion that there is no evidence of prejudice to the defendant is inadequate (McNeill at para. 20; MDM Plastics Ltd. v. Vincor International Inc., 2015 ONCA 28 at para. 26). Similarly, the Court of Appeal has stated the following regarding a responding party’s general assertion that witnesses’ memories fade over time:

“I do not accept that speculation that a case may depend in part on oral evidence, coupled with the assumption that witnesses' memories generally fade over time will, without more, prevent a plaintiff from satisfying the prejudice prong of the test. Counsel routinely address the reality of the passage of time in the litigation process by collecting and producing documents, undertaking oral examinations for discovery and taking witness statements. There are other methods under the rules to preserve evidence that may disappear or be lost before trial.” (Carioca’s at para. 76)

[39] In my view, the Plaintiff has met her onus to establish that Intact would not suffer actual prejudice if this action is permitted to continue. This is a coverage claim where liability is not at issue and productions and examinations for discovery have been completed. Additionally, documents were produced and the Plaintiff was examined for discovery twice in the Related Action. If a witness is required, the Plaintiff’s passenger at the time of the accident is available. While I have some concerns that 33 of 34 undertakings appear to be outstanding, notwithstanding that Intact brought the Undertakings Motion, neither counsel could advise the court with much clarity what information is outstanding or may be missing. Intact submits that it is unlikely that many key medical and income loss records remain available given the passage of over 10 years. As best as I can conclude from the record and counsel’s submissions, some treatment records have not been produced however, tax returns, decoded OHIP summaries and records from the Plaintiff’s family doctor should be available. In any event, while the nature and extent of the Plaintiff’s injuries are at issue, I do not accept Intact’s general submissions regarding the unavailability of witnesses and documents and the fading of memories which are speculative and the kinds of assertions which are insufficient to establish actual prejudice. Once the undertakings have been resolved and mediation is completed, which should be possible without further undue delay, this matter can be set down for trial.

[40] Intact also submits that it has suffered actual prejudice because it has lost the ability to bring subrogated claims against the Defendants in the Related Action pursuant to section 278(1) of the Insurance Act (Ontario) and OPCF 44R due to the Plaintiff’s failure to add Intact as a party to the Related Action and agreeing to the Settlement without its consent. I reject this submission. To the extent to which any prejudice has resulted from the Settlement, it arises from the failure of Plaintiff’s counsel to add Intact as a party and/or notify it of settlement discussions and mediation and not from the Plaintiff’s delay in advancing the litigation. Accordingly, it does not constitute actual prejudice for the purposes of this motion.

[41] Intact further argues that because the Plaintiff entered into the Settlement without its consent, the Plaintiff has no cause of action against Intact and I should dismiss this action. Intact’s counsel was unable to refer me to any case law which would support the dismissal of the Plaintiff’s claim based on the merits on a motion to set aside a Registrar’s dismissal order, arguing only that it would be more efficient than having to wait to bring a summary judgment motion. I reject this argument in its entirety. To dismiss the action on this basis would be contrary to the established factors applicable to this motion where the merits are not at issue and the focus is on the conduct of the action and potential prejudice. The merits will be properly considered at trial or on a summary judgment motion.

[42] Having considered all of the relevant factors and circumstances and undertaken a contextual analysis, I conclude that the just result in the circumstances is for the Dismissal Order to be set aside. This result is consistent with a balancing of the parties’ respective interests and reflects the court’s general preference that in the absence of actual prejudice the Plaintiff should be granted an indulgence so that her action can be determined on the merits. Given the conduct of Plaintiff’s counsel which put her in the present circumstances, it is even more important that an indulgence be granted so that her counsel’s conduct does not deprive her of her day in court especially when any prejudice suffered by Intact can be compensated for in costs. To do otherwise would be contrary to the long-standing principle set out in Graham and other cases that the client should not be placed irrevocably in jeopardy if, as is the case here, relief can be given to the client on terms which also protects the innocent defendant in costs and for positions taken in the litigation.

IV. Disposition and Costs

[43] Order to go setting aside the Dismissal Order. I would typically impose a timetable, however, given the ongoing COVID-19 pandemic and the state of the Plaintiff’s file, I leave it to counsel to discuss one. Suffice to say, the Plaintiff, as agreed, should provide answers to her outstanding undertakings to the extent she has not done so and the parties should attend mediation as soon as reasonably possible. If the parties are unable to agree on a timetable for all remaining steps in this litigation including a set down date, they may schedule a telephone case conference with me to speak to one.

[44] If the parties cannot agree on the costs of this motion, they may file written costs submissions not to exceed 3 pages (excluding Costs Outlines) through the Masters’ Administration Office on a timetable to be agreed upon by counsel.

Released: June 29, 2020

Master M.P. McGraw