COURT FILE NO.: CV-15-2578
DATE: 20210112
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Roger Gordon, Plaintiff
AND:
Blair Gordon, Defendant
BEFORE: The Honourable Justice Chown
COUNSEL: Harry Mann, for the Plaintff
Tycho Manson, for the Defendant
HEARD: January 8, 2021 (Via Zoom)
E N D O R S E M E N T
[1] This is a status hearing relating to a defamation case brought by Roger Gordon against his brother Blair Gordon. It is alleged in the statement of claim that defamatory remarks were published in a December 5, 2014 email and a May 29, 2015 statement from Blair Gordon to the parties’ two sisters.
[2] For clarity and ease of reference I will refer to the parties by their first names.
Background
[3] This action by Roger was commenced on June 4, 2015. The claim was amended on October 19, 2015 to delete a paragraph about other unparticularized defamatory remarks.
[4] The statement of defence is dated October 30, 2015.
[5] Apart from the exchange of pleadings, no other steps were taken in this action until December 2020, when Roger’s counsel wrote suggesting a timetable so that a status hearing might be avoided.
[6] Roger says his affidavit of documents was prepared in March 2018, but it was not served.
[7] There is other litigation involving the parties and their sisters. The materials filed for this status hearing do not include copies of the pleadings in those actions, but the affidavit materials indicate that in addition to this 2015 action, there are three other proceedings.
An action was started in 2013 by Roger and the sisters against Blair. This action is said to be “with respect to the defendant selling a property belonging to the company of our father.” This action has not moved past the pleadings stage. There is no evidence in the record regarding what may have happened on the fifth anniversary of that proceeding.
An action was commenced in 2017 by Blair against Roger and the sisters. This action “makes allegations of breach of fiduciary duty, breach of contract and fraud along with various other allegations … with respect to the estates of our parents.” This action has also not moved past the pleadings stage.
An action was commenced in 2020 by Blair against Roger claiming damages “for making defamatory utterances for the purpose of influencing the family estate litigation mentioned above.” It is not the affidavit materials, but I am advised that the reply in that action was served last week, and a second defendant in that action is in default for not pleading.
[8] The mother of the parties died on January 20, 2020.
Test on a status hearing
[9] At a status hearing, the plaintiff:
must show cause why the action should not be dismissed for delay. In order to meet this burden the plaintiff must prove that (1) there is an acceptable explanation for the delay and (2) that allowing the action to proceed would not cause the defendant(s) to suffer non-compensable prejudice: Kara v Arnold, 2014 ONCA 871 at para 8. This test is conjunctive.
[10] Erland v Ontario, 2019 ONCA 689 at para 4.
[11] A concise and helpful statement on explanations for delay is found in Super A Hotels Investment and Management Group (Canada) Inc. v 1205723 Ontario Inc., 2020 ONSC 6785 at para 23:
Whether an explanation for delay is “acceptable” depends on the circumstances of each case. “Acceptable” does not mean that the explanation must be “good”, only “adequate” or “passable” and “cogent” and the terms “acceptable”, “satisfactory” and “reasonable” are interchangeable in this regard. The progress of an action does not have to be ideal and the court should not conduct a week by week or month by month analysis. A plaintiff may have to give a more a robust explanation to explain delay after five years than was the case after two years under the previous rule. [Citations omitted.]
Prejudice
[12] Blair acknowledges that he has not suffered any prejudice caused by the delay in this action.
Explanation for the delay
[13] Roger’s explanations for the delay fall into the following categories:
- The three other overlapping actions.
- The parties’ mother’s instructions to wait for a resolution of the actions.
- There were no resolutions coming after the death of the parties’ mother.
- The pandemic.
- Inquiries to set a timetable.
The three other overlapping actions
[14] This 2015 action CV-15-2578 is a Brampton action. I am advised by counsel that the 2020 action was commenced in Kitchener. I do not have information as to the venue of the other two matters.
[15] I was advised during the hearing that counsel in this 2015 action and the 2020 action are the same. I was also advised that counsel in the 2017 action are different.
[16] Although the parties and apparently the issues overlap, I have no evidence as to whether counsel in the other matters have been asked about trial together or even whether those counsel are aware of this action.
[17] The evidence does not disclose any effort to link this matter with any of the other matters. No motion for trial together has been brought. I was advised during the hearing that Roger would want all the matters tried together and Blair would oppose this.
[18] There is no evidence of any effort to link the two matters informally by arranging joint disclosure of documents or joint discoveries or even by communicating with counsel about this possibility.
[19] The mere fact that there are other overlapping actions does not amount to an acceptable reason for the delay. The other actions have not delayed this matter.
The mother’s instructions
[20] Roger’s affidavit states:
While the parties’ mother was alive, I and my sisters Cynthia Gordon and Shelley Mendes and our mother were hoping that once the matters of the estate is settled, all the other litigations may also settle amicably. I had prepared my Affidavit of Documents in March 2018 but did not serve it on the instructions of my mother to wait for a resolution in this litigation and the other actions mentioned above. [Emphasis added.]
[21] Blair’s affidavit responds that by March 2018 the mother lacked the capacity to provide the Roger with advice or instructions with respect to this action. This affidavit includes a medical report dated July 16, 2013 which indicates:
We reviewed the score of 18 out of 30 and the interpretation of the score. Dementia is shown with a score less than 24 and dementia is considered severe with a score less than 18. She is therefore just at the cutoff between mild and severe.
We agree that your mother's dignity and quality of life is better if discussion about her failing mental function is gentle. For example, we have not told her bluntly that she cannot make decisions, but instead have used the language "you need your children to take care of the details." …
She has an understanding that she and her husband worked hard over their lifetimes to create family wealth, but she does not understand details about what her assets are or how they are managed. While she can process some simple concepts when they are explained to her one on one, she does not have the ability to evaluate information that is provided to her nor to weigh various pieces of information to make a decision. In other words, she is not competent to manage her financial and property affairs. Allowing her to feel like a valued member of the family would be the only reason to give her a sense of participation in such matters, and I would suggest some care that this does not have the unintended consequence of making her anxious.
…She should not have authority for banking.
[22] Blair’s unchallenged affidavit points out that this was five years before 2018 and states that by March 2018 the mother “was in a severe state of dementia.”
[23] Even if the mother gave Roger instructions as claimed, on the available evidence it was not reasonable for him to be guided by those instructions. In the circumstances, the mother’s instructions would not be an acceptable explanation for the delay.
[24] Further, the mother is not a party to the action. Even if the evidence was that it was the mother’s “wish” that her children would settle the litigation, this would not be an acceptable explanation for delay. There is no evidence of any efforts to settle the matters in accordance with the mother’s instructions or wishes.
Settlement of all the matters
[25] I refer again to the Roger’s affidavit, where he states:
While the parties’ mother was alive, I and my sisters Cynthia Gordon and Shelley Mendes and our mother were hoping that once the matters of the estate is settled, all the other litigations may also settle amicably. I had prepared my Affidavit of Documents in March 2018 but did not serve it on the instructions of my mother to wait for a resolution in this litigation and the other actions mentioned above. [Emphasis added.]
[26] The emphasized passages lack credibility when it is considered that there is no evidence that Roger had either of his lawyers contact the other to connect the matters or to jointly advance efforts settle the matters.
[27] The “matters of the estate” are not explained. I have no evidence as to what matters in the estate need to be settled, why they have not settled, or what steps have been taken to settle them.
[28] Roger deposed “After the death of our mother there appeared no resolutions coming about and then the pandemic started which did not allow the moving of this matter forward.” [Emphasis added.]
[29] Settlement discussions can be an acceptable reason for delay: Postmedia Network Inc v Meltwater Holding BV, 2017 ONSC 6036 at paras 5 through 9 and 16 through 19; Apotex Inc v Relle, 2012 ONSC 3291 at para 51.
[30] However, as stated, there is no evidence in the materials of any efforts aimed at resolution of this matter, or at global resolution of all four matters. This contrasts with Postmedia and Apotex, where detailed evidence about settlement discussions was given.
The pandemic
[31] I refer again to Roger’s evidence: “After the death of our mother there appeared no resolutions coming about and then the pandemic started which did not allow the moving of this matter forward.” [Emphasis added.]
[32] The pandemic has severely impacted the operation of the court, but the court was never completely closed. Even if it was fully closed, there is no reason why affidavits of documents could not have been exchanged. There is no reason why a discovery plan could not have been developed. There is no reason why the issues of trial together and venue could not have been reviewed with counsel. Apart from the relatively brief period when only urgent motions being heard by the court, there is no reason why the venue and trial-together issues could not have been addressed with a motion. There is no reason why discoveries could not have proceeded by videoconference.
[33] The pandemic is not an acceptable explanation for the delay.
Inquiries to set a timetable
[34] Roger’s affidavit states:
My counsel made inquiries with the Defendants counsel to set a Time Table for the action to proceed and the Defendant did not consent to a Time Table.
[35] This assertion is fully rebutted by Blair’s affidavit:
After service of the Statement of Defence on October 30, 2015, there were no further steps taken in this action for more than five years. No Reply was served. No discovery plan was agreed to among the parties. No affidavits of documents were exchanged. No examinations for discovery were scheduled. I am not aware of any correspondence between counsel after service of the Statement of Defence indicating that Roger intended to proceed with this action until December 2, 2020, more than five years after the Statement of Defence was served.
I am advised by my counsel in this matter … and believe that on December 2, 2020, his office received a call from … Roger’s counsel, asking whether I would consent to a timetable in this matter, failing which Roger would bring a motion. This call was the first indication I was aware of since 2015 that Roger intended to proceed with this action.
Other Considerations
Inactivity of the defendant
[36] Apart from filing a defence, Blair did nothing to advance this matter. Over the last five years, he did not raise any concerns about the delay. Without some attention to a matter by the defendant, it is much easier for a plaintiff to sit idle. If the context included persistent requests by Blair to advance the matter, Roger’s argument that there are reasonable explanations for the delay would be even weaker.
[37] At the same time, Blair did not do anything to frustrate the progress of the matter.
[38] The Court of Appeal in Wellwood v Ontario Provincial Police, 2010 ONCA 386 at para 48 stated that “the party who commences a proceeding bears primary responsibility for its progress. For this reason, the initiating litigant generally suffers the consequences of a dilatory regard for the pace of the litigation.”
[39] In Papp Plastics & Distributing Ltd. v Unity Insurance Brokers (Windsor) Ltd., 2018 ONSC 5009 at para 57, the court said, “The defendant is not obliged to take positive steps to move the action forward or assist a plaintiff in having the matter progress to trial.” See also Canadian Champion Auto v Petro-Canada, 2011 ONSC 6794 at para 47; Deutsche Postbank AG v Kosmayer, 2019 ONSC 6997 at para 27; Atlas Copco Canada Inc. v Dirk Johannes Plate, 2020 ONSC 17 at para 84. Additional considerations apply if the defendant has asked for delays or indulgences or alleges prejudice, but those considerations are not in issue here.
Complexity
[40] Based on the pleadings, this matter is a straightforward two-party defamation case. The delay cannot be justified by complexity.
Intention to abandon
[41] I have considered whether, in the circumstances, the proper inference is that Roger intended to abandon the action and decided to re-start it only after Blair started his own defamation action against Roger in 2020. The fifth anniversary of Roger’s action was in June 2020. The motion for a status hearing should have been brought before then. Although the pandemic made this more difficult, the motion could have been brought well before the date of the motion record (December 3, 2020).
[42] This status hearing was only sought after Blair’s 2020 action was started.
[43] As already noted, Roger did not seek to join this action and the 2017 action in which he is represented by other counsel. The commencement of that matter was the perfect opportunity to raise this case and to seek to advance the two matters together. Further, the January 2020 death of the parties’ mother was another development that might have spurred activity.
[44] In the circumstances, I think it is appropriate to infer that Roger intended to abandon this matter, and that he changed his mind when his brother sued him for defamation in 2020.
Conclusion
[45] The plaintiff has not provided an acceptable explanation for the delay in this matter and as a result this action is dismissed for delay.
Costs
[46] The defendant is entitled to his costs of the action. The only step in the litigation that he took was preparing and delivering his statement of defence. I would allow $250 plus HST for this, plus the court filing fee. I would also allow the defendant $250 plus HST for attendance at the status hearing.
[47] If there were offers to settle or the defendant believes there are strong arguments for additional costs, he may file written submissions by email through my judicial assistant. These must be filed by January 29, 2021, failing which the costs shall be as indicated, $500 plus HST plus the filing fee for the defence.
[48] If the defendant files costs submissions, the plaintiff’s responding submissions shall be filed by February 5, 2021.
[49] If required, both parties’ submissions shall be not more than two single-spaced pages plus bills of costs, dockets, offers to settle or other supporting documentation.
[50] No reply submissions shall be permitted without leave.
Signed: Justice R. Chown
DATE: January 12, 2021
COURT FILE NO.: CV-15-2578
DATE: 20210112
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Roger Gordon, Plaintiff
AND
Blair Gordon, Defendant
BEFORE: The Honourable Justice Chown
COUNSEL: Harry Mann, for the Plaintiff
Tycho Manson, for the Defendant
ENDORSEMENT
Chown J.
DATE: January 12, 2021