COURT FILE NO.: CV-14-501607

DATE: 20200831

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

THE ESTATE OF DONNA S. FARRAGE, DECEASED, BY HER EXECUTOR WILLIAM FARRAGE, WILLIAM FARRAGE, RIYAD FARRAGE, ANTON FARRAGE, NICHOLAS FARRAGE and NICOLE FARRAGE Plaintiffs (Respondents)

– and –

DR. JOAN WENDY D'ANDREA, DR. RAYMOND JOHN OSBORNE, DR. LUC ROELAND CLEMENS WILLEM VAN LONKHUIJZEN and SUNNYBROOK HEALTH SCIENCES CENTRE Defendants (Appellants)

– and –

DYNACARE GAMMA LABORATORY PARTNERSHIP Third Party (Appellant)

Mitchell Wine, for the Plaintiffs (Respondents)

Paul Erik Veel and Scott Azzopardi for the Defendants (Appellants), Dr. Joan Wendy D’Andrea and Dr. Raymond John Osborne Erica Baron, and Simon Cameron for the Defendants (Appellants), Dr. Luc Roeland Clemens Willem van Lonkhuijzen Victoria Cistrone, for the Defendant (Appellant) Sunnybrook Health Sciences Centre Ryann Atkins, for the Third Party (Appellant) Dynacare Gamma Laboratory Partnership

HEARD: July 17, 2020

SANFILIPPO J.

REASONS FOR DECISION

Overview

1The Rules of Civil Procedure require that an action be set down for trial within five years. This requirement balances two important principles. First, the strong public interest in promoting the timely resolution of disputes, because “timeliness of adjudication is one measure of the health of a justice system.”¹ Second, the strong interest in having civil disputes determined on their substantive merits. The Rules must be applied in a way that is mindful of both objectives.²

2On April 4, 2014, Donna S. Farrage initiated this action alleging medical malpractice by the defendant physicians and vicarious liability on the part of the defendant hospital. She pleaded that her family physician caused delay in the diagnosis of her cancer by not reporting on a positive screening test result, and that the surgeons omitted to perform one of the procedures planned to address her illness. Her husband and children brought claims derivative to hers. Ms. Farrage died on September 29, 2015. On December 4, 2015, her Estate continued this action on her behalf.

3The plaintiffs did not set this action down for trial by the fifth anniversary of its issuance. The Rules provide that this action shall be dismissed by the Registrar on its anniversary date unless, absent agreement to an extension which the defendants refused to provide, the plaintiffs bring a motion for a status hearing to obtain an order extending the time to set the action down for trial.

4The plaintiffs brought such a motion. By Reasons for Decision rendered January 17, 2020, Master D.E. Short granted the plaintiffs’ motion, and issued an Order extending the time to set this action down for trial by 12 months and awarded costs of the motion to the plaintiffs: Farrage v. D’Andrea, 2020 ONSC 2 (“Decision”). The defendants brought this Appeal from the Master’s Decision and asked that I set aside his Order and dismiss this action.

5For the reasons that follow, I accept the Appellants’ submission that the Master’s Decision was not sustainable. Rather than remit the motion to a Master for a new hearing, I determined the motion on the authority of s. 134 of the Courts of Justice Act,³ and affirm the Master’s Order to extend the time for the plaintiffs to set this action down for trial, but on my reasons, which differ from those of the Master. I set aside the Master’s Order of costs of the motion to the plaintiffs and order, instead, that no party shall receive an award of costs.

I. RULE 48.14 – DISMISSAL OF AN ACTION FOR DELAY

6Rule 48.14(1) provides that the Registrar shall dismiss any action that is not set down for trial within five years after it is started, as follows:

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):

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.

7This action was commenced by Notice of Action issued on April 4, 2014, supported by a Statement of Claim issued on May 1, 2014. In accordance with Rule 48.14(1), this action was subject to dismissal by the Registrar on April 4, 2019.

8Rule 48.14(4) provides that subrule 48.14(1) does not apply if, at least thirty days before the fifth anniversary date, a party files a timetable, signed by all parties, that identifies the steps to be completed for the action to be set down for trial, the dates by which those steps will be completed and sets a date, no more than two years after the anniversary date, by which the action will be set down for trial. The parties must also file a draft order establishing the timetable.

9None of this happened. The action was not set down for trial. The plaintiffs did not seek the consent of the defendants to a timetable for an extension of the time until March 8, 2019: less than a month before the administrative dismissal date. The defendants refused.

10Rule 48.14(5) provides that where the parties do not consent to an extension and a timetable, any party may, before the expiry of the applicable five-year period, bring a motion for a status hearing. Rule 48.14(7) provides that at the status hearing, the plaintiff “shall show cause” why the action should not be dismissed for delay, as follows:

48.14(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 … and order that it be set down for trial … within a specified time,

(ii) adjourn the status hearing on such terms as are just,

(iii) [not applicable], or

(iv) make such other order as is just.

[Emphasis added]

11I have highlighted two elements of Rule 48.14(7) to emphasize two important points. First, the burden to satisfy the court that the action should be allowed to proceed is squarely on the plaintiff. Second, the relief that the court may grant under this rule is in exercise of its discretion.

12The plaintiffs brought a motion for a status hearing, under Rule 48.14(7). The plaintiffs’ motion was heard by the Master on August 15, 2019.

II. THE MASTER’S DECISION

13The Master identified that this medical malpractice case focusses principally on two claims. First, the delay of some seven months in the reporting to Ms. Farrage of an abnormal positive specimen taken as a Pap smear on a routine screening test on September 23, 2011. Second, the omission of Ms. Farrage’s surgeons to complete all components of the surgery conducted on May 28, 2012 further to her diagnosis of cancer.

14The Master noted that this action was procedurally required to be set down for trial by April 4, 2019. It was not. He analyzed why, and whether the delay caused non-compensable prejudice to the defendants.

15The Master found that the defendants delivered their statements of defence by June 21, 2015, with the benefit of the production of the hospital records by the defendant Sunnybrook Health Sciences Centre (the “Hospital”) on November 6, 2014. In the three years and ten months from the defendants’ delivery of their statements of defence to the fifth-year anniversary of this action, the plaintiffs did not deliver an affidavit of documents or discovery plan, did not deliver their productions and did not schedule examinations for discovery The plaintiffs explained that this time had been impacted by Ms. Farrage’s death and the family’s grieving from it, and was consumed in the assembly of extensive medical records and in the search for a medical expert to provide opinion evidence. The plaintiffs gathered and delivered Ms. Farrage’s voluminous medical records on May 22, 2019, after this motion for a status hearing was launched, and after extensive and regular periodic follow-up by the defendants, much of which went unanswered.

16The Master accepted the plaintiffs’ explanation for the delay and was satisfied that there would be no non-compensable prejudice to the defendants if the action were allowed to proceed. He stated that even if he was wrong in either of these determinations, he would nonetheless allow the action to proceed on the basis of his contextual analysis of all relevant factors.

17The Master exercised his discretion to extend the time for this action to be set down for trial in order to permit this action to be determined on its merits, as opposed to dismissal without adjudication. The Master granted the plaintiffs an extension of twelve months after the decision of this Court is rendered (and any appeal is determined), to set this action down for trial. The Master also awarded the plaintiffs costs in the amount of $15,000, all inclusive, payable by the defendants jointly and severally.

18The Defendants contend, in this Appeal brought pursuant to section 17(a) of the Courts of Justice Act, that the Master erred by basing his Decision on an incorrect application of the proper test, and by exercising his discretion on wrong principles and a misapprehension of the evidence resulting in palpable and overriding errors.

III. STANDARD OF REVIEW

19The parties did not dispute the standard of review on this Appeal.

20A decision of a master to dismiss an action for delay pursuant to Rule 48.14(7), or to decline to do so and set a timetable for its progression to trial, is discretionary. In the absence of an error of law or principle or a palpable and overriding error of fact, the Master’s Decision is entitled to significant deference on appeal. The Decision may be set aside if the Master made an error of law, which is reviewed on a correctness standard, or exercised his discretion on the wrong principles or misapprehended the evidence resulting in a palpable and overriding error.⁴

21The Appellants contended that the Master committed each of these errors. The Respondents submitted that his Decision was made without error and is entitled to deference. I will now explain my analysis of these positions.

IV. ANALYSIS

22At a status hearing convened under Rule 48.14(7), the plaintiffs have the burden (“shall show cause”) to show why their action should not be dismissed for delay, according to the following conjunctive two-part test: (1) the plaintiffs must show an acceptable explanation for the delay, and; (2) the plaintiffs must satisfy the court that if the action were allowed to proceed, there would be no non-compensable prejudice to the defendants.⁵

23The Appellants submitted that the Master misstated the applicable two-part test and, even if properly stated, did not apply the test correctly.

A. Did the Master Make an Error of Law by Applying the Wrong Legal Standard?

24I will assess first whether the Master stated the correct two-part test. The Appellants submitted that the Master’s statement of the two-part test at para. 2 of his Decision was flawed:

The test established by the jurisprudence requires a reasonable explanation for the delay and proof that the extension of time will not unreasonably prejudice the defendants.

25The second part of the test stated by the Master is different than the second part established by the case law in two ways: the threshold is not that the defendants be subject to “unreasonable prejudice” but rather that the defendants sustain “non-compensable prejudice”. Further, the mere presentation of “proof” is not in itself sufficient to meet the test unless the Court finds that the “proof” is sufficient to satisfy the Court that there is no non-compensable prejudice.

26However, the Master accurately set out the correct two-part test in paragraph 83 of the Decision. Considering the entirety of the Decision, I conclude that notwithstanding the imprecision in articulating the correct test in para. 2 of his Decision, the Master identified the correct two-part test that governs whether a Court should exercise its discretion to dismiss an action in a status hearing convened under Rule 48.14(7).

27I turn now to the Appellants’ submission that even if the Master identified the correct test, he erred by not applying the two-part test correctly. I accept this submission and conclude that the Master erred in his application of the two-part test. For reasons that I will now explain, I reach this conclusion on either a correctness standard as an error of law or as a palpable and overriding error as a question of mixed fact and law.

28The Master stated that the two-part test required a “contextual analysis.”⁶ By this he meant that even if only one of the two parts of the two-part test is satisfied, he could nonetheless grant the relief sought by the plaintiffs if he was satisfied, in the exercise of his discretion, that it was fair and just and in the interest of justice to do so. This is seen from the Master’s adoption of Master Dash’s reasoning in Koepke v. Webster, at para. 88 of his Decision:

I agree with my former colleague, Master Dash, who held that “the plaintiff need not rigidly satisfy both aspects of the test” and that there will be some cases when a plaintiff can show cause that on the whole, it would be unfair for the action to be dismissed.

29However, in Deverett Professional Corp. v. Canpages Inc., Master Graham rejected the opinion of Master Dash that the Master relied upon.⁷ On appeal, the Divisional Court upheld Master Graham, finding that prior cases that applied the two-part test in a flexible manner were overtaken by appellate authority.⁸ I see no indication in the record that these decisions were brought to the Master’s attention. The plaintiffs relied instead on Kerr v. CIBC World Markets Inc., wherein the Divisional Court referred to Master Dash’s finding in Koepcke but did not apply it because both parts of the two-part test were established.⁹ Later, in Cascadia Fine Art Limited Partnership v. Gardiner Roberts LLP, the Divisional Court affirmed its findings in Deverett and made clear that there is no “third step” in the test under Rule 48.14(7).¹⁰

30Contrary to these principles, the Master stated that a “contextual analysis” allowed him to weigh or balance competing interests between the parties in addition to assessing whether the two parts of the test had been satisfied. This is seen in para. 55 of the Decision, as follows:

In meeting my obligation to construe the Rules liberally in order to secure the just, most expeditious and least expensive determination of this proceeding on its merits, I have weighed the need to provide directions that are proportionate to the importance and complexity [of] the issues and to the matter amount involved to each of the parties in this proceeding. It appears to me that there would be significantly more harm to the plaintiffs if I were not to grant their motion, than any prejudice that might be suffered by the individual defendants or Sunnybrook.

31A merits analysis is not ordinarily considered under Rule 48.14, unless the evidence is clear and factually unchallenged.¹¹ The court can consider the nature of the claim and the factual circumstances underlying it as part of its contextual assessment – to assist in framing the exercise of the court’s discretion – but there is no requirement for summary assessment of the merits of the allegations. This point was not in dispute in this case as the parties did not lead merits-based evidence, including expert evidence, and the plaintiffs’ counsel refused to allow cross-examination of Mr. Farrage on the merits of his claim on the basis that it was irrelevant to this motion.

32The Master’s inquiry into the merits led him to consider the effect of the Apology Act, 2009, on Dr. Osborne’s disclosure to Ms. Farrage that one of the planned surgical procedures, the omentectomy, had not been performed.¹² The parties had not raised this issue, had not filed materials in regard to it and did not have an opportunity to make submissions on the impact of this statute. They did not consider, in my view appropriately, that it was relevant.

33The court’s inquiry on a motion under Rule 48.14(7) must be whether both elements of the two-part test were satisfied. The Master concluded that both parts of the two-part test were satisfied, but in his alternative finding stated that it was open to him to grant the plaintiffs’ relief even if only one part of the test had been proven:

In the present matter I am satisfied that both factors have been met. Moreover, if I am wrong in that determination, I am fully satisfied on an overall contextual basis, there is no doubt that this action should be allowed to proceed.¹³

34The Master explained that a “contextual analysis” allowed him to find in favour of the plaintiffs without the rigid necessity to establish both parts of the two-part test. However, a survey of appellate jurisprudence shows that while contextual analysis is applicable to the Court’s assessment of each of the two constituent elements of the two-part test, the test is conjunctive and both parts must be proven. I will explain.

35On motions to set aside a Registrar’s administrative dismissal of an action under now-repealed sections of Rule 48.14 and Rule 37.14(1)(c), the Divisional Court developed a four-part test that came to be known as the Reid factors, taking the name of the case in which the test was conceived: Reid v. Dow Corning Corp.¹⁴ In 2007, in Scaini v. Prochnicki, the Ontario Court of Appeal heard an appeal from a motion judge’s decision to refuse to set aside an administrative dismissal because all four of the Reid factors had not been established.¹⁵ The Court of Appeal held that the motion judge had erred by requiring strict and rigid compliance with all of the Reid factors as opposed to taking a contextual approach. Goudge J.A. wrote:

In my view, a contextual approach to this question is to be preferred to a rigid test requiring an appellant to satisfy each one of a fixed set of criteria. … A fixed formula like that applied by the motion judge is simply too inflexible to allow the court in each case to reach the just result contemplated by the rules.

Thus, in my view, the motion judge erred in principle by requiring the appellant to satisfy each of the four criteria separately in order to succeed in setting aside the registrar’s order, without considering and weighing all the relevant factors.¹⁶

36The Ontario Court of Appeal affirmed this finding in Marché D’Alimentation Denis Thériault Ltée v. Giant Tiger Stores Ltd., again in relation to an action dismissed pursuant to the now-repealed Rule requiring action by the Plaintiff after receipt of a Notice of Action Dismissal.¹⁷ Applying the principles in Scaini, the Court emphasized that the “four Reid criteria are ‘likely to be of central importance in most cases’, but they are not exhaustive and ‘[t]he key point is that the court consider and weigh all relevant factors to determine the order that is just in the circumstances of the particular case’”.¹⁸

37Against this background, I turn to the test developed for a contested status hearing under Rule 48.14(7), such as that present in this Appeal. The test was first set out in 2008-2009 decisions of the Superior Court and of the Divisional Court.¹⁹ It was then confirmed by the Court of Appeal in 2011 in Khan v. Sun Life Assurance of Canada: the plaintiff bears the burden of demonstrating that there was an acceptable explanation for the litigation delay and that, if the action were allowed to proceed, the defendant would not suffer any non-compensable prejudice.²⁰ The Court of Appeal did not make any reference in Khan to the contextual analysis that was used in application of the Reid factors to set aside an administrative dismissal.

38The only Court of Appeal decision that the Master cites in support of the proposition that both parts of the two-part test do not need to be established in a contextual analysis in a Rule 48.14(7) motion is 1196158 Ontario Inc. v. 6274013 Canada Ltd. in which the Court of Appeal affirmed a judge’s dismissal of an action for delay at a status hearing. There, the status hearing judge dismissed the action upon determining that there was no reasonable explanation for the delay even though no actual prejudice had been demonstrated.²¹

39Sharpe J.A. instructed that the objective in cases of this nature is to balance two fundamental objectives: that civil actions should, if possible, be decided on their merits and that procedural rules should be interpreted accordingly, and that procedural rules that are designed to ensure that disputes are resolved in a timely and efficient manner can only achieve this objective if they are enforced.²² Sharpe J.A. explained as follows:

Timelines prescribed by the Rules of Civil Procedure or imposed by judicial orders should be complied with. Failure to enforce rules and orders undermines public confidence in the capacity of the justice system to process disputes fairly and efficiently. On the other hand, procedural rules are the servants of justice not its master. We must allow some latitude for unexpected and unusual contingencies that make it difficult or impossible for a party to comply. We should strive to avoid a purely formalistic and mechanical application of timelines that would penalize parties for technical non-compliance and frustrate the fundamental goal of resolving disputes on their merits.²³

40Sharpe J.A. applied these principles to each of the two parts of the test, emphasizing that test is conjunctive:

The test is conjunctive, not disjunctive. Even if the plaintiff can provide a satisfactory explanation for the delay, the action will be dismissed if there would be prejudice to the defendant. And if the plaintiff is not able to provide a satisfactory explanation for the delay, it is still open to the judge to dismiss the action, even if there is no proof of actual prejudice to the defendant.²⁴

41The Master found that the second sentence in the Justice Sharpe’s reasoning, quoted immediately above, means that it is open to the Court to apply the two-part test contextually and find that it is established even when only one of the two parts has been proven. I read the Court’s reasoning as saying the opposite: that contextual analysis is required in assessment of each of the two-parts of the test, but that the test is conjunctive. I find validation in this conclusion by review of six further decisions by the Court of Appeal on this issue.

42In Bolohan v. Hull, decided just before 1196158 Ontario Inc., and in Faris v. Eftimovski, decided in 2013 just after 1196158 Ontario Inc., the Court of Appeal affirmed the two-part test, citing its application in Khan, without any mention that a contextual analysis can permit the relaxing of one of the two elements.²⁵

43In 2014, in Kara v. Arnold, the Court of Appeal considered whether a motions judge had erred by failing to apply the “contextual” approach set out by Goudge J.A. in Scaini and referenced by Sharpe J.A. in Marché D’Alimentation to a status hearing determination of whether to dismiss an action for delay.²⁶ Blair J.A. stated there was no need to delineate between the contextual analysis set out in Scaini when it is clear that the Court’s analysis of the issue of reasonable explanation of delay will take into consideration all relevant factors:

In my view, little is to be gained by debating whether there is a bright line between the “contextual approach” and the approach enunciated in later authorities such as Faris and 1196158 Ontario Inc. v. 6274013 Canada Ltd. It seems to be evident that, in considering the reasonableness of any explanation for the delay in question, a status hearing judge will almost invariably engage in a weighing of all relevant factors in order to reach a just result.

Here, the judge at the status hearing considered all of the pertinent factors relevant to a contextual approach (as in Scaini) and the approach taken to rule 48.14 dismissals in later cases (1196158 Ontario Inc. and Faris). I do not see these authorities as inconsistent.²⁷

44The Master concluded from this passage that Blair J.A. had approved of the approach taken in Scaini wherein all elements of the applicable test – in that case the Reid factors – need not be rigidly applied.²⁸ The Master saw this as permitting the grant of relief to the plaintiffs on the Rule 48.14(7) status hearing even if they had satisfied only one part of the two-part test. This was, in my view, incorrect. The Court of Appeal’s guidance is that all pertinent factors pertaining to a contextual analysis, and the weighing of all relevant factors, can be applied to the assessment of the reasonableness of the explanation for delay and to the prejudice analysis, but that the two-part conjunctive test must be rigidly applied.

45Three subsequent decisions by the Court of Appeal show this. In Southwestern Sales Corporation Limited v. Spurr Bros., Brown J.A. affirmed that the Reid factors apply to motions to set aside administrative dismissal orders made by registrars, and the two-part test set out in Faris applies to orders at status hearings.²⁹ He applied the two-part test, emphasizing that it is conjunctive, and upheld the status hearing judge’s decision to dismiss the action because the plaintiffs had not established an acceptable explanation for the delay, without necessity to consider the second part of the test.³⁰

46The same reasoning is seen in Erland v. Ontario. There, the Court of Appeal upheld a motion judge’s decision to exercise his discretion to dismiss an action at a status hearing on the basis that the Plaintiff had not reasonably explained the delay. Having found that the Plaintiff had not shown an adequate explanation for the delay, the motion judge did not need to assess prejudice on the part of the Defendant because both parts of the two-part conjunctive test, could not be established.³¹ A similar result was reached recently in Home Town Financial (Timmins) Corporation v. Levesque.³² In each case, the Court of Appeal found that the motions judge had analyzed the factual context, including the complexity of the case and the conduct of the defendants, and had ample grounds on which to reach his conclusion that the Plaintiff had not reasonably explained the delay and that the failure of either part of the two-part conjunctive test was sufficient to dismiss the action.

47I see no support in the jurisprudence for the Master’s statement of law that a “contextual analysis” of the two-part test applicable to status hearings means that the test need not be rigidly applied but rather that relief can be granted, as a matter of discretion, to a Plaintiff who does not establish both parts.³³ The balance between the interests of the plaintiff to proceed to an adjudication on the merits and the defendant to a timely process are achieved by the plaintiff satisfying both parts of the two-part test. By incorrectly applying the applicable test the Master erred, and his reasoning is not sustainable.

48Having reached this conclusion, I do not consider that it is necessary to determine the Appellants’ further submission that the Master also erred in law by incorrectly reversing the burden of proof.

B. Did the Master Exercise his Discretion on the Wrong Principles or by Misapprehension of the Evidence, resulting in Palpable and Overriding Error?

49A court will intervene on an appeal from an order of a judge or master that is made in the exercise of discretion “only if the exercise of the judge’s discretion was based on a wrong principle, a failure to consider a relevant principle, or a misapprehension of the evidence”.³⁴ These principles guide my assessment of the Appellants’ submission that the Master’s exercise of discretion, in extending the time for this action to be set down for trial, was based on the wrong principles, and by misapprehension of the evidence.

50The Appellants submitted that the Master’s Decision was not sustainable because he relied on evidence that was not contained in the Motion Record and not argued before him, and because he did not refer to the evidence that was in the Motion Record. The Respondents do not dispute that the Master relied on evidence that was outside the record, without allowing the parties an opportunity for submission, but contended that he nonetheless exercised his discretion on proper principles. I reject this, and accept the Appellants’ submission, for reasons that I will now explain.

51The Master referred to his 2011 decision in Ornstein (Litigation Guardian of) v. Starr, wherein he commented on the role of the Canadian Medical Protective Association (“CMPA”) in providing a defence to physicians in medical malpractice cases.³⁵ The Master did not refer to Ornstein as a precedent for a principle of law. Rather, the Master referred to Ornstein to frame a concern, that he stated “continues in the present case”, that the approach taken by the CMPA in conducting the defence of the physician did not accord with its own “Strategic Plan”.³⁶ The Master then quoted from two documents that were not in the Motion Record: the CMPA’s current 2019-2022 Strategic Plan; and an article published by Professor Elaine Gibson, entitled “Is It Time to Adopt a No-Fault Scheme to Compensate Injured Patients?”³⁷

52None of this material was relevant or admissible on this motion. Evidence of the entity that affords a defence to physicians, much less an insurer’s strategic approach to provision of a defence, has no place in a motion under Rule 48.14. Further, this evidence had nothing to do with the relief sought by the defendant Hospital and the third party defendant, Dynacare Gamma Laboratory Partnership (“Dynacare”), which have no relationship with the CMPA.

53Most importantly, the Master went outside the record and found evidence in his earlier decision, evidence published by the CMPA and in an article containing the opinion of a law professor and considered this evidence without affording the parties an opportunity to make submissions. The Master’s commentary on the CMPA, which occupied three pages of his Decision, influenced his reasoning. This is seen in his conclusion that “allowing the matter to proceed would constitute a result that would be in accord with an implementation, in this case, of the goals of the CMPA concerning ‘strategic change initiatives’”.³⁸

54Courts must make their judicial decisions based only on the evidence presented in court on the record.³⁹ In Pfizer Co. v. Deputy Minister of National Revenue (Customs & Excise), the Supreme Court of Canada held that the Tariff Board had breached the rules of natural justice where it relied on two scientific publications that were not put into evidence or referred to at the hearing.⁴⁰ Pigeon J. noted, at para. 18: “It is clearly contrary to those rules [of natural justice] to rely on information obtained after the hearing was completed without disclosing it to the parties and giving them an opportunity to meet it.” I conclude that this principle applies to this case.

55The Master’s identification and use of evidence outside of the record without notice to the parties and without affording them an opportunity for submission, undermined the fairness of his Decision and caused his exercise of discretion to be based on wrong principles.

56I turn now to the Appellants’ submission that the Master did not refer to the evidence in the record, which consisted of the affidavit of William Farrage, the transcript of the cross-examination on this affidavit, evidence and undertakings supplied after, and each of the Defendants’ filed affidavits sworn by their counsel’s legal staff. Rather than refer to this evidence, the Master based his analysis on the “detailed outline of the grounds” set out in the plaintiffs’ Notice of Motion.⁴¹ The Master stated, without citing any authority, that he believed that it was “appropriate to treat the pleaded allegations as provable” on a motion under Rule 48.14(7).⁴² He did not rely on the admissions contained in the parties’ pleadings. He relied rather on the grounds stated by the plaintiffs in their Notice of Motion, which is not a pleading under Rule 25. These are “grounds to be argued” under Rule 37.06(b).

57The Master did not assess the grounds in the Notice of Motion against the admissions contained in the pleadings, the affidavit evidence filed or the cross-examination evidence. Regarding certain of the grounds accepted, the Master commented that he saw “no reason to disbelieve the assertions in the present notice of motion in this regard.”⁴³

58The Respondents argued that even though the Master did not review or weigh the evidence, he would have reached the same result had he done so because the grounds stated in the Notice of Motion tracked the allegations contained in the pleadings and the weight of the evidence. I reject this submission. By not referring to any evidence, and by relying only on the grounds in the Notice of Motion, the Master exercised his discretion on a misapprehension of the evidence. The failure to apply the evidence to his analysis amounts to a palpable and overriding error of fact.⁴⁴

59For completeness, I will provide an example of how this approach caused the Master to misapprehend the evidence material to his assessment of the explanation for delay. The Master relied on the ground stated in paragraph 33 of the Notice of Motion that counsel for the plaintiffs wrote to counsel for Dr. D’Andrea to request production of Ms. Farrage’s medical records and that, “to date, no response has been received.”⁴⁵ The factual record showed – and it was not contested on Appeal – that Dr. D’Andrea’s counsel produced Ms. Farrage’s medical records to the plaintiffs on August 25, 2017.

60The factual findings made by the Master based solely on the grounds in the Notice of Motion without engaging with the evidence affected his analysis of both the plaintiffs’ explanation for their delay, and the Defendants’ role in the delay and any resultant non-compensable prejudice.

C. Conclusions Regarding the Master’s Decision

61I conclude that the Master committed an error of law in his application of the two-part test applicable to status hearings under Rule 48.14(7). On the same analysis, I reach this conclusion even if I consider this as a question of mixed fact and law and find a palpable and overriding error. I also conclude that the Master exercised his discretion on wrong principles and by misapprehension of evidence. The Master’s Decision is thereby not sustainable.

D. The Appeal of the Cost Order

62The Appellants also appeal the Master’s cost order. The Master awarded costs to the plaintiffs on a partial indemnity basis, and after release of his Decision, fixed costs in the amount of $15,000, all inclusive, on the parties’ agreement on quantum. The Appellants appeal this cost order not only on the grounds that I have already addressed, but on an additional ground: the Master decided the issue of entitlement to costs without affording the parties an opportunity for submissions.

63The Respondents submitted that the Appellants were not entitled to appeal the Master’s cost order without leave, relying on s. 133(b) of the Courts of Justice Act, and on the statement by the Ontario Court of Appeal in Mullin v. Lagace that when an appeal “is both substantive and as to costs, leave is required for the costs component.⁴⁶ In Pollard Windows Inc. v. 12736109 Ontario Inc., the Divisional Court held that leave to appeal is required to appeal a cost order independent of the merits.⁴⁷ Where the appeal of the substantive merits is granted, the cost order falls to be determined with the merits, but where the substantive appeal is dismissed, leave to appeal is required to appeal the cost order independently.

64Here, the appeal of the cost order was brought with the appeal of the substantive issues. I found that the appeal of the substantive issues was established and that the Master’s Decision cannot be sustained. The Appellants can thereby seek a determination of the appeal of the cost order without the necessity to obtain leave.

65An appeal court should set aside a costs award on appeal only if the trial judge has made an error in principle or if the costs award is plainly wrong.⁴⁸ The Master made an error in principle in determining the issue of entitlement as to costs without affording the parties an opportunity to make submissions. This is additional to my finding, explained earlier, that the Master exercised his discretion on wrong principles. On these findings, I set aside the Master’s order on costs.

E. Powers on Appeal

66Having found that the Master’s Decision is not sustainable, on the authority of s. 134 of the Courts of Justice Act, I could order that this motion be remitted to a Master for a new hearing, or I can determine the motion on the record filed.⁴⁹ I have decided to determine the Rule 48.14 motion rather than remit it to another Master for a new hearing for reasons that I will now explain.

67First, the Motion Record, as well as all factums and supplementary submissions filed on the motion, totaling 1,000 pages, are contained in the Appeal Record.⁵⁰ I have heard submissions on them in the context of this Appeal. The parties confirmed that this is the universe of materials pertinent to the Rule 48.14 motion. It is not in the interests of the parties to incur the expense of another hearing, and it is not in the interest of the administration of justice to have yet another court consider the record on this motion. Second, the parties have spent over a year preparing and arguing the motion and this Appeal. The amount of time expended has unpredictably been compounded by the unprecedented disruption caused to regular court operations and to the parties by the COVID-19 pandemic. The pandemic also threatens to complicate the scheduling of a further hearing before a Master, and the exercise of any appeal right that might result therefrom. This passage of time would inflict a motion that seeks dismissal for delay of an action that was five years old at the time that the motion was first brought and can be avoided by determining the motion now. Third, I am mindful that in judicial regions that do not have Masters, motions under Rule 48.14 are heard by a judge.

68I will now determine the motion on the record filed.

F. Analysis of the Motion

69I will re-state the applicable principles to frame my analysis of this Rule 48.14(7) Motion. Where the plaintiffs seek to extend the deadline to set an action down for trial, the plaintiffs must show why the action should not be dismissed for delay. In order to meet this burden, the plaintiffs must satisfy the Court that (1) there is an acceptable explanation for the delay and (2) that allowing the action to proceed would not cause the Defendants to sustain non-compensable prejudice. I will consider these two elements in order.

(a) Did the Plaintiffs Establish an Acceptable Explanation for the Delay?

70Where, like here, plaintiffs have failed to prosecute an action in a manner that would allow it to be set down for trial within five years of its commencement, the first question that must be assessed is whether the plaintiffs have sufficiently explained the delay so as to allow the action to proceed.⁵¹ The focus on a Rule 48.14 status hearing is the plaintiffs’ conduct, as they have the primary obligation to move this action forward.⁵² However, the conduct of the Defendants can still have a role in my assessment of delay and how I exercise my discretion under Rule 48.14(7).⁵³

71It is not necessary to assess the five-year period on a day-to-day basis, but I will analyze stages in this action to assess where the delay occurred and the explanation for its cause.⁵⁴ While the five-year period to set this action down for trial began to run upon the plaintiffs’ issuance of their Notice of Action on April 4, 2014, the starting point for the delay that requires an explanation is the date by which the defendants delivered their statements of defence. The defendants’ submission that I should analyze the plaintiffs’ explanation for delay in the period from the initiation of this action to the delivery of statements of defence is contrary to Court of Appeal guidance on this issue.⁵⁵

72On May 21, 2015, the plaintiffs insisted that the defendants deliver their statements of defence. The Hospital, Dr. D’Andrea and Dr. Osborne took about a year to plead: the Hospital on May 29, 2015; Dr. D’Andrea and Dr. Osborne on June 1, 2015. They stated that they required medical records to plead but were provided with the Hospital records on November 6, 2014 and, of course, Dr. D’Andrea had Ms. Farrage’s medical records throughout. Dr. Van Lonkhuijzen was served later, on March 3, 2015, and delivered his statement of defence on June 21, 2015.

73Starting my analysis of whether the plaintiffs have provided a reasonable explanation for their delay on June 21, 2015, being the date by which the defendants delivered their statements of defence, results in an assessment period of three years and ten months leading to the fifth-year anniversary of this action.

(i) June 21, 2015 – December 2016

74On June 8, 2015, the plaintiffs asked the defendants for dates to schedule the examinations for discovery, stating that Ms. Farrage was not well so they should occur soon. The defendants wrote on June 11, 2015 that they would confer on available dates but did not respond by the time that Ms. Farrage died, on September 29, 2015. On October 13, 2015, the plaintiffs notified the defendants of Ms. Farrage’s passing, On December 4, 2015, Ms. Farrage’s Estate sought and obtained an Order of this Court to continue this action on her behalf.

75The plaintiffs served the Order to Continue on May 30, 2016, to all defendants except Dr. Van Lonkhuijzen, who was served on July 21, 2016 in response to his request for an indication of whether the plaintiffs intended to proceed with their action. I see no evidence in the record that addresses the delay in service of the Order to Continue on Dr. Van Lonkhuijzen. On July 8, 2016, Dr. D’Andrea issued a third party claim against Dynacare. Dynacare did not deliver its Third Party Defence until fifteen months later, on October 31, 2017.

76In the period from July 2016 to December 2016, the defendants determinedly asked the plaintiffs, through four emails sent at regular intervals, that they produce Ms. Farrage’s medical records. Counsel for the plaintiffs responded, on December 20, 2016, that the medical records would be provided as soon as they were all received.

77Mr. Farrage testified that he did not work for most of 2015 to care for Ms. Farrage, and that he and his family were devastated by her passing. He testified, further, that in 2016 he had medical treatments in Arizona for his own cancer and took time off that year to recover and to recuperate. Mr. Farrage produced evidence that throughout 2015-2016, he and his lawyers had regular contact with an oncological surgeon (42 email exchanges from October 21, 2015 to October 19, 2016) and with a gynecological pathologist (16 email exchanges from May 17, 2016 to September 13, 2016) to seek expert opinion evidence on the issues raised by this case. Mr. Farrage deposed that tissue samples, slides of biopsy from Ms. Farrage’s results and Formalin Fixed Paraffin Embedded blocks were sent from Sunnybrook to these experts during this time.

78I am satisfied that the plaintiffs have shown a reasonable explanation for the timing involved in the steps in this action during the period from its inception to December 2016.

(ii) January 2017 to October 2017

79On January 19, 2017, February 24, 2017 and March 15, 2017, the lawyer for the plaintiffs asked Dr. D’Andrea’s lawyer to produce Ms. Farrage’s medical file. On August 25, 2017, Dr. D’Andrea produced Ms. Farrage’s medical file electronically.

80I can take into account the conduct of a defendant where it has a role in the progression of an action, without reversing the onus to the defendants.⁵⁶ In order to assess whether the plaintiffs have reasonably explained the delay in progression of this action, it is fair to assess the conduct of a defendant, which I do with no criticism of the time required for Dr. D’Andrea to produce her records, considering that her treatment of Ms. Farrage spanned a 23-year period: 1991 to 2014.

81Accordingly, I find that the plaintiffs have a reasonable explanation for the eight-month period that was required from January 19, 2017 to August 25, 2017 for Dr. D’Andrea to produce Ms. Farrage’s medical records. Additionally, I accept that it would take the plaintiffs some time to review and organize these materials after receipt. On September 29, 2017, the plaintiffs’ lawyer stated that he was organizing his clients’ productions and expected to deliver them by the end of October 2017.

82I am satisfied that the plaintiffs have provided a reasonable explanation for the delay in advancing their case in the period from January 2017 to October 2017.

(iii) October 2017 to March 2019

83The Hospital wrote to the plaintiffs on November 16, 2017, requesting the production of medical records. Dr. Van Lonkhuijzen sent a similar demand on February 28, 2018. The Hospital sent renewed requests on April 18, 2018, June 15, 2018 and September 14, 2018, followed by Dr. Van Lonkhuijzen’s follow-up on October 9, 2018. I see no reply by the plaintiffs during this 12-month period. And I see no communications between the parties, at all, in the five-month period from October 2018 to March 2019.

84The failure by the plaintiffs’ counsel to respond to communications sent by the defendants, exemplified by the six such communications in the one-year period from November 16, 2017 to October 9, 2018 but also those sent earlier that did not receive a reply, is unacceptable. I do not in any manner condone the plaintiffs’ conduct in not engaging with the defendants from October 2017 to March 2019.

85Mr. Farrage deposed that during this time, the plaintiffs were attending to two litigation steps. They were seeking to identify another oncological surgeon to replace the expert that they had retained but who had resigned, unexpectedly, in early 2017. The plaintiffs asked that I accept that this expert input was critical to their preparation for examination for discovery and thereby a prerequisite to further procedural development of this action. Further, Mr. Farrage testified that he assisted his counsel throughout this period in requisitioning, assembling and organizing hundreds of pages of Ms. Farrage’s medical records from Princess Margaret Hospital and from the Arizona medical centres where Ms. Farrage had received a diagnosis and treatment, including surgery.

86Considering that the medical documents produced on May 22, 2019 were voluminous, as I will shortly describe, I accept that the task of their assembly was time-consuming. I also accept that the gathering of the documents was made more complex by the number of medical centres involved in Ms. Farrage’s care, by complications presented by the transmission of her interests in these records to her Estate, and by the cross-border nature of the document assembly. I also accept that the input of an expert oncological surgeon is important to the plaintiffs’ case.

87At the same time, the cross-examination of Mr. Farrage showed that there were no structural impediments to the plaintiffs completing their documentary production during this period with less delay. The cross-examination also showed that the plaintiffs could have attended to multiple litigation tasks simultaneously. While I accept the plaintiffs’ explanation that these steps required time, the plaintiffs have not shown that these steps could not have been completed earlier. I will nominally allot eight months of this 17-month delay period as a reasonable explanation for the completion of these tasks, which leaves nine months of unexplained delay.

(v) Events after March 2019

88On March 8, 2019, the plaintiffs sought the defendants’ consent to the issuance of an Order establishing a timetable to extend the time for setting this action down for trial to June 30, 2020. This represented a 14-month extension. All defendants refused, except the Hospital, which initially consented on terms and then took the position that the plaintiffs failed to meet the terms imposed for its consent. The plaintiffs argued that the Hospital ought to be held to its ‘consent’, and the Hospital submitted that its conditional consent was never made unconditional. There is nothing to be gained in this debate, and I decline to entertain it because it has no impact on my decision. Following the guidance of the Court of Appeal in Erland, a timetable unopposed by some – but not all – of the parties does not in any way bind the motion judge.⁵⁷

89On March 22, 2019, the plaintiffs delivered to the defendants all medical records known to them for all doctors and medical institutions involved in Ms. Farrage’s care, consisting of 15 CDs of material and a USB hard drive, in addition to the Hospital Records and Dr. D’Andrea’s medical records. These voluminous productions included the records from Ms. Farrage’s treatment in Arizona, diagnostic imaging, Humber River Hospital Records and University Health Network Records.

90While the defendants initially contended that there were three areas of continuing deficiency in the plaintiffs’ production of medical records, the inquiry diminished, in my view, to one: a decoded Ontario Health Insurance Plan summary (the “OHIP Summary”). This was requested by the defendants on April 25, 2019.

91On May 30, 2019, the plaintiffs requisitioned from the Ministry of Health a decoded OHIP Summary for a list of all government-funded health services provided to Ms. Farrage and confirmed that otherwise they had received and produced all records pertaining to Ms. Farrage’s medical treatment. The plaintiffs have since produced the OHIP Summary, which lists OHIP funded services for Ms. Farrage for a seven-year period prior to the request: specifically, from May 30, 2012 to May 30, 2019.

(vi) Reasonable Explanation for Delay

92Have the plaintiffs established a reasonable explanation for the delay sufficient to allow the action to proceed? I am satisfied that they have. I will explain why.

93I have found that the plaintiffs have provided a reasonable explanation for delay for all but some nine months of the period under assessment. While this unexplained period of delay is not condoned, it is insufficient to support the defendants’ submission that the plaintiffs have caused this action to descend into laxness. And I am mindful that my assessment is not of a perfect explanation for the delay, but an acceptable explanation for the delay.⁵⁸

94The plaintiffs did not attend to the conduct of examinations for discovery within the period of delay under analysis. I accept Mr. Farrage’s explanation of time spent in seeking to obtain expert input, and acknowledge that this is an important step, both the for the conduct of the trial and the examination process in this medical malpractice action: particularly, the issues of liability and the complex scientific evidence involved in the causation issue.

95Moreover, the assessment on a Rule 48.14(7) motion is not limited to minute arithmetic calculation of periods of unexplained delay but must look more broadly at all relevant factors. As Sharpe J.A. stated in 1196158 Ontario Inc., adopted by Blair J.A. in Kara, “[w]e should strive to avoid a purely formalistic and mechanical application of timelines that would penalize parties for technical non-compliance and frustrate the fundamental goal of resolving disputes on their merits.”⁵⁹ The challenge, Sharpe J.A. continued, “is to find the right balance between, on the one hand, the need to ensure that the rules are enforced to ensure timely and efficient justice and, on the other, the need to ensure sufficient flexibility to allow parties able to provide a reasonable explanation for failing to comply with the rules to have their disputes decided on the merits.”⁶⁰ To do so, the Court must assess the reasonableness of the plaintiffs’ explanation for delay, weighing all relevant factors to find a just result.⁶¹

96Context frames my assessment. I do not examine the merits of the plaintiffs’ claim, but I do consider context, including the complexity of the medical issues pleaded and the importance of these issues to the parties, as is apparent from the pleadings and the evidence. The plaintiffs have raised important issues pertaining to the medical care of Ms. Farrage for which they seek answers through substantive adjudication, and there is an equally important interest on the part of the defendants to be vindicated in their defence positions, on the merits.

97In weighing all relevant factors, including the impact of Ms. Farrage’s death on the progression of the action, Mr. Farrage’s illness, the volume of medical records required to be produced, the number of sources of medical reports involved, the complexity of the expert opinion evidence that the plaintiffs have pursued, and after assessing the causes attributable to the delay, I am satisfied that the plaintiffs have shown a reasonable explanation for delay.

(b) Did the Plaintiffs Establish That Allowing the Action to Proceed Would Not Cause the Defendants to Sustain Non-Compensable Prejudice?

98The burden is clearly on the plaintiffs to establish that the defendants would not sustain non-compensable prejudice if their action is allowed to proceed. Mr. Farrage deposed, and testified to his belief that all medical records have now been produced, save for records that will be obtained from Dr. Razzaq pertinent to Ms. Farrage’s medical care in the year prior to her death, and certain diagnostic imaging that he thought was within the records of the Hospital, Princess Margaret Hospital or Southwest Oncology in Arizona, all now produced. This evidence was subject to cross-examination, and I accept, for purposes of this motion only, that the plaintiffs have shown that there is no non-compensable prejudice to the defendants through unavailability of medical records. I do not foreclose, in any way, any argument that the defendants may decide to advance at trial regarding any gap that they may establish in the medical documents.

99The principal basis on which the defendants submitted that they will sustain non-compensable prejudice if this action is allowed to proceed is that they are deprived of an OHIP Summary that lists Ms. Farrage’s medical care in the period before May 30, 2012. This is because OHIP provides a listing of medical services going back seven years, and since the plaintiffs did not requisition the OHIP Summary until May 30, 2019, the medical listing goes back to May 30, 2012. The defendants submitted, and I accept, that Ms. Farrage’s medical conditions prior to May 30, 2012 are material to the issues of liability, causation and damages. However, in the circumstances of this case, I do not accept, for the purposes of this motion only, that the lack of an OHIP summary dating before May 30, 2012 constitutes non-compensable prejudice, for reasons that I will now explain.

100First, there are other sources of evidence available to the parties regarding Ms. Farrage’s medical care prior to May 30, 2012. Dr. D’Andrea was Ms. Farrage’s family physician from 1991. The Hospital records have been produced, and Drs. Osborne, Van Lonkhuijzen, Durand and others attended to Ms. Farrage at the Hospital. Mr. Farrage testified that he attended with Ms. Farrage to “98%” of her medical appointments and recalls vividly all of the stages of his late wife’s illness. In his words, “the whole circumstances have burnt it into my memory”. I accept Mr. Farage’s evidence on this point, for the purposes of this motion, recognizing that the defendants will have an opportunity to test Mr. Farrage’s evidence further on a broader record at trial.

101Second, the OHIP Summary would have provided an incomplete listing even if requisitioned earlier, as Ms. Farrage’s 2006 diagnosis of breast cancer, and resulting treatment, would have been absent from the OHIP Summary even if it had been requisitioned at the commencement of this action. The OHIP Summary would have been less limited in its historical scope had it been requisitioned earlier, but it would still not have covered the full history of medical care involved in this action.

102Third, both sides will have to cope at trial with the OHIP Summary not listing treatments prior to May 2012, not just the defendants. It is, after all, the plaintiffs’ case to prove and the defendants will be at liberty to advance positions, and seek relief, on their position that the plaintiffs had an obligation to requisition the OHIP Summary sooner. I do not foreclose, in any way, any argument that the defendants may decide to advance at trial regarding issues that they say arise from the delay in requisition of the OHIP Summary to May 2019.

103Fourth, the non-compensable prejudice to the defendants that is pertinent to my analysis is that which is caused exclusively by the plaintiffs. I am not satisfied, for the purpose of this motion only, and on the record available to me, that the cause for the late requisition of the OHIP Summary lies exclusively with the plaintiffs. The defendants had a shared procedural obligation, under Rule 29.1.03(1), to seek agreement on a discovery plan if it was their intention to obtain documentary production or oral examination of the plaintiffs, as has been shown to be the case. Had they done so, the OHIP Summary could have been sought as a component of the documentary disclosure at a far earlier stage in this action than when it was first requested in April 2019.

104And there is a final consideration. If the plaintiffs had set their action down for trial by April 4, 2019 and had thereby rendered unnecessary this motion, the defendants would have proceeded to trial with the OHIP Summary bearing its current limitations and would not have had any basis on which to ask that this action be dismissed due to any inadequacy in the OHIP Summary. The parties would simply be left to argue the limitations resulting from the timing of the requisition of this document.

105Weighing all relevant factors, I find that the plaintiffs have shown that there would be no non-compensable prejudice to the defendants if this action were allowed to proceed to trial.

(c) Conclusion – The Plaintiffs Have Shown that this Action Should Not be Dismissed for Delay

106I am satisfied that, weighing all relevant factors, the plaintiffs have shown a reasonable explanation for the delay in this action, and that the defendants will not sustain any non-compensable prejudice if it is allowed to proceed. Further, I find that the extension sought by the plaintiffs to set this action down for trial, of 12 months after this decision is rendered and any appeal determined, is proportionate. All the defendants, except Dr. Van Lonkhuijzen, took at least this long to plead, during which time the plaintiffs took no step against them and so there is a certain symmetry in allowing the plaintiffs a similar amount of time now to set their action down for trial.

107Accordingly, while a period of five years from the commencement of an action is more than enough time for most actions to be set down for trial, I am satisfied that the plaintiffs have shown that it is just and fair that an extension of 12 months be provided in this action.

(d) Costs of the Motion

108In determining the issue of entitlement to costs of the motion, I have taken into consideration that the plaintiffs are successful on their motion to extend the time for setting this action down for trial, but their delay gave rise to this motion. I have found that their conduct in not responding to the defendants’ diligent requests to move this action forward cannot be condoned. This, in my view, must be factored in my determination of costs.⁶² Further, the plaintiffs required an indulgence to proceed with their action. Courts have at times awarded no costs, or costs to the responding parties, when permitting an action to proceed on a Rule 48.14 motion.⁶³

109The defendants had reason to seek an explanation for the plaintiffs’ delay in setting this action down for trial. Further, the extensive medical records now produced by the plaintiffs were provided to the defendants only after they refused the implementation of a timetable. They had a basis to put the plaintiffs to this motion, but they were not successful in seeking a dismissal of this action.

110In all the circumstances, I exercise my discretion to order that no party shall receive an award of costs on the motion.

IV. CONCLUSION

111I conclude that the Master made errors in his application of the legal standard for the determination of a motion under Rule 48.14(7), and in the exercise of his discretion that rendered his Decision unsustainable, both on the substantive merits and in his order of costs. I determined the motion on the authority of s. 134 of the Courts of Justice Act, and affirm the Master’s Order to extend the time for the plaintiffs to set this action down for trial, but on my reasons, which differ from those of the Master. I set aside the Master’s Order of costs of the motion to the plaintiffs and order, instead, that no party to the motion shall receive an award of costs.

V. DISPOSITION

112On the reasons set out herein, I order as follows:

(a) Paragraph 1 of the Order of Master D.E. Short dated January 17, 2020 is affirmed, as follows:

“THIS COURT ORDERS that the plaintiffs shall set this matter down for trial within 12 months after the decision of this Court is rendered from the appeal commenced by the Defendants/ Responding Parties to this Order.”

(b) Paragraph 2 of the Order of Master D.E. Short dated January 17, 2020 is set aside, and in its place, I order as follows:

“THIS COURT ORDERS that no party shall receive an award of costs of this motion.”

VI. COSTS OF THE APPEAL

113I encourage the parties to confer and agree on the issue of costs of this Appeal.

114If the parties are not able to agree on the issue of costs, the parties may, by September 20, 2020, request a chambers appointment, by contacting the Chambers Appointment Coordinator or my judicial assistant, for the purpose of setting a schedule for the delivery of written submissions on costs. If no party seeks the scheduling of such a case conference by September 20, 2020, I will deem the issue of costs to have been settled.

Sanfilippo J.

Released: August 31, 2020

COURT FILE NO.: CV-14-501607

DATE: 20200831

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

THE ESTATE OF MS. FARRAGE S. FARRAGE, DECEASED, BY HER EXECUTOR WILLIAM FARRAGE, WILLIAM FARRAGE, RIYAD FARRAGE, ANTON FARRAGE, NICHOLAS FARRAGE and NICOLE FARRAGE Plaintiffs (Respondents)

– and –

DR. JOAN WENDY D'ANDREA, DR. RAYMOND JOHN OSBORNE, DR. LUC ROELAND CLEMENS WILLEM VAN LONKHUIJZEN and SUNNYBROOK HEALTH SCIENCES CENTRE Defendants (Appellants)

– and –

Footnotes

1. 1Southwestern Sales Corporation Limited v. Spurr Bros. Ltd., 2016 ONCA 590, 132 O.R. (3d) 794, at para. 9, applying to the Ontario civil justice system the principles identified in relation to the criminal justice system in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631.
2. 21196158 Ontario Inc. v. 6274013 Canada Ltd., 2012 ONCA 544, 112 O.R. (3d) 67, at para. 18.
3. 3R.S.O. 1990, c. C.43.
4. 41196158 Ontario Inc., at para. 16; Faris v Eftimovski, 2013 ONCA 360, 363 D.L.R. (4th) 111, at para. 22; Kara v. Arnold, 2014 ONCA 871, 328 O.A.C. 382, at para. 8; Southwestern Sales, at para. 6; Erland v. Ontario, 2019 ONCA 689, at para. 5; Home Town Financial (Timmins) Corporation v. Levesque, 2020 ONCA 349, at para. 14; Zeitoun v. Economical Insurance Group (2008), 2008 20996 (ON SCDC), 91 O.R. (3d) 131 (Div. Ct.), at paras. 40-41, aff’d 2009 ONCA 415, 96 O.R. (3d) 639; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.
5. 5Khan v. Sun Life Assurance Co of Canada, 2011 ONCA 650, 1 C.C.L.I. (5th) 183, at para. 1; 1196158 Ontario Inc., at para. 12; Bolohan v. Hull, 2012 ONCA 121, 99 C.C.E.L. (3d) 307, at para. 13; Faris, at paras. 11, 32 and 42; Kara, at para. 8; Southwestern Sales, at paras. 7, 13; Erland, at para. 4; Home Town Financial, at para. 5.
6. 6Decision, at para. 87
7. 72012 ONSC 5835, at para. 7, aff’d 2013 ONSC 6954 (Div. Ct.).
8. 8Deverett Professional Corp. (Div. Ct.), at paras. 6, 7 and 18, referring to Pouget v. Hynes, 2013 ONSC 487, 303 O.A.C. 289 (Div. Ct.), which was decided before Faris.
9. 92013 ONSC 7685, 316 O.A.C. 192 (Div. Ct.), at paras. 41, 76 and 90.
10. 102014 ONSC 6602 (Div. Ct.), at paras. 51-56.
11. 11Vogrin v. Ticknor, 2012 ONSC 1640, 76 E.T.R. (3d) 134, at para. 59; B & S Fragrance & Cosmetics Inc. v. Akhtar, 2016 ONSC 2320, at para. 26.
12. 12S.O. 2009, c. 3. Decision, at paras. 27-31.
13. 13Decision, at para. 92.
14. 14(2001), 11 C.P.C. (5th) 80 (Ont. S.C.), at para. 41, aff’d as to the four-pronged test (2002), 48 C.P.C. (5th) 93 (Ont. Div. Ct.), as quoted by the Court of Appeal in Scaini at para. 12: “The four criteria are as follows: (1) explanation of the litigation delay; (2) inadvertence in missing the deadline; (3) the motion is brought promptly; and, (4) no prejudice to the defendant”.
15. 152007 ONCA 63, 85 O.R. (3d) 179.
16. 16Scaini, at paras. 23, 26.
17. 172007 ONCA 695, 87 O.R. (3d) 660.
18. 18Marché D’Alimentation, at para. 20.
19. 19Savundranayagam v. Sun Life Assurance Co. of Canada (2008), 2008 54788 (ON SCDC), 67 C.C.L.I. (4th) 241 (Ont. Div. Ct.), at para. 13; Oberding v. Sun Life Financial Assurance Co. of Canada, 2010 ONSC 3303, 267, O.A.C. 120 (Div. Ct.), at para. 15; Riggitano v. Standard Life Assurance Co., 2009 23892 (Ont. S.C.), at para. 34, aff’d 2010 ONCA 70; Samborski v. Pristine Capital Inc., 2011 ONSC 3383, at para. 2.
20. 20Khan, at para. 1.
21. 211196158 Ontario Inc., at paras. 12-14.
22. 221196158 Ontario Inc., at para. 18.
23. 231196158 Ontario Inc., at para. 19.
24. 241196158 Ontario Inc., at para. 32.
25. 25Bolohan, at para. 13; Faris, at paras. 32, 42.
26. 26Kara, at para. 12.
27. 27Kara, at paras. 13-14.
28. 28Decision, at paras. 86, 91.
29. 29Southwestern Sales, at paras. 7, 12.
30. 30Southwestern Sales, at para. 24.
31. 31Erland, at paras. 4, 6 and 13.
32. 32Home Town Financial, at paras. 5, 13.
33. 33Decision, at paras. 55, 86-89 and 92.
34. 34Ettinger v. Trillium Railway Co. Ltd., 2019 ONSC 7321, 99 B.L.R. (5th) 231 (Div. Ct.), at para. 38, citing Aldo Group Inc. v. Moneris Solutions Corporation, 2013 ONCA 725, 118 O.R. (3d) 81, at para. 30.
35. 352011 ONSC 4220, 108 O.R. (3d) 380, at paras. 41-45.
36. 36Decision, at para. 52, citing Ornstein, at para. 45.
37. 37Decision, at paras. 50-54 and 56-58, citing (2016) 47: 2 Ottawa L. Rev. 303, at pp. 303-338.
38. 38Decision, at para. 56.
39. 39Hearn v. McLeod Estate, 2019 ONCA 682, at para. 30; R. v. C.D.H., 2015 ONCA 102, at para. 14; Iroquois Falls Power Corporation v. Ontario Electricity Financial Corporation, 2016 ONCA 271, at para. 62.
40. 401975 194 (SCC), [1977] 1 S.C.R. 456, at p. 463.
41. 41Decision, at paras. 15, 17, 20, 21-23, 25-26, 31, 34, 36, 42, 44 and 45.
42. 42Decision, at para. 16.
43. 43Decision, at para. 46.
44. 44Austin v. Bell Canada, 2020 ONCA 142, at para. 24.
45. 45Decision, at para. 44.
46. 46Courts of Justice Act, s. 133(b): “No appeal lies without leave of the court to which the appeal is taken, … (b) where the appeal is only as to costs that are in the discretion of the court that made the order for costs. Mullin v. Lagace, 2015 ONCA 757, at para. 8.
47. 47Pollard Windows Inc. v. 1736106 Ontario Inc., 2019 ONSC 4859, at para. 86; 2019 ONSC 5361 at para. 1 (Div. Ct.).
48. 48Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303, at para. 27.
49. 49Courts of Justice Act, s. 134: “Unless otherwise provided, a court to which an appeal is taken may, (a) make any order or decision that ought to or could have been made by the court or tribunal appealed from; (b) order a new trial; (c) make any other order or decision that is considered just.”
50. 50Joint Appeal Record, at pp. 59-1,059.
51. 51Bolohan, at para. 17.
52. 52Bolohan, at para. 17; Faris, at para. 33.
53. 53Bolohan, at para. 17.
54. 54Cascadia Fine Art Limited, at paras. 40-47; Carioca’s Import & Export Inc. v. Canadian Pacific Railway Limited, 2015 ONCA 592, 128 O.R. (3d) 143, at para. 46.
55. 55Kara, at para. 15: “[The motion judge] properly took the date of delivery of the statement of defence as a starting point for the delay that required an explanation.” See also, Southwestern, at para. 17.
56. 561196158 Ontario Inc., at para. 29; Bolohan, at para. 17.
57. 57Erland, at para. 12.
58. 58Faris, at para. 42; 1196158 Ontario Inc., at para. 32.
59. 591196158 Ontario Inc., at para. 19; Kara, at para. 10.
60. 601196158 Ontario Inc., at para. 20.
61. 61Kara, at para. 13.
62. 62Rule 57.01(1)(e).
63. 63Scaini, at para. 30; Shekhdar v. K&M Engineering, 2012 ONSC 4413 (Div. Ct.), at para. 8; Slota v. Kenora-Rainy River Districts Child and Family Services, 2019 ONSC 126, at paras. 64-65; Mollicone v. Town of Caledon, 2011 ONSC 883, at paras. 14-16.