Court File and Parties
COURT FILE NO.: CV-14-509520 MOTION HEARD: 2020-01-29 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Ronald Taylor, Plaintiff AND: TD Insurance, TD Bank Insurance Group, TD Bank Group, TD Bank Financial Group, The Toronto-Dominion Bank, TD Insurance Home & Auto, TD Insurance Meloche Monnex, Meloche Monnex, Meloche Monnex Financial Services Inc., Meloche Monnex Inc., Security National Insurance Company, Defendants
BEFORE: Master B. McAfee
COUNSEL: Ronald Taylor, In Person, Plaintiff Shanti Barclay, Counsel, for the Defendants
HEARD: January 29, 2020
Reasons for Decision
[1] The plaintiff brings a motion for a status hearing pursuant to Rule 48.14(5) of the Rules of Civil Procedure. The defendants oppose the status hearing and ask that the action be dismissed and relief in the alternative.
[2] This action arises as a result of a residential fire that occurred on August 2, 2013. The plaintiff claims against his insurer for damages with respect to the obligations of the defendants under a homeowner’s policy of insurance.
[3] The applicable rules are 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):
The action has not been set down for trial or terminated by any means by the fifth anniversary of the commencement of the action.
The action was struck off the trial list and has not been restored to a trial list or otherwise terminated by any means by the second anniversary of being struck off.
(4) Subrule (1) does not apply if, at least 30 days before the expiry of the applicable period referred to in that subrule, a party files the following documents:
- A timetable, signed by all the parties, that,
i. identifies the steps to be completed before the action may be set down for trial or restored to a trial list, as the case may be,
ii. shows the date or dates by which the steps will be completed, and
iii. shows a date, which shall be no more than two years after the day the applicable period referred to in subrule (1) expires, before which the action shall be set down for trial or restored to a trial list.
- A draft order establishing the timetable.
(5) If the parties do not consent to a timetable under subrule (4), any party may, before the expiry of the applicable period referred to in subrule (1), bring a motion for a status hearing.
(6) For the purposes of subrule (5), the hearing of the motion shall be convened as a status hearing.
(7) At a status hearing, the plaintiff shall show cause why the action should not be dismissed for delay, and the court may,
(a) dismiss the action for delay; or
(b) if the court is satisfied that the action should proceed,
(i) set deadlines for the completion of the remaining steps necessary to have the action set down for trial or restored to a trial list, as the case may be, and order that it be set down for trial or restored to a trial list within a specified time,
(ii) adjourn the status hearing on such terms as a just,
(iii) if Rule 77 may apply to the action, assign the action for case management under that Rule, subject to the direction of the regional senior judge, or
(iv) make such other order as is just.
1.04(1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.
[4] The applicable test and guiding principles were recently summarized by Justice Raikes in 1682558 Ontario Ltd. v. Salman, [2019] O.J. No. 3558 (Ont. S.C.J.) at paras. 4-6. The parties agree that the applicable test is a two-part conjunctive test. The plaintiff has the onus of demonstrating an acceptable explanation for the delay in prosecuting the action and demonstrating no non-compensable prejudice to the defendants if the action were allowed to continue.
[5] In determining this matter, I have applied the foregoing rules and the above-referenced test and guiding principles as summarized in 1682558 Ontario Ltd.
[6] I am satisfied that the plaintiff has provided an acceptable explanation for the litigation delay.
[7] A notice of action was issued on July 31, 2014. A statement of claim was filed on August 27, 2014. The notice of action and statement of claim were served on January 28, 2015.
[8] When the notice of action and statement of defence were served, plaintiff’s counsel indicated that a statement of defence was not required at that time and that the claim was issued to preserve the limitation period.
[9] Exhibit J to the affidavit of E. Cabral filed by the plaintiff contains over 300 pages of communications, including attachments, between the parties dating from August 8, 2013 to March 1, 2018. These communications dealt with issues concerning the ongoing adjustment of the loss including repair of the premises, living expenses, and contents.
[10] In or about March 2018, the defendants retained counsel and the parties engaged in the appraisal process pursuant to the provisions of the Insurance Act. An appraisal hearing took place on February 22, 2019. The Umpire’s appraisal award resulted in a payment by the defendants to the plaintiff.
[11] While the parties were in communication and issues concerning the adjustment of the loss were being addressed and throughout the appraisal process, the defendants did not object to having been granted a waiver of defence and did not object to this action not proceeding.
[12] While the defendants submit that the plaintiff ought to have obtained a formal order for a stay, the defendants also submit that they would have agreed to a stay had a formal order been sought. The defendants never raised an issue that it was their view that a formal order staying the action was required.
[13] In my view the defendants were content that this action not proceed while issues concerning the adjustment of the loss were being addressed and the appraisal process was engaged.
[14] A statement of defence was delivered on or about July 29, 2019, following a demand for same from plaintiff’s counsel dated July 26, 2019, when issues concerning timetabling for the remaining steps in this action were being addressed.
[15] The parties were in communication with respect to issues concerning the adjustment of the loss and the parties engaged in the appraisal process. The defendants were granted a waiver of defence and did not object to same. An acceptable explanation for the delay has been provided in all of the circumstances of this matter.
[16] I am satisfied that there would be no prejudice to the defendants if the action continues. Any presumption of prejudice has been rebutted. The appraisal process has now concluded. Significant material was filed for the appraisal process. The representative of the defendants involved in the adjustment of the loss is available. There is no evidence of missing documents or witnesses who are not available. The fact that the defendants were content not to defend this action for a number of years without raising any objection undermines any assertion of prejudice. There is no evidence of actual prejudice.
[17] To the extent that the defendants rely on the merits of the action and ask that all or part of the action be dismissed and/or certain pleadings be struck based on the merits, I was not referred to any case law in support of the defendants’ position that the merits are an appropriate consideration on a status hearing. I decline to consider the merits of the action and the relief sought by the defendants based on the merits.
[18] I am satisfied that the plaintiff has shown cause why the action should not be dismissed for delay. I am satisfied that it is in the interests of justice that the action continues.
[19] If the action continued, the plaintiff sought a timetable with a set down date within six months. If the action continued, the defendants sought a timetable with a set down date within one month. The defendants did not seek a timetable that included the bringing of any motions to strike pleadings or dismiss the action based on the merits.
[20] I have considered the submissions of the parties in this regard and order the following timetable:
a. Affidavits of documents shall be served on or before February 28, 2020;
b. Examinations for discovery shall be completed on or before March 31, 2020;
c. Mandatory mediation shall be conducted on or before April 30, 2020;
d. Any motions arising from examinations for discovery shall take place on or before May 15, 2020;
e. The action shall be set down for trial on or before May 29, 2020, failing which the Registrar shall dismiss the action for delay.
[21] The plaintiff did not seek costs. In the event that the action continued, the defendants sought costs in the amount of $2,000.00. I am not satisfied that the defendants are entitled to costs. The defendants originally consented to the action continuing but did not agree to the deadlines in the timetable proposed by the plaintiff. The defendants then served a responding motion record and opposed the continuation of the action. The defendants were not successful in opposing the motion convened as a status hearing. There shall be no costs payable to any party.
[22] Order to go as follows:
The action shall continue.
The parties shall comply with the following timetable:
a. Affidavits of documents shall be served on or before February 28, 2020;
b. Examinations for discovery shall be completed on or before March 31, 2020;
c. Mediation shall be conducted on or before April 30, 2020;
d. Any motions arising from examinations for discovery shall take place on or before May 15, 2020;
e. The action shall be set down for trial on or before May 29, 2020, failing which the Registrar shall dismiss the action for delay.
- There shall be no costs of the motion convened as a status hearing.
Master B. McAfee
Date: February 4, 2020