Court File and Parties
COURT FILE NO.: CV-09-385003 MOTION HEARD: 2020-12-03 REASONS RELEASED: 2021-03-03
SUPERIOR COURT OF JUSTICE – ONTARIO
BETWEEN:
DIELLA LUMAJ on her own behalf as administrator of the estate of GJYSTE LUMAJ, deceased, LEK LUMAJ, HANA GJELAJ, EMMANUELLE GJELAJ, DAMJAN GJELAJ, LULA LUMAJ and KLODIAN LUMAJ Plaintiffs
- and-
ST. MICHAEL’S HOSPITAL, DR. ROBERT JAMES SARGEANT, JOAN NURSE and JANE NURSE Defendants
BEFORE: MASTER M.P. McGRAW
COUNSEL: D. Lumaj and L.Lumaj - Plaintiffs, Self-Represented Email: lula52@hotmail.com
A. Spafford - for the Defendant, Dr. Robert James Sargeant Email: aspafford@lerners.ca
V. Cistrone - for the Defendant, St. Michael’s Hospital Email: vcistrone@blg.com
REASONS RELEASED: March 3, 2021
Reasons for Endorsement
I. Overview
[1] The Plaintiffs bring a motion to set aside the Order of the Registrar Dismissing Action For Delay dated May 1, 2013 (the “Dismissal Order”). This action has a long history over 11 years involving multiple Plaintiffs’ counsel and periods of significant delay.
II. Background
[2] On August 25, 2007, Gjyste Lumaj (“Gjyste”) attended St. Michael’s Hospital complaining of shortness of breath and chest pain. She was treated for cardiac issues, however her condition deteriorated and she passed away on September 12, 2007 from apparent abdominal sepsis.
[3] The Plaintiffs commenced this action by Statement of Claim issued on August 13, 2009. The Estate and the Plaintiffs each claim $50,000 in damages. The Plaintiffs’ Lawyer of Record at the time was Tony Lafazanis. The Statement of Claim was served in January 2010 and Dr. Sargeant delivered a Demand for Particulars (the “Demand”) on January 14, 2010. Counsel received no response to the Demand or to numerous follow-up requests throughout 2010 and 2011 and scheduled a motion to dismiss this action for delay returnable on September 20, 2011. However, on September 7, 2011, Joseph Kary advised that he had been retained by the Plaintiffs and the motion was adjourned to April 3, 2012. Notwithstanding numerous requests by counsel, Mr. Kary did not serve and file a Notice of Change of Lawyer. Mr. Kary was also retained by the Plaintiffs with respect to 2 other matters.
[4] On April 3, 2012, Master McAfee ordered a timetable on consent of the parties: i.) Plaintiffs to deliver response to Demand by May 3, 2012; ii.) Defendants to deliver Statements of Defence by June 4, 2012; iii.) Affidavits of Documents by August 17, 2012, iv.) examinations for discovery completed by October 5, 2012; and v.) action to be set down for trial by April 30, 2013. While the Defendants delivered their Statements of Defence and Affidavits of Documents in accordance with the timetable, the Plaintiffs did not deliver their Affidavits of Documents and Mr. Kary did not respond to requests regarding his availability for examinations for discovery.
[5] At a status hearing on October 15, 2012, at which Mr. Kary attended, Master Brott ordered an amended timetable: i.) Plaintiffs’ Affidavit of Documents by end of October 2012; ii.) Plaintiffs’ examinations for discovery on November 20 and 22, 2012; iii.) Defendants’ examinations for discovery before the end of November 2012; iv.) undertakings answered by end of January 2013; and v.) action still to be set down for trial by April 30, 2013.
[6] Examinations for discovery were completed in November 2012. On January 9, 2013, Mr. Kary advised counsel that he had instructions to consent to a dismissal of the claims by Hana Gjelaj, Emmanuelle Gjelaj and Damjan Gjelaj. Dr. Sargeant’s counsel followed up with Mr. Kary with respect to releases but received no response.
[7] The Dismissal Order was issued on May 1, 2013. As Mr. Kary had not delivered a Notice of Change of Lawyer, the Dismissal Order was sent to Mr. Lafanzanis who faxed it to Mr. Kary on May 8, 2013. On June 11, 2013, Dr. Sargeant’s counsel send a copy of the Dismissal Order to Mr. Kary who advised that day that the Plaintiffs would be bringing a motion to set it aside. On July 3, 2013, Mr. Kary delivered a Notice of Motion for a motion returnable July 22, 2013 which did not state the relief sought. Defendants’ counsel wrote to Mr. Kary on October 21, 2013 and November 25, 2013 regarding motion dates and materials. Mr. Kary did not respond.
[8] The Plaintiffs state that Mr. Kary never advised them about the Dismissal Order or provided them with a copy and that they learned about it for the first time on June 27, 2019 when they attended before Master Robinson on their motions to remove Mr. Kary as Lawyer of Record in all 3 matters (the “Removal Motions”). Mr. Kary testified that he discussed the Dismissal Order with the Plaintiff Diella Lumaj (“Diella”), Gyjste’s sister and estate administrator, and would have told her that a motion was required to reinstate the action. He was satisfied that the Plaintiffs understood that the action was not proceeding.
[9] The Plaintiffs state that although they became increasingly concerned about the progress of this action and the 2 other matters which Mr. Kary was handling, they believed for a long time that he was working on this case. On October 6 and 28, 2016, the Plaintiff Lula Lumaj (“Lula”), Gyjeste’s granddaughter, emailed Mr. Kary stating that she was “worried about the timing of these cases”, asking “what is happening in terms of progress or lack thereof” adding “I honestly don’t know where we stand…..we feel like we are in limbo”. On May 17, 2017, Diella sent an email to Mr. Kary asking if there had been any progress with the cases including this action “because you mentioned you would be working on it last time we spoke, such as a possible motion”. Lula emailed again on July 21, 2017: “I am getting a little concerned…..I also wanted to remind you of my grandmother’s case. It’s been ten years and I’m afraid time is running out”. On December 4, 2017, Diella sent another email: “I really want to know what’s happening with our cases. I’m pretty sure we’re falling behind somehow.” Lula then emailed on January 12, 2018: “is there any news on our cases, or have you given up on them?”
[10] Mr. Kary admits that he was concerned when he received these emails but he did nothing in response. Although Mr. Kary’s records, including dockets, indicate that he met with the Plaintiffs approximately 48 times from 2013-2018 (41 times after May 2013), it is not clear when or how often he actually met or spoke with them. The Plaintiffs state that when they made appointments with Mr. Kary, he would often meet them outside of his office door and rush them out with vague answers, false promises and no updates. They indicate that Mr. Kary rarely invited them in to meet in his office and that he did not show them the contents of their files when he received them from Mr. Lafazanis. He admits that the only step he took after the Dismissal Order was to conduct some unspecified research.
[11] Diella states that she became suspicious that Mr. Kary was not being honest with her and arranged an urgent meeting with him so that she could determine if any concrete progress had been made. At this meeting on March 8, 2018, Diella states that Mr. Kary placed the files for this action in front of her and led her to believe that all he had to do was to take this action to trial. Diella claims that she has an audio recording of this meeting. On April 23, 2018, Lula emailed Mr. Kary again: “I’m starting to lose hope and your excuses are not looking good….I’m definitely considering looking at other options because it’s been years with no progress.”
[12] The Plaintiffs advised Mr. Kary in February 2019 that they were retaining a new lawyer. They brought the Removal Motions to have Mr. Kary removed as Lawyer of Record in all 3 matters and to obtain their files. At an attendance before Master Robinson on June 27, 2019, the Plaintiffs state that they learned for the first time that this action had been dismissed over 6 years earlier. They were unable to remove Mr. Kary as Lawyer of Record because he did not file a Notice of Change of Solicitor and therefore, was never formally on the record. The Plaintiffs subsequently delivered a Notice of Intention to Act In Person on August 28, 2019 to have Mr. Lafazanis removed as Lawyer of Record.
[13] On July 31, 2019, the Plaintiffs brought motions before Master Robinson to set aside the Dismissal Order and obtain their files. The motions were adjourned to September 11, 2019. Master Jolley adjourned this motion on September 11, 2019 and ordered a timetable.
[14] I was assigned to hear this motion and the parties first attended before me on a telephone case conference on October 2, 2019. This would be the first of 12 telephone case conferences most of which were related to whether Mr. Kary would consent to an examination as a witness on the motion, other evidence and the possibility that the Defendants might consent to set the Dismissal Order aside. I scheduled the motion for January 8, 2020, however, it was adjourned sine die so that Mr. Kary could consult with legal counsel. Diella and Lula were cross-examined on November 7, 2019 and the Defendants subsequently advised that they wished to cross-examine Mr. Kary.
[15] When Dr. Sargeant’s counsel contacted Mr. Kary, he advised that he did not have consent from the Plaintiffs to disclose solicitor-client communications. However, the Plaintiffs confirmed to the court on numerous occasions that they had provided consent to Mr. Kary. The Defendants brought a motion to compel Mr. Kary to attend an examination returnable April 24, 2020, however, it did not proceed due to the suspension of regular court operations as a result of the COVID-19 pandemic. Over 4 more case conferences, one which Mr. Kary attended on his own and three in which he was represented by LawPro counsel, Mr. Kary ultimately agreed to be examined and to file an affidavit. The motion was scheduled for December 3, 2020 and Mr. Kary was examined on October 20, 2020.
[16] A final telephone case conference was held on November 12, 2020 to address undertakings from Mr. Kary’s examination during which I denied the Defendants’ request for another adjournment to provide him with additional time to answer them. I scheduled another case conference for November 20, 2020 to address any remaining issues, however, Mr. Kary answered his undertakings and it was not required.
III. The Law and Analysis
[17] Rule 48.14 states:
(1) Unless the court orders otherwise, the registrar shall dismiss an action for delay in either of the following circumstances, subject to subrules (4) to (8):
- The action has not been set down for trial or terminated by any means by the fifth anniversary of the commencement of the action.
[18] Rule 48.14(10) provides that the dismissal of an action under Rule 48.14 (1) may be set aside under rule 37.14(1), which states:
(1) A party or other person who,
(c) is affected by an order of a registrar,
may move to set aside or vary the order, by a notice of motion that is served forthwith after the order comes to the person’s attention and names the first available hearing date that is at least three days after service of the notice of motion.
(2) On a motion under subrule (1), the court may set aside or vary the order on such terms as are just.
[19] The four (4) factors which the court must consider when determining whether to exercise its discretion to set aside a Registrar’s dismissal order were established by Master Dash in Reid v. Dow Corning Corp., [2001] O.J. No. 2365 (S.C.J.):
“1.Explanation of the Litigation Delay: The plaintiff must adequately explain the delay in the progress of the litigation from the institution of the action until the deadline for setting the action down for trial as set out in the status notice. She must satisfy the court that steps were being taken to advance the litigation toward trial, or if such steps were not taken to explain why. For example the complexities of the case and the number of parties may have required significantly more time to move the action toward trial, or the delay was caused by interlocutory matters or appeals. The plaintiff could explain that the action was stalled due to the inattention or negligence of her solicitors which was contrary to her own instructions or expectations. It is absolutely essential that the plaintiff lead satisfactory evidence that she personally always intended the action to proceed to trial without delay, that she did not assent to the delay, and that she always reasonably assumed it was so proceeding or made appropriate inquiries of her solicitors. If either the solicitor or the client made a deliberate decision not to advance the litigation toward trial then the motion to set aside the dismissal will fail.
2.Inadvertence in Missing the Deadline: The plaintiff or her solicitor must lead satisfactory evidence to explain that they always intended to set the action down within the time limit set out in the status notice, or request a status hearing, but failed to do so through inadvertence. In other words the penultimate dismissal order was made as a result of inadvertence.
3.The Motion is Brought Promptly: The plaintiff must demonstrate that she moved forthwith to set aside the dismissal order as soon as the order came to her attention.
4.No Prejudice to the Defendant: The plaintiff must convince the court that the defendants have not demonstrated any significant prejudice in presenting their case at trial as a result of the plaintiff's delay or as a result of steps taken following the dismissal of the action. The court takes note that witnesses' memories generally tend to fade over time and that sometime it is difficult to locate witnesses or documents. However to bar the plaintiff from proceeding with her action on the ground of prejudice, the defendant must lead evidence of actual prejudice. This might include evidence of specified documents lost over time, or destroyed following a dismissal, or of specific witnesses who have died, or have disappeared and the defendant has been unable to locate them with due diligence. While litigation is outstanding the defendants must take care to obtain and preserve evidence.” (Reid at para. 41; Prescott v. Barbon, 2018 ONCA 504 at para. 14).
[20] This is not a rigid test and the Plaintiffs are not required to satisfy each of the 4 factors. The court must take a contextual approach weighing all relevant factors to determine the order that is just in the circumstances of the particular case (Scaini v. Prochnicki, 2007 ONCA 63 at paras. 21-28; Prescott at para. 15). The Court of Appeal provided further guidance in Habib v. Mucaj, 2012 ONCA 880:
“[5] There are four well established factors to consider when deciding to set aside an order to dismiss an action: (i) explanation of the litigation delay - a deliberate decision not to advance the litigation will usually be fatal; (ii) inadvertence in missing the deadline - the intention always was to set the action down within the time limit; (iii) the motion is brought promptly - as soon as possible after the order came to the party's attention; and (iv) no prejudice to the defendant - the prejudice must be significant and arise out of the delay: Reid v. Dow Corning Corp. (2001), 11 C.P.C. (5th) 80 (Ont. Div. Crt.).
[6] No one factor is necessarily decisive of the issue. Rather, a "contextual" approach is required where the court weighs all relevant considerations to determine the result that is just. …”
[21] The Court of Appeal has also provided guidance with respect to the balance between having matters determined on their merits and having them tried expeditiously:
“Expeditious justice must be balanced with the public interest in having disputes determined on their merits. Where, despite the delay, the defendant would not be unfairly prejudiced should the matter proceed for resolution on the merits, according the plaintiff an indulgence is generally favoured.” (Marché d'Alimentation Denis Thériault Ltée. v. Giant Tiger Stores Ltd. (2007), 2007 ONCA 695, 87 O.R. (3d) 660 (O.C.A.) at para. 34)
[22] The general preference for determining matters on their merits is stronger where there is delay due to an error or inadvertence of counsel:
“ The court's preference for deciding matters on their merits is all the more pronounced where delay results from an error committed by counsel. As the court stated in Habib, at para. 7, "[O]n a motion to set aside a dismissal order, the court should be concerned primarily with the rights of the litigants, not with the conduct of their counsel." In Marché, Sharpe J.A. stated, at para. 28, "The law will not ordinarily allow an innocent client to suffer the irrevocable loss of the right to proceed by reason of the inadvertence of his or her solicitor" (citations omitted). (H.B. Fuller Company et al. v. Rogers (Rogers Law Office), 2015 ONCA 173 at para. 27)
[23] In Graham v. Vandersloot, 2012 ONCA 60, the Court of Appeal stated:
“[10] Finally, while the motion judge was justified in observing that the medical assessments should have been arranged prior to May 2010, she gave undue weight to the appellant's lawyer's failure to do so when all of the foregoing factors are taken into consideration. As Hambly J. noted [at para. 15] when granting leave to appeal to the Divisional Court [[2011] O.J. No. 495, 2011 ONSC 377] in this matter, "the often applied principle that the sins of the lawyer should not be visited upon the client applies in this case". This principle was enunciated by this court in Halton Community Credit Union Ltd. v. ICL Computers Canada Ltd., [1985] O.J. No. 101, 8 O.A.C. 369 (C.A.), at para. 11:
Undoubtedly counsel is the agent of the client for many purposes . . . but it is a principle of very long standing that the client is not to be placed irrevocably in jeopardy by reason of the neglect or inattention of his solicitor, if relief to the client can be given on terms that protect his innocent adversary as to costs thrown away and as to the security of the legal position he has gained. There may be cases where the plaintiff has so changed his position that this is impossible.
[11] This is such a case, in my opinion. There is nothing to indicate that a further adjournment of six months would have in any way affected "the security of the legal position [the respondents had] gained" or changed their position in any way that could not be compensated for in costs. Mr. Black submitted that it is inaccurate to say the appellant was "placed irrevocably in jeopardy" by reason of the adjournment refusal and the dismissal of the action, because she has other remedies open to her, namely, a potential claim against her solicitor. I am not prepared to say that she should be required to resort to such a remedy in the circumstances of this case.
[12] Apart from the understandable frustrations experienced by presiding judicial officials and opposing parties over delays in the processing of civil cases, it is the overall interests of justice that, at the end of the day, must govern. Perell J. expressed this sentiment well in Ariston Realty Corp., at para. 38:
In my opinion, a concern for the principles of natural justice and the appearance of justice being done explains why, perhaps to the chagrin of those opposing adjournments and indulgences, courts should tend to be generous rather than overly strict in granting indulgences, particularly where the request would promote a decision on the merits. This liberality follows because it is in the public interest that whatever the outcome, a litigant should perceive that he or she had their day in court and a fair chance to make out their case.” (Graham at paras. 10-12)
[24] For the reasons set out below, I conclude that it is just in the circumstances to dismiss the Plaintiffs’ motion to set aside the Dismissal Order and that this action should not be permitted to proceed.
[25] With respect to the first Reid factor, the Plaintiffs are required to provide an “acceptable”, “satisfactory” or “reasonable” explanation for the delay (Carioca’s Import & Export Inc. v. Canadian Pacific Railway, 2015 ONCA 592 at para. 45). In determining what constitutes an adequate explanation, the totality of the circumstances must be examined having regard to the competing interests at stake and the interests of justice (3 Dogs Real Estate Corp. v. XCG Consultants Ltd., 2014 ONSC 2251 at para. 37). In assessing the explanation, the court is to consider the overall conduct of the litigation and not to undertake a month-by-month review (Carioca’s at para. 46). A plaintiff bears the primary responsibility for the progress of an action and though there may be situations where the defendant’s conduct may be relevant, there is no burden on the defendant to explain the delay or move the action to trial (Prescott at para. 30). The longer the delay, the more robust the explanation which is required (Erland v. Ontario, 2019 ONSC 462 at para. 10).
[26] Mr. Kary admits that he does not have a good explanation as to why he failed to bring this motion. He knew that any further delay could potentially jeopardize the Plaintiffs’ ability to have their action reinstated. He also admits that although he was working on the other 2 files for the Plaintiffs, nothing prevented him from prioritizing this motion. Although he states in his affidavit that the delay was partly attributable to serious health issues, he admits that he was able to return to work and there was no reason that he could not have worked on this motion.
[27] The Plaintiffs submit that they reasonably and honestly relied on Mr. Kary as their lawyer and his representations that this action was progressing and at no time did he advise them of the Dismissal Order or provide them with a copy. In assessing the Plaintiffs’ explanation, I must consider that while clients are entitled to rely on their lawyers to conduct an action, they must demonstrate that they reasonably assumed that the action was proceeding (McNeill v. Sun Life Assurance, 2019 ONSC 4351 at para. 75). The Defendants submit that similar to McNeill, the Plaintiffs are not justified in relying on a lawyer who did nothing for years. The Defendants also rely on Assaf v. Toronto (City), 2018 ONSC 5408 where the court held that a plaintiff who followed up with his lawyer for over 4 years and was advised that his case was progressing before changing lawyers had not provided a reasonable explanation.
[28] The Plaintiffs rely on Ruggiero v. FN Corporation, 2011 ONSC 3212 for the proposition that the delay in this action has not been intentional and contumelious. This is not the applicable test on a Rule 48.14 motion to set aside a dismissal order, it is the test on a dismissal for delay motion under Rule 24. While it is necessary for me to consider whether the delay was intentional, it is one factor within the context of the first Reid factor with respect to whether the Plaintiffs’ explanation is reasonable.
[29] I am satisfied that the Plaintiffs were not aware that this action had been dismissed until they attended on the Removal Motions on June 27, 2019. I accept the Plaintiffs’ explanation, supported by the evidence, that they would not have continued to follow up with Mr. Kary for over 6 years had they known this action was dismissed. Other than a passing reference in an email to a “motion”, which could have referred to any of the 3 matters, there is no evidence of any discussion about the necessity of this motion to reinstate this action. The Plaintiffs’ numerous and ongoing efforts to follow up with Mr. Kary also support their assertion that they always intended to pursue this action to trial. The Plaintiffs were entitled to rely on Mr. Kary as their lawyer and generally speaking, the inaction and the delays leading to the Dismissal Order (including those by Mr. Lafazanis) and 6 years afterwards should not be visited upon them. However, the relevant question is whether the Plaintiffs’ reliance on Mr. Kary was reasonable in the circumstances.
[30] In this regard, I must consider whether the Plaintiffs reasonably held the belief that their action was proceeding which was consistent with their reasonable expectations of what steps Mr. Kary was taking on their behalf (McNeill at para. 75; Reid at para. 41). I have difficulty with the significant period of time of approximately 6 years during which the Plaintiffs continued to follow up with Mr. Kary before they brought the Removal Motions. The case law is clear that there comes a point where plaintiffs can no longer rely on counsel who has taken no steps to advance their action for years. However, notwithstanding the significant period of time, I conclude in the present circumstances that the Plaintiffs’ reliance on Mr. Kary was reasonable. I arrive at this conclusion largely because Mr. Kary reassured the Plaintiffs that their matters were progressing and then, importantly, advised Diella in person in March 2018 that this action was ready for trial. Further, Mr. Kary’s retainer for this action was intertwined with his work on their other 2 files such that I am not convinced that the Plaintiffs truly understood the distinctions between them. As a result, I am not prepared to find that the Plaintiffs unreasonably relied on Mr. Kary because they did not take steps to remove him in the face of his express representations that progress was being made on all 3 files. To do so would be to impose an unreasonable obligation on individual clients such as the Plaintiffs who, unlike commercial or institutional clients or those more accustomed to dealing with litigation, do not have the resources, experience or leverage to manage and track a matter let alone 3 matters and to retain new counsel expeditiously, or at all. By contrast, the Plaintiffs here were in the unfortunate position of seeking redress for the tragic loss of a loved one which was compounded by Mr. Kary’s inaction.
[31] Accordingly, I am satisfied in all of the circumstances that the Plaintiffs have provided a reasonable explanation for the delay. However, this finding does not change my ultimate conclusion that the Plaintiffs’ motion should be dismissed.
[32] With respect to the second Reid factor, I cannot conclude that Mr. Kary’s failure to set this action down for trial was inadvertent. In Giant Tiger, the Court of Appeal held that 5 years of delay caused by a lawyer who had effectively abandoned the action could not be considered inadvertence:
[28] One important consideration is that the plaintiff will not be left without a remedy. I recognize here the need to ensure that adequate remedies are afforded where a right has been infringed. The law will not ordinarily allow an innocent client to suffer the irrevocable loss of the right to proceed by reason of the inadvertence of his or her solicitor: see, e.g., Chiarelli v. Wiens (2000), 46 O.R. (3d) 780, [2000] O.J. No. 296 (C.A.), at para. 9.
[29] However, this calculus implicitly assumes that the court is left with a stark choice between defeating the client's rights and forcing the opposite party to defend the case on its merits. That assumption is faulty where, as in this case, the solicitor's conduct is not mere inadvertence, but amounts to conduct very likely to expose the solicitor to liability to the client. When the solicitor is exposed in this way, the choice is different; refusing the client an indulgence for delay will not necessarily deny the client a legal remedy.
[30] In these circumstances, and contrary to the view expressed by the Divisional Court judge, the Master properly distinguished inadvertence from negligence. Leaving the Registrar's order in place would not necessarily deprive the respondents of a remedy. It was appropriate on these facts for the Master to tell the respondents that they should "consider what other remedies are available to them".
[31] A second consideration is that the nature of the delay and the solicitors' conduct in this case amount to more than that kind of lapse or inadvertent mistake that the legal system can countenance. We should opt for a resolution that discourages this type of conduct which undermines the important value of having disputes resolved in a timely fashion. The decision of the Master sends the right message and provides appropriate incentives to those involved in the civil justice system.
[32] Moreover, excusing a delay of this magnitude and gravity risks undermining public confidence in the administration of justice. Lawyers who fail to serve their clients threaten public confidence in the administration of justice. The legal profession itself has recognized this danger: Commentary to rule 2.01 of the Law Society of Upper Canada's Rules of Professional Conduct states, "A [page670] lawyer who is incompetent does the client a disservice, brings discredit to the profession, and may bring the administration of justice into disrepute" (emphasis added). There is a risk that the public would perceive disregarding the solicitor's conduct in the circumstances of this case as the legal system protecting its own. Excusing a delay of this kind would [throw] into question the willingness of the courts to live up to the stated goal of timely justice.
[33] Overall, reinstating this action would excuse a five-year delay after the dismissal of an action, explained only by the fact that a lawyer formed "a deliberate intention not to advance the litigation toward trial" and "put the file in abeyance". That would risk undermining the integrity and repute of the administration of justice.”
[33] Through the delay which led to the issuance of the Dismissal Order and particularly his subsequent failure to take the necessary steps to bring this motion and move this action forward for 6 years, Mr. Kary effectively abandoned this action and unilaterally put it into abeyance. In my view, this constitutes more than inadvertence and traverses into potential negligence, particularly given the passage of 6 years, an inordinate length of time, and his alleged misrepresentations that this action was progressing and was ready for trial. This raises the possibility that the Plaintiffs may have claims against Mr. Kary such that if the Dismissal Order is not set aside they will not be left without a remedy.
[34] Turning to the third Reid factor, I am satisfied that the Plaintiffs brought this motion in a timely manner. As set out above, I have found that the Plaintiffs learned about the Dismissal Order for the first time on June 27, 2019 when they appeared before Master Robinson on the Removal Motions. The relevant date is whether the Plaintiffs moved in a timely manner after the Dismissal Order was brought to their attention, not when it was issued (Assaf at para. 17; Reid at para. 41; Habib at para. 5). Although the Dismissal Order was first brought to Mr. Kary’s attention in May and June 2013, for the specific purposes of this analysis, I am of the view that this should not be attributed to the Plaintiffs given the absence of evidence that they were aware of the dismissal. Once they became aware of it, they brought this motion within approximately 30 days, which I conclude was timely.
[35] With respect to the fourth Reid factor, the Plaintiffs bear the onus of demonstrating that the Defendants would not suffer significant, actual prejudice as a result of the overall delay if this action is permitted to proceed (1196158 Ontario Inc. v. 6274013 Canada Ltd., 2012 ONCA 544 at para. 32). The prejudice at issue is the Defendants’ ability to defend the action and present their case at trial as a result of the Plaintiffs’ delay, not due to the passage of time (Carioca’s at para. 57; H.B. Fuller at para. 37; Abou-Naoum v. Leon’s Furniture Ltd., 2016 ONSC 7341 at para. 66). The plaintiff’s evidence should identify the important witnesses and indicate whether or not they remain available to give evidence or whether their evidence and important documentary evidence has been preserved (Martin v. John Doe, 2017 ONSC 6955 at para. 33).
[36] It appears that the necessary witnesses, including Diella, are available to testify at trial and there is no evidence that any documents have been lost or destroyed. However, even if the Defendants could still properly defend this action, the principle of finality outweighs all other considerations including the Plaintiffs’ request for an indulgence to have their action heard on the merits (Prescott at paras. 32-42; Giant Tiger at paras 38-40). Again, the Court of Appeal’s reasoning in Giant Tiger is instructive:
“[36] Moreover, as the Master correctly observed, the jurisprudence from this court identifies as relevant to the fourth Reid factor the security of legal position gained by a litigant through a court order granted because of delay or default: see Halton Community Credit Union Ltd. v. ICL Computers Canada Ltd., supra. [page671]
[37] Finality, like the avoidance of unnecessary delay, is a central principle in the administration of justice. "The law rightly seeks a finality to litigation" and finality is "a compelling consideration": Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460, [2001] S.C.J. No. 46, at paras. 18 and 19.
[38] When an action has been disposed of in favour of a party, that party's entitlement to rely on the finality principle grows stronger as the years pass. Even when the order dismissing the action was made for delay or default and not on the merits, and even when the party relying on the order could still defend itself despite the delay, it seems to me that at some point the interest in finality must trump the opposite party's plea for an indulgence. This is especially true where, as in the present case, the opposite party appears to have another remedy available.
[39] The delay in this case was inordinate. From the appellant's perspective, the respondents did absolutely nothing to move this file forward for more than five years, and before that, the respondents had proceeded in what could only be described as a desultory fashion for two and one-half years after commencing the action.
[40] I agree with the Master that, when viewed in the light of a delay of this magnitude, the security of the legal position obtained by the appellant becomes an important factor to consider. Five years after the action against it had been dismissed, the appellant was entitled to rest on the assurance that the judicial system had disposed of the respondents' claim once and for all.”
[37] The security and assurance of legal position to which the Defendants are entitled is more pronounced in the present case. Not only had this action been dismissed for 6 years by the time the Plaintiffs brought this motion but the Plaintiffs may have remedies against Mr. Kary given his failure to take any meaningful steps in 6 years to move this action forward including bringing this motion. Accordingly, I conclude that the fourth factor favours the Defendants.
[38] Taking into consideration all of the relevant factors and circumstances and applying a contextual analysis, I conclude that it is just in the circumstances to dismiss the Plaintiffs’ motion. In balancing the parties’ respective interests, I am satisfied that the Defendants’ right to rely on the finality and assurance that this action was dismissed and to order their affairs accordingly for approximately 6 years outweighs the Plaintiffs’ rights to have this action determined on the merits particularly where they have potential claims against Mr. Kary. In these circumstances, the principle that plaintiffs should not suffer the irrevocable loss of rights to have their action proceed on the merits due to the conduct of their counsel must give way to the Defendants’ rights to rely on the finality that the Dismissal Order has provided especially where the Defendants’ rights cannot be adequately protected by costs. I am also mindful of the Court of Appeal’s concerns in Giant Tiger of the potential impact that excusing a lawyer’s delay of 6 years would have on the administration of justice.
IV. Disposition and Costs
[39] Order to go dismissing the Plaintiffs’ motion. If the parties cannot agree on the costs of this motion, they may file written costs submissions not to exceed 4 pages (excluding Costs Outlines) through the Masters’ Administration Office on a timetable to be agreed upon by the parties. If the parties cannot agree on a timetable, they may arrange a telephone case conference.
Released: March 3, 2021 Master M.P. McGraw