COURT FILE NO.: CV-13-482727
DATE: 20201229
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
TAMARA SLOTA
Plaintiff
– and –
KENORA-RAINY RIVER DISTRICTS CHILD AND FAMILY SERVICES, EMILE JENKS and BETTY JENKS
Defendants
– and –
NAIRN FAMILY HOMES INC. and HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO
Third Parties
Sean Dewart and Mathieu Bélanger, for the Plaintiff
Harvey Stone, for the Defendant Kenora-Rainy River Districts Child and Family Services
Robert Sinding, for the Defendant Betty Janke
Lianne J. Armstrong, for the Third Party Nairn Family Homes Inc.
Rina Li and Nadia Laeeque, for the Third Party Her Majesty the Queen in Right of Ontario
HEARD: December 16, 2020
f.l. Myers j.
REASONS FOR DECISION
The Motions
The Context – A Bad Decision is met by Scorched Earth
[1] Tamara Slota claims that she was the victim of sexual assault while she was in the foster care of Betty and Emile Janke in the early 1980s. The alleged assailant, Emile Janke, died before the litigation commenced. Mrs. Janke is in her late 80s.[^1]
[2] The plaintiff moves to extend the timetable for procedural steps established by Kimmel J. in her order dated January 9, 2019 with reasons reported at 2019 ONSC 126.
[3] The defendant Kenora-Rainy River Districts Child and Family Services (the “CFS”) opposes and cross-moves to dismiss the action for delay. Mrs. Janke supports the CFS’s positions.
[4] The parties agree that the same legal principles apply to both cross-motions.
[5] The plaintiff has not advanced this action expeditiously. She was thrown a lifeline to save the action by Kimmel J. The judge set a schedule for discovery and a deadline of December 16, 2019 by which the plaintiff was required to set the action down for trial. The judge noted that she was offering an indulgence to the plaintiff and highlighted this point by making the dates peremptory (if missed due to matters within the plaintiff’s control).
[6] Two months later, the plaintiff’s lawyer made a poor decision to refuse to attend scheduled examinations for discovery. In the ensuing months, the plaintiff’s lawyer suffered a debilitating medical condition that has kept her off work for over a year to date.
[7] The plaintiff missed the deadline to set the action down.
[8] I first became involved in this action when the Regional Senior Justice for the Toronto Region delegated to me a request by the plaintiff to have the action assigned for case management under Rule 77.05.
[9] The CFS opposed the request for case management and argued that the plaintiff was using the case management request to try to get around her breach of the peremptory scheduling order made by Kimmel J.
[10] Although vociferous opposition to a request for case management is usually one of the most telling signs of the need for case management of a lawsuit, I directed that the plaintiff regularize the proceeding before I would determine the outcome of her request for case management.
[11] The ensuing motion process has disclosed what can only be called “scorched earth” tactics by the CFS. It has done nothing illegal. But it spares no effort or expense to bring every proceeding, to make every objection, to jump to every negative inference or theory, and to make every argument to hinder, hamper, and delay the efficient and fair hearing of the plaintiff’s claim that she was sexually assaulted.
[12] Within days of her decision to try to cancel examinations for discovery, the plaintiff’s lawyer proposed a schedule to put the action back on track. The CFS has consistently blocked her from doing so.
[13] Each step forward by the plaintiff has been met with two shoves back by the defendants. I agree with Mr. Dewart’s submission that the CFS, with Mrs. Janke’s support, has consistently thrown sand in the gears to try to grind Ms. Slota’s litigation to a halt on procedural grounds.[^2] They have succeeded in preventing the litigation from moving forward. And now the CFS and Ms. Janke seek to use that further delay to terminate the lawsuit on procedural grounds so Ms. Slota never gets to be heard in a courtroom.
[14] Procedural issues are not supposed to be a weapon wielded to deny a plaintiff her opportunity to tell her story and seek a determination on the substance or merits of her claim at a trial.
The Proper Approach to Procedural Issues in Civil Litigation
[15] Commentary 1 of Rule 5.1-1 of the Rules of Professional Conduct of the Law Society of Ontario provides the foundational duty of zealous representation of every litigation lawyer:
In adversarial proceedings, the lawyer has a duty to the client to raise fearlessly every issue, advance every argument and ask every question, however distasteful, that the lawyer thinks will help the client's case and to endeavour to obtain for the client the benefit of every remedy and defence authorized by law.
[16] What is too often overlooked however is that the duty is not unbounded. Lawyers are not champions fighting a trial by battle. They are licensed professionals assuring the parties and society that justice will be served. The client is not entitled to win at all costs. But every client is entitled to a fair process in which she will have every proper opportunity to state her case and have the facts found and the law applied by an independent and dispassionate judge or trier.
[17] After stating the litigator’s basic duty, the very next sentence of Commentary 1 of Rule 5.1-1 provides this overarching context:
The lawyer must discharge this duty by fair and honourable means, without illegality and in a manner that is consistent with the lawyer's duty to treat the tribunal with candour, fairness, courtesy and respect and in a way that promotes the parties' right to a fair hearing in which justice can be done. [Emphasis added.]
[18] The goal of zealous representation – of raising fearlessly every issue no matter how distasteful – is to ensure the fair hearing of the case for both parties (plural). The duty of zealousness does not require scorched earth. It requires the raising of issues consistent with the fair resolution of the matter.
[19] It is the commitment to the fairness of the process that makes the civil justice system just. It gives the system legitimacy and justifies the societal requirement that disputes be resolved with professionals committed to justice rather than by mercenaries brandishing flamethrowers. To that end, in a civil case, counsels’ duties require them to cooperate to find the most efficient, affordable, and proportionate adjudication process for the fair resolution of their clients’ disputes.
[20] The Supreme Court of Canada has demanded that a fair process remains paramount in civil justice, especially in relation to efficiency and affordability:
[23] Our civil justice system is premised upon the value that the process of adjudication must be fair and just. This cannot be compromised.
[24] However, undue process and protracted trials, with unnecessary expense and delay, can prevent the fair and just resolution of disputes. See: Hryniak v Mauldin, 2014 SCC 7 at para. 23.
[21] What is most fascinating about the approach adopted by the CFS in this case is that it says that it has a very strong and complete defence to the action. It says it is a corporation that was not yet in existence at the time that the plaintiff says she was sexually assaulted.
[22] The plaintiff was in the care of a prior Children’s Aid Society at the time that the she says she was assaulted. It was a different and unrelated corporate entity. The old corporate body was dissolved by the government and its assets were transferred (escheated) to Her Majesty. CFS has commenced a third party claim against the Province to reflect its position.
[23] If the CFS is correct, should it not want to have the case resolved on its merits as quickly and cheaply as possible? Instead, it refuses to offer procedural or scheduling cooperation to get the matter heard and it actively thwarts efforts to do so.
[24] As but one example, instead of cooperating with new counsel on whose shoulders the burden of her ill partner’s cases has fallen, the CFS still points to a lack of medical evidence to prove the plaintiff’s lawyer’s illness despite her being off work for more than a year.
[25] Defendants and plaintiffs alike are entitled to a fair process that is not delayed inappropriately. But they are not entitled to use old-school tactics to create or exacerbate procedural delay and undermine the fundamental goal of a fair resolution process.
The Outcome
[26] I agree with the conclusion reached by Kimmel J,. at para. 58 of her decision, and find it applies here as well almost two years later:
I do not believe that the ability of the defendants to defend the action or the possibility of a fair trial have been materially compromised by the plaintiff’s conduct
[27] I agree as well that the defendants cannot rely on delays caused by their own conduct. Neither can they “ ‘create’ prejudice by failing to take steps to defend or to do something that it reasonably could or ought to have done, such as interviewing potential witnesses or preserving relevant evidence” See Justice Kimmel’s decision at para. 51.
[28] Weighing all the relevant factors discussed below, I find that the order to extend the timetable ought to be granted and the CFS’s cross-motion to dismiss the action must be dismissed.
The Legal Principles
The Court has Jurisdiction to Extend a Timetable
[29] The CFS argues that the court has no jurisdiction to extend the timetable set by Kimmel J. The plaintiff asked Kimmel J. to give her a more relaxed timetable and Kimmel J. did not agree. Therefore, CFS argues that what the plaintiff actually seeks now is to re-argue the motion that was heard by Kimmel J. Counsel also says that the issue of whether the CFS is insured, that is discussed below, was also before Kimmel J. and is no longer open for review.
[30] Rule 3.02 of the Rules of Civil Procedure, RRO 1990, Reg 194, provides:
3.02 (1) Subject to subrule (3), the court may by order extend or abridge any time prescribed by these rules or an order, on such terms as are just.
[31] This rule is a complete answer to the CFS’s jurisdiction argument. So too is the Court of Appeal’s decision in Jadid, below, that is relied upon by the CFS. Judges extend timetables daily and in Civil Practice Court, multiple times per day. The submission that there is no jurisdiction to do so, apart from ignoring an express rule and case law, would be highly impractical and would unleash a torrent of unnecessary motions.
[32] During the hearing of the motions, I told Mr. Dewart that he did not need to reply to this argument. The argument that the court lacks jurisdiction to extend a timetable was specious and the fact that it was made just reinforces my view that the CFS will raise issues regardless of their merit.
The Test to Extend a Schedule a Second Time
[33] Despite arguing that the court has no jurisdiction, the CFS submitted an alternative argument that sets out the correct legal foundation of these motions. The following factors apply when a court is asked to extend a deadline a second time. In Jadid v Toronto Transit Commission, 2016 ONSC 1176, aff’d 2016 ONCA 936 Dunphy J. wrote:
[52] The plaintiff submits that the standard I should apply to this order is the standard applied in moving to set aside a Registrar’s order of dismissal. The four criteria (the “Reid criteria”) described in Reid v. Dow Corning Corp., [2001] O.J. No. 2365, 11 C.P.C. (5th) 80 (S.C.J.), at para. 41, revd on other grounds [2002] O.J. No. 3414, 48 C.P.C. (5th) 93 (Div. Ct.) have been applied by the Court of Appeal in a number of cases including Habib (supra) and Marché D'Alimentation Denis Thériault Ltée v. Giant Tiger Stores Limited, 2007 ONCA 695 (at para 12):
“(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... 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.”
[53] While the four Reid factors are clearly the starting point for considering an appeal of a Registrar’s order of dismissal, this is not such a case. That was what the motion before B. O’Marra J. on February 17, 2012 was. What is before me now is a motion to vary the order that set aside the Registrar’s order. While the criteria applicable to the initial order are certainly relevant and may be turned to by way of analogy, they do not fully address the additional factor of a moving party who has been to the well for relief once and returns a second time. The Reid criteria are the minimum starting point, but more is required.
[54] I am persuaded by the reasoning of the Sharpe J.A. in 1196158 Ontario Inc. v. 6274013 Canada Limited, 2012 ONCA 544. In that case, the plaintiff had failed to progress the action beyond the pleadings stage (as is the case here) when the status notice was issued. At the status hearing conducted in January 2010 conditions were imposed including that discoveries be completed and the matter be set down for trial by June 2011. When this was not done, the matter came on for a new status hearing in September 2011 where the presiding judge dismissed the action for delay.
[55] The parallels between 1196158 Ontario Inc. (supra) and the present case are strong ones. The motions judge had dismissed the claim noting the failure of the plaintiff to comply with the “lifeline’ it had been given at the first status hearing, its ignoring of the timetable set and for the failure to show any meaningful progress. With minor variations, those same factors are present here.
[56] Sharpe J. A. upheld the dismissal of the claim. In motions of this sort, he found:
“[17] The civil justice system aims to resolve disputes fairly, on the merits and in a timely and efficient manner. The Rules of Civil Procedure provide that the rules are to be "liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits": rule 1.04(1).
[18] Achieving that goal in cases involving dismissal for delay requires a careful balance of two fundamental principles. The first is that civil actions should, if possible, be decided on their merits and procedural rules should be interpreted accordingly. The second is that the procedural rules that aim to resolve disputes in a timely and efficient manner can only achieve their goal if they are respected and enforced.”
[57] That in a nutshell is the balancing that I must perform in this case.
[34] The Court of Appeal agreed with Justice Dunphy’s approach to the case especially since it was a second kick at the can. Commencing at para. 10 if the decision, Miller JA wrote:
…The motion judge reasoned that this additional factor, a “moving party who has been to the well for relief once and returns a second time” (at para. 53), necessitated the following additional considerations: (1) the length of both the pre- and post-order delay; (2) that no priority should be given to any of the Reid factors over any others; (3) that prejudice to the defendant may be inferred from the passage of time; and (4) the application of a heightened scrutiny of the four Reid factors and the requirement of an explanation for why the first lifeline was ignored.
[11] The appellant argued that the motion judge misapprehended the Reid test (and subsequent case law applying it) by rejecting the proposition that prejudice takes priority over the other factors.
[12] I disagree. It is well established that, as stated by the motion judge, none of the Reid factors have automatic priority over any others. The Reid test provides a structured approach to reconciling the principle that civil actions should be decided on their merits, with the principle that the public interest is served by enforcing procedural rules that promote the timely and efficient resolution of disputes (1196158 Ontario Inc. v. 62474013 Canada Ltd., 2012 ONCA 544, 112 O.R. (3d) 67, at para. 18). It guides the exercise of judicial discretion and thereby reduces the risk of overlooking relevant considerations. It does not set out a formula, prioritize any enumerated factors over any others, or categorically exclude the consideration of other factors not listed: H.B. Fuller Co. v. Rogers, 2015 ONCA 173, 386 D.L.R. (4th) 262, at para. 23; Marche d’Alimentation Denis Theriault Ltée v. Giant Tiger Stores Ltd., 2007 ONCA 695, 87 O.R. (3d) 660, at para 20.
[35] Miller JA referred to the HB Fuller decision of the Court of Appeal. At para. 23 of that decision, Weiler JA recognized that among the full range of relevant circumstances to be considered on a motion to extend a litigation timetable, the court is entitled to take into account the conduct of the moving defendant:
Furthermore, it is not only the plaintiff’s conduct that must be considered. While the plaintiff bears primary responsibility for the conduct of the action, the defendant’s conduct in the litigation is a relevant circumstance: see Aguas v. Rivard Estate, 2011 ONCA 494, 107 O.R. (3d) 142, at paras. 18-19, 21.
[36] The Court of Appeal has also held that the defendant’s conduct is especially relevant where the plaintiff tries to move things along and the defendant resists. See 1196158 Ontario Inc.(cited in Jadid above) at para. 29.
[37] The principal period of delay at issue before me is delay that has occurred subsequent to the order made by Kimmel J. Justice Kimmel has already granted the appropriate relief for the delay that preceded the hearing before her. However, I can and do take the entire history of the action into account in assessing prejudice and remedy. Stokker v. Storoschuk, 2018 ONCA 2, at paras. 5 and 14.
[38] The CFS argues that there should be evidence from the plaintiff herself confirming her desire to proceed with the litigation and that the evidence of Ms. Ellis, the lawyer who has taken over from her ill partner, is insufficient. I see no fixed rules identifying mandatory evidence in each case. The four Reid factors, discussed by Dunphy J. above, all fall within counsel’s particular knowledge. I understand that Ms. Ellis only became involved after the discovery issue in March, 2019. However the facts surrounding that event are not in dispute.
The Conduct of these Motions
[39] While these motions were pending, the CFS delivered a summons try to examine a lawyer for the Province. The Province moved to quash the summons as an abuse of the court’s process. Mr. Stone argued that it was necessary to examine one of the Province’s lawyers to show that there was a conspiracy between the plaintiff’s lawyer and the Province to have Mr. Stone replaced as the CFS’s lawyer.
[40] I quashed the summons and held that the conspiracy theory was not relevant to the principles applicable to the motions before the court.
[41] After cross-examinations of the parties’ witnesses on their affidavits, I heard another meta-motion (a motion within a motion) in which the CFS asked me to compel Ms. Ellis to return for further cross-examination to answer questions to which her counsel had objected. The CFS argued that it should be entitled to ask Ms. Ellis questions about Mr. Stone’s assertion that the plaintiff’s lawyer and the Province conspired to have him removed as the CFS’s lawyer despite the fact that I had already ruled that this was not relevant to the issues on the motions.
[42] I upheld the plaintiff’s objection to those questions. In addition, I upheld the plaintiff’s refusal to allow Mr. Stone to cross-examine Ms. Ellis about the details of her other clients’ cases just because she swore that after the plaintiff’s lead counsel had taken ill, Ms. Ellis was busy with her own cases and her partners’ cases.
[43] Both meta-motions risked de-railing the motion schedule for trips down rabbit holes involving issues far removed from the merits of the motions. Both meta-motions were further indications that the CFS was more interested in creating extra processes, delay, and costs than it was in getting the motions heard.
The Chronology
The Insurance Issue
[44] Minute details are not needed to bring this issue into focus. The plaintiff hopes to find an insurance policy to respond to her claim. The CFS advised that it was not insured for claims made relating to events before its incorporation. In 2017, the Province advised that it was unable to locate a policy that might have covered the dissolved Children’s Aid Society at the time of the sexual assault claimed by the plaintiff.
[45] Two possible insurance policies were identified. Inquiries of both insurers had not provided the CFS or the Province with a belief that the CFS or the prior dissolved Children’s Aid Society were covered by a policy of insurance that would respond to the plaintiff’s claim.
[46] At para. 7 of her reasons, Kimmel J. referred to the pursuit of insurance coverage in July 2017 as part of her chronology of the proceeding. I disagree with Mr. Stone’s submission that the issue that arose in March of 2019 was already dealt with or decided by Kimmel J. The facts that arose in March, 2019 discussed below were not before Kimmel J. as they had not happened yet. In any event she made no findings on the 2017 insurance foray.
[47] In late March, 2019, literally on the eve of scheduled examinations for discovery, counsel for the Province advised that it had new information on insurance coverage. In fact, there was no new information in substance. The issue may have resurfaced on counsel’s “to do “ list and the Province’s efforts to look for coverage may have been redoubled. But the plaintiff was unable to show that there was anything new learned. The same two policies were reviewed. The same insurers were contacted and the results were the same – that there is no known insurance available to respond to the plaintiff’s claim.
[48] The Province told counsel for the plaintiff that they did not want to attend discovery if an insurer might be located and come on the record. Counsel for the other Third Party agreed. At first blush, counsel for the defendant Mrs. Janke agreed; but he quickly changed his mind once Mr. Stone rejected the deferral of examinations.
[49] The plaintiff’s lawyer then unilaterally refused to produce the plaintiff for discovery or to examine the representative produced for discovery by the CFS.
[50] Counsel for Mrs. Janke produced the elderly defendant. Both counsel for the CFS and for the plaintiff examined her.
[51] In my view, there was no legitimate reason to refuse to proceed with the examinations as ordered and scheduled. If the third parties did not wish to proceed, they could take that risk. The plaintiff was under a last chance court order. The grounds put forward by the plaintiff’s counsel at the time were without merit.
[52] First, she argued that if applicable insurance is located in future, the insurer might decline coverage if it claims to be prejudiced because examinations for discovery had been held. Her other, and related argument was that she did not want to expose Mr. Stone to a claim of negligence if insurance was discovered and his insistence on proceeding with examinations allowed the insurer to avoid coverage.
[53] The action at that point was already six years old. The plaintiff had been criticized by Kimmel J. for her part in the delay. She had been ordered to meet a schedule. It was not open to her to ignore the court’s order. Moreover, the possibility of “new” information was not actually accompanied by anything of substance. In fact, the Province did not advise of its conclusion of its new investigation until earlier this year. Using counsel’s rationale, discoveries could have been delayed for a full year while the Province got around to looking more deeply into the issue that had already been resolved to the extent reasonably possible in 2017.
[54] Moreover, the CFS said it has no insurance coverage. It is the Government who was still looking for coverage for the time period in which the prior Children’s Aid Society was involved. The dissolved corporation has not been sued by the plaintiff (although the Province has been added as a Third Party by CFS).
[55] It is by no means clear that proceeding with a court-ordered examination for discovery six years into a lawsuit would have any impact on any insurance coverage issue if one might arise in future. Furthermore, it is up to the defendant to contact its insurer if it wishes to do so. It is not for the plaintiff’s lawyer to protect the defendant’s lawyer by ignoring a court-ordered schedule.
The Plaintiff’ Tries to Move Forward
[56] Within a week of cancelling the examination of the plaintiff, on April 4, 2019, the plaintiff’s lawyer offered up a new schedule essentially requested a three-month delay. Had the CFS agreed or negotiated, discoveries could have been long since finished by now. The action could then have been set down by the Dec. 19, 2019 deadline as ordered (although the plaintiff’s counsel’s intervening illness might have caused some further, explicable delay).
[57] On April 9, 2019, Mr. Stone insisted that any change to the timetable required a variation to the order of Kimmel J.
[58] The CFS was lawfully entitled to take this position. But, by insisting that a motion would be required, many months would necessarily be lost by this process.
[59] Under Rule 3.02 the parties are allowed to consent to extensions of time. They do not have to do so. But CFS cannot complain about months passing in a process that it demanded.
[60] On April 10, 2019, the next day, the plaintiff’s counsel wrote to Kimmel J. to commence the process to schedule a hearing.
[61] On April 17, 2020, the plaintiff’s counsel delivered draft motion material to counsel opposite.
[62] The parties participated in a case conference with Kimmel J. on May 1, 2019. In her endorsement, Kimmel J. noted that the plaintiff had wanted to deal with the extension of time summarily at the case conference. However the CFS insisted that a motion to vary the timetable was required. Justice Kimmel expressly reserved on the issue of whether a full motion was required or whether a simple extension should be dealt with at a case conference under Rules 3 and 50.13 (6).
[63] At that case conference, the CFS advised Kimmel J. that it intended to bring a motion to strike the statement of claim and to dismiss the action. It also told Kimmel J. that it would bring another meta-motion to strike the affidavit that the plaintiff proposed to deliver for the motion to vary (that had been delivered in draft).
[64] Kimmel J. also recited that the CFS had advised her that if it did not succeed in having the action dismissed, it wanted to move for summary judgment against the Province and that the Third Party Nairn wanted to move for summary judgment to dismiss the CFS’s claim against it. Kimmel J. stated that these proposed motions were not on the table when she made her scheduling order on January 9, 2019. (In fact, in her January 9, 2019 reasons she discussed that the CFS had withdrawn a prior threatened motion for summary judgment and that was the impetus to move the case forward to examinations for discovery).
[65] Kimmel J. recognized that the matter was contentious and she required a proper sequencing of the myriad of proposed motions. The plaintiff suggested that the appointment of a case management judge would be appropriate to help with all the proposed proceedings. Kimmel J. endorsed that possibility and advised that she was prepared to continue to assist in managing matters in the interim.
[66] CFS opposed the request for case management.
[67] On May 24, 2019, counsel for the plaintiff wrote to the former Regional Senior Justice for the Toronto Region to ask for the appointment of a case management judge.
[68] On the same day, the CFS moved before the Regional Senior Justice in the Northwest Region to have the action transferred to Kenora.
[69] Counsel for the CFS had not advised Kimmel J. or the plaintiff’s counsel before bringing that motion. All counsel except Mr. Stone practice in Toronto.
[70] The former Toronto RSJ appointed Firestone J. to consider the plaintiff’s case management request. In June, 2019, Firestone J. deferred that decision until the RSJ in in the Northwest Region made her decision about whether to transfer the action there. Firestone J. directed that in the interim the plaintiff get on with the motion to vary the timetable before Kimmel J. whether by case conference or by motion as Kimmel J. may determine.
[71] The RSJ in Thunder Bay ordered that the motion to change venue proceed through a full contested hearing process. Accordingly, the matter had to be briefed and was then heard by Fregeau J. On November 22, 2019, he denied the motion recognizing the efficiency of continuing to deal with the numerous motions and threatened motions already being dealt with by Kimmel J. in Toronto.
[72] The CFS then sought leave to appeal this decision to the Divisional Court. Less than a dozen interlocutory decisions of judges per year obtain leave to appeal to the Divisional Court. The decision of Fregeau J. was an exercise of discretion balancing numerous relevant factors. The motion for leave to appeal had very little, if any, realistic chance of success. The Divisional Court dismissed the CFS’s motion in March, 2020.
[73] Mr. Dewart characterized the motion to change venue as obstructionist. He submitted that it was an effort to de-rail the case management request in Toronto and to increase the costs of all the parties by making them go to Kenora for the anticipated mass of motions threatened by the CFS.
[74] Mr. Dewart characterized the motion for leave to appeal to the Divisional Court as “absurd”. In my view, it is inexplicable from any sense of a party who wants to get on with an action efficiently and affordably. Once again, it was not an illegal step. But it was one which would knowingly add months of delay and thousands of dollars of costs without any realistic likelihood of success.
[75] Ms. Ellis offers to fall on her sword to explain why the motion to extend the timetable was not brought before Kimmel J. in the fall of 2019. The plaintiff’s lawyer became ill in the summer of 2019. The transfer motion took up the fall. The Divisional Court denied leave to appeal from the CFS’s unsuccessful motion to transfer venue in March, 2020. Ms. Ellis says that she was busy (which I would characterize as prioritizing other work).
[76] However, when the Divisional Court dismissed the motion for leave to appeal, Ms. Ellis wrote to Mr. Stone to re-assert the desirability of case management. On March 27, 2020, the CFS continued its refusal to agree to case management. Mr. Dewart again characterized this position as one driven by obstructionism and designed to increase costs.
[77] The case management request was referred to me and I have already recited my decision to require this motion. Mr. Dewart refers to the two further meta-motions required due to steps taken by the CFS in this motion process as the continuation of its scorched earth policy.
Analysis of the Reid Factors
The Cause of Delay, Inadvertence, and Moving Promptly
[78] Kimmel J found that up to the time of the motion before her, the CFS was not looking for a timely disposition of the action. I find that since then, it has actively sought to delay the case by taking steps that were not designed to enhance a fair process for resolution on the merits. Rather, it has refused to cooperate, obfuscated, delayed, and obstructed moving forward.
[79] It has sadly been fairly successful and was assisted by a single bad decision by the plaintiff’s lawyer and then her illness. The CFS yields no procedural quarter for counsel’s illness either.
[80] The scorched earth policy of the CFS is not irrational if one wishes to try to use procedural tactics to defeat a case. The more steps taken by the CFS; the more delay it can then claim it has suffered. As the events in this case took place almost 40 years ago, witnesses are dying and those still alive are getting older. Delay and costs feed right into the CFS’s efforts to deny an extension of the timetable and to have the action dismissed without Ms. Slota ever having the chance to tell her story in court.
[81] The plaintiff’s lawyer bears sole responsibility for the first piece of delay – the refusal to produce the plaintiff for discovery. The delay was from March 28, 2019 until April 4, 2019 when the plaintiff proposed a new schedule. I would not hold the three months requested against the plaintiff. That period could have been negotiated in good faith. The examinations could have been completed and the action readied to be set down within the time ordered for the latter step. But that negotiation was never held.
[82] The CFS caused all the delay after April 4, 2019 plus a short period to re-schedule the examinations. It could have consented to an extension. It could have dealt with the extension before Kimmel J. summarily. It could have allowed the motion to be scheduled and heard expeditiously. It did not need to insist on a cross-motion to dismiss before Kimmel J.[^3] The CFS was “off-again on-again” with its threats of summary judgment motions. It threw in a meta-motion to strike an affidavit that was not even yet finalized just to make clear to Kimmel J. that the motion process was going to be messy.
[83] The CFS’s motion to change venue was brought by surprise and, I find, was designed to frustrate the request for case management. Moving to have the action heard in another region while Kimmel J. had a bundle of motions before her that she had indicated a willingness to manage, was obstructionist.
[84] Moreover, the motion should not have been brought without discussion with Kimmel J. and counsel opposite. With CFS opposing an extension, threatening to move for dismissal for delay, and then to move for summary judgment (with meta-motions at the ready) the next step was for counsel to sit down and cooperate on a schedule to untangle and ready those motions for hearing as directed by Kimmel J. It was discourteous, at minimum, to launch a surprise motion that undermined the steps directed by the judge.
[85] With the plaintiff’s counsel taking ill, I do not blame Ms. Ellis for freezing between Scylla and Charybdis. For clarity, I do not put any significant stock on Ms. Ellis’s evidence that she was busy. I do, however, empathize with the position into which she was thrust.
[86] Ms. Ellis inherited an action with very fractious relationships among counsel. She was told that the motion to change venue was preventing the appointment of a case management judge but that she should move for an extension that would be opposed by CFS because, among other reasons, the action should be heard in Kenora. The CFS caught her in a Catch-22 and it wasn’t even her file. No matter what Ms. Ellis did or tried to do, she could reasonably expect to be met by a motion or meta-motion(s) to block the path. A case management judge was needed to clear the obstructions and Firestone J. had ruled that that had to await the outcome of the motion to transfer.
[87] At that stage, the refusal to attend discoveries had almost become background noise. The plaintiff tried right away to deal with the extension of time that she needed. The CFS ground that process to a halt. Mr. Stone submits that the plaintiff delayed and had to be forced by me to bring her motion for an extension. Au contraire. Once the Divisional Court ruled, the plaintiff did the sensible thing and followed-up with the request for case management. I cleared away CFS’s blockade to allow these motions to be brought free of the mass of motions that the CFS raised before Kimmel J.
[88] I find that the plaintiff has no acceptable explanation for the initial cancellation of her discovery. Mrs. Janke’s examination has been held. An order extending the timetable could have been made in April on consent or in May, 2019 to require the plaintiff to attend and then, as noted above, the year-end requirement to set the action down could have been met. It did not require the full court press brought by CFS. But, having done so, it bears responsibility for the delay that its procedural obfuscation has caused.
[89] The plaintiff’s refusal to attend for examination for discovery was intentional. But it was also acted upon right away. The rest of the delay was not intentional delay by the plaintiff. The intent to prevent the action from moving forward was held and implemented by the CFS.
[90] I see no basis to blame Ms. Ellis for missing the December deadline in the schedule. The plaintiff’s lawyer became ill in the summer of 2019. That was unforeseen when Kimmel J. made her scheduling order. As was the CFS’s threat of new summary judgment motions. As was the motion to change venue and the effort to appeal. I can see nothing else that Ms. Ellis could reasonably do but wait for the outcome of the transfer motion given the order of Firestone J. that case management had to await that outcome. While Firestone J. directed the extension motion be brought in the interim, I do not accept that the CFS would have let it be heard or resolved before the Divisional Court ruled. Any number of meta-motions or new motions would have scotched that effort.
[91] In light of the CFS’s conduct, I view the plaintiff’s effort to have a case management judge appointed was the logical next step in moving to extend the timetable set by Kimmel J. It was brought promptly before and then again after the transfer motion was dealt with. The plaintiff caused a short period of delay and sought to fix it immediately. Counsel moved as promptly as she realistically could.
Prejudice
[92] Prejudice is presumed in an old action. Ms. Ellis testifies that there is no prejudice caused to the defendants’ case by any delay caused by the plaintiff. Ms. Clouston, a lawyer employed by CFS, testifies that CFS sustained prejudice by the plaintiff’s acts. I give little weight to the bald opinions of counsel retained or employed by the parties. Rather, I assess the weight of the evidence by assessing the underlying facts that form the bases for the opinions.
[93] It is well-understood that in a case involving allegations of historic sexual assault, the principal issue at trial will be the credibility of the parties to the assault and the contemporaneous documentary record. That is doubly so here since the alleged assailant, Mr. Janke, is dead. No one witnessed the assaults alleged.
[94] Mr. Stone submits that the plaintiff was obliged to deliver will-say statements of witnesses to establish that their evidence had been preserved and to put the defendants on notice of the evidence that they need to look for to preserve for themselves. The plaintiff did not deliver any will-say statements.
[95] Ms. Janke, the most elderly witness, has been examined for discovery by the plaintiff and the CFS, so she her evidence is not in issue.
[96] The old files, such as they are, have been produced.
No Actual Prejudice
[97] Three possible witnesses have died since January, 2019. Mr. David Cink apparently recommended the Jankes as foster parents. Mr. Stone says that the CFS wanted his evidence to rebut the allegation that placing the plaintiff with the Jankes for foster care was negligent. Ignoring that the principal defence of the CFS is that it did not exist when the plaintiff was placed with the Jankes by the prior, dissolved Children’s Aid Society, I asked Mr. Stone how he knew of that claim being made in the absence of witness will-says. He advised, as expected, that the claim is in the statement of claim.
[98] I find that the pleading gave the defendants notice of the claim for which Mr. Cink’s evidence might have been desired by CFS. It knew and had every opportunity to preserve his evidence as did the plaintiff.
[99] Margaret Siegers was the plaintiff’s case worker for three years after the alleged assaults. She has also passed away recently. She was involved in the investigation of the plaintiff’s allegations at the time. CFS says she could have given testimony about the plaintiff’s credibility and well-being after she was removed from the Jankes’ home.
[100] Wayne Therrien was an OPP officer who was involved in the criminal investigation of the plaintiff’s allegations. He apparently heard a tape recording that the dissolved Children’s Aid Society viewed as corroborative of the plaintiff’s allegations. Mr. Stone says that he also could have given evidence corroborative of the credibility of the deceased Mr. Janke.
[101] In my view, there was no actual prejudice caused to the defendants’ ability to present their cases by the plaintiff’s decision to cancel her examination and her efforts to extend the timetable shortly thereafter. Parties concerned with expeditious resolution of the case fairly, on its merits, would have consented or dealt with the extension motion quickly before Kimmel J. and gotten on with the case.
[102] Had CFS made its pitch to Kimmel J. about the deliberateness of the plaintiff’s refusal to attend her examination, its case would have been stronger on that piece of the analysis of the Reid factors. The plaintiff’s deliberateness would not have been as watered down by the CFS’s efforts to prevent it from putting the case back on track. The emails that Mr. Stone painstakingly obtained from the Province and the Plaintiff’s counsel subsequently added nothing to the understanding that the plaintiff made a tactical decision to cancel the examinations, backed by the third parties. The narrow molehill of an issue could have been argued before Kimmel J. at a case conference and resolved without the need to erect a mountain of evidence and process steps.
[103] Had the action been set down by December 16, 2019 as ordered, it would not be at trial yet. The three possible witnesses would have died in the interim anyway.
[104] If the CFS had truly wanted the evidence of these possible witnesses for the trial, it would have preserved their evidence already. It knew of them; it knew how to do so; and it knew of its shared responsibility to do so The CFS’s ability to have interviewed and preserved the evidence of these possible witnesses did not suffer from a lack of will-says. Given that Kimmel J. already found that the CFS bears some responsibility to collect and preserve its evidence, the fact that it did not do so leads me to believe that tactically, it preferred to allow possible witnesses to age or pass without preserving their testimony so as to bolster an argument of prejudice.
[105] In any event, the action will turn on the plaintiff’s credibility. I do not see witness testimony concerning their views of the credibility of Mr. Janke or the plaintiff or of what they heard in a tape recording to be admissible or of much significance. This is very different than the fact situation in Canadian National Railway Company v City of Kitchener, 2015 ONCA 131 in which 25 years into a lawsuit, evidence that was lost concerned the key disputed facts in the case.
No Material Change to Presumed Prejudice due to the Plaintiff’s Delay
[106] The defendant does not need to adduce any evidence to rebut presumed prejudice. But the case involves a historic sexual assault. It started some 30 years after the events and this is specifically allowed under the Limitations Act, 2002. Aging of witnesses is endemic to this type of lawsuit and all parties have known that throughout.
[107] With Betty Janke’s discovery completed and given the efforts by the CFS to prevent the case from moving forward, I do not find presumed prejudice to have changed appreciably since the decision of Kimmel J. I do not find the pieces of delay for which the plaintiff bears responsibility before the hearing before Kimmel J. (as found by her) and after (as found by me above) to be either inordinate or inexcusable.
[108] The presumption of prejudice is weak in this case. I accept that Mrs. Janke is suffering distress by the continuation of the claim. However, she has supported the position of the CFS throughout (except for the few hours when she agreed briefly to defer discoveries). If she wishes to get this case resolved, she can support efforts to move it forward with alacrity and eschew efforts to bog it down in process.
Peremptory Order and the Second Chance
[109] The CFS’s position would have been stronger on this point as well in May, 2019. It could have pointed to an improper decision to cancel the plaintiff’s examination for discovery and a brief delay to re-schedule the examinations. It would have drawn Kimmel J. to the peremptory ruling and argued that there were no circumstances to justify the plaintiff’s mis-step.
[110] But the peremptory term ordered by Kimmel J. was expressly made conditional on the default being a matter solely within the plaintiff’s control. As I have detailed above, after cancelling the examination for discovery, the plaintiff had no ability to control the positions taken by the CFS. In fact, the plaintiff’s one mechanism to implement some control, by asking the court to appoint a case management judge, was itself opposed and deferred by the CFS’s conduct.
[111] In the passage from 1196158 Ontario Inc. that was relied upon by Dunphy J. in Jadid, Sharpe JA discussed the need for a careful balancing of two goals. The first, is the desire to resolve cases on their merits:
The second is that the procedural rules that aim to resolve disputes in a timely and efficient manner can only achieve their goal if they are respected and enforced.
[112] As I discussed at the outset, the aim of procedural rules is to ensure that disputes are resolved fairly including as quickly and cheaply as is reasonably possible in the circumstances of each case. They are not intended to be weapons to cause delay and prevent fair hearings. Although this is a second chance case, I do not see this as a case where dismissal promotes the goals of fairness, efficiency, and affordability.
[113] While I am critical of the plaintiff’s lawyer’s decision to unilaterally cancel the examination of her client, it was the scorched earth tactics of the CFS supported by Mrs. Janke that have prevented the action from moving forward. To reward such an ignoble quest would cause far greater harm to the plaintiff and to the administration of civil justice than the negligible harm to the CFS and Ms. Janke of forgiving a tactical mis-step by the plaintiff’s lawyer.
Outcome
[114] I do not believe that the one event for which the plaintiff bears sole responsibility- the cancellation of the examination for discovery - materially compromised either the ability of the defendants to defend the action or the possibility of a fair trial. On balancing the Reid factors, with none given predominance and recognizing that this is a second chance, I am convinced that this action should proceed with a singular focus of getting on to trial.
[115] This action obviously needs case management. As delegate of the RSJ of the Toronto Region, I direct the case into case management under Rule 77.05 (2). I do this of my own motion and do not call for submissions. As the RSJ’s delegate, under Rule 77.06 (1) I direct that all steps in this action be heard and conducted by Mr. Justice S. Dunphy.
[116] I order that no steps may be taken in this action in this court before the parties have met with and obtained directions from the case management judge. The plaintiff shall apply to convene a case conference forthwith in the New Year.
[117] I extend the time for this action to be set down for trial to December 31, 2021 subject to any extension or abridgment that the case management judge deems appropriate. I also leave all other process steps to the case management judge.
[118] The plaintiff acknowledges that she is receiving an indulgence and does not seek costs. In a particularly tone-deaf submission, the CFS asks for $5,000 in costs due to the plaintiff’s failure to attend discovery and set the action down for trial by December 16, 2020. Had the CFS behaved reasonably and responsibly, seeking a fair process for the determination of Ms. Slota’s claims and its defences on their merits, minimal costs would have been incurred by anyone. It is not a reasonable exercise of the court’s discretion to award costs of this motion to the CFS.
[119] No costs.
F.L. Myers J.
Released: December 29, 2020
COURT FILE NO.: CV-13-482727
DATE: 20201229
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
TAMARA SLOTA
Plaintiff
– and –
KENORA-RAINY RIVER DISTRICTS CHILD AND FAMILY SERVICES, EMILE JENKS and BETTY JENKS
Defendants
– and –
NAIRN FAMILY HOMES INC. and HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO
Third Parties
REASONS FOR JUDGMENT
F.L. Myers J.
Released: December 29, 2020
[^1]: Mr. and Mrs. Janke are incorrectly identified as “Jenks” in the Title of Proceedings.
[^2]: Messrs. Dewart and Bélanger are the plaintiff’s counsel for these motions only. They were not involved in the chronology that is the subject of these motions.
[^3]: It insisted on doing the same thing in the motions before me now. If the extension is not given, then the action is dismissed. The cross-motion adds nothing but cost and delay in the schedule. Mr. Stone agreed that the same legal test applies to the cross-motion as to the plaintiff’s motion.