COURT FILE NO.: CV-18-135922
DATE: 20210507
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Broderick Grant
Plaintiff
– and –
Timothy Volkert, Ryder Integrated Logistics Inc., Ryder System, Inc. and John Doe Inc.
Defendants
Paul Portman, As Agent for the Plaintiff
Peter Pietraszek, for the Defendants, Ryder Integrated Logistics Inc., Ryder System, Inc.
HEARD: April 21, 2021
REASONS FOR DECISION ON MOTION TO SET ASIDE A DISMISSAL OF THE ACTION
McKELVEY J.:
Introduction
[1] This action arises out of a motor vehicle accident which occurred on May 31, 2016. The action was dismissed for delay by Justice Charney on December 2, 2020. The plaintiff has brought this motion to set aside the Order of Justice Charney. For the reasons which follow, I have concluded that the plaintiff’s motion should be granted.
Legal Principles with Respect to Setting Aside an Order
[2] Under Rule 37.14 a party who fails to appear on a motion through accident, mistake or insufficient notice may move to set aside or vary the order by 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. In the present case, the plaintiff has filed a supporting affidavit on the motion. In his affidavit he notes that the motion before Justice Charney was heard virtually. At paragraph 9 of the affidavit he states that,
I was on the ZOOM call and attempted to participate, but was left in the waiting room for about 45 minutes. Shown to me and attached hereto as exhibit “D” is a date/time stamp screenshot that I took on my phone while waiting for the ZOOM meeting to start.
[3] There is nothing to contradict the evidence of the plaintiff that the motion was heard in his absence while he waited in the waiting room for the hearing to start and I accept his evidence in this regard. Mr. Broderick further testified that after the motion was heard, he was spoken to by the Clerk who told him, “Oh we saw you on the iPhone, but did not know it was you”.
[4] The Order of Justice Charney makes it clear that the Order was given in the absence of any input from the plaintiff. Justice Charney states in his Endorsement,
The defendants, Ryder Integrated Logistics Inc. and Ryder System, Inc., have brought this motion pursuant to Rule 24 for an order to dismiss the plaintiff’s action for delay, and for costs of the action and this motion.
This action arises from an alleged motor vehicle accident that occurred in May, 2016. The Statement of Claim was issued on June 4, 2018. It appears that the Statement of Claim has not been served on the defendant Timothy Volkert. Timothy Volkert has not defended the action, nor has that defendant been noted in default. Pursuant to Rule 24.01, the Court shall dismiss the action where the plaintiff has failed to serve all of the defendants within the prescribed time period, or noted them in default within 30 days of default. Since defending this action, the moving parties have requested the plaintiff to move this action forward and serve an affidavit of documents, but the plaintiff has failed to proceed. The plaintiff has not responded to this motion or any correspondence sent by defendant’s counsel. The defendants are therefore entitled to the relief sought in their motion and the action is dismissed for delay. Costs of the action fixed at $4,500, costs of this motion fixed at $2,000, payable by the plaintiff within 30 days. [Emphasis added.]
[5] It is apparent that Justice Charney proceeded on the basis that this was an unopposed motion. In light of the circumstances which are now known, I have concluded that the Order of Justice Charney must be reviewed in light of the submissions and evidence before me to determine whether the dismissal should be confirmed or not.
Chronology
[6] In considering whether the dismissal of the action is warranted, the following chronology is relevant:
• May 31, 2016 – Date of the original motor vehicle accident
• May 24, 2018 – Notice of Action issued
• June 4, 2018 – Statement of Claim issued
• June, 2018 – Attempted service of the Statement of Claim on the defendant, Timothy Volkert
• August 31, 2018 – Statement of Defence entered by the defendants, Ryder Integrated Logistics Inc. and Ryder System, Inc.
• November 22, 2018 – The defendant’s solicitor writes to the plaintiff’s solicitor requesting medical documentation and asking what steps are being taken to serve Mr. Volkert.
• December, 2018 to August 1, 2019 – A number of letters are written by defence counsel to the plaintiff’s solicitor requesting documentation re: damages.
• August 1, 2019 – On this date, defence counsel writes to the plaintiff’s solicitor once again requesting documentation re: damages and advising that he has instructions, “to bring a motion to dismiss this claim for delay, to be prepared by mid-August if we cannot start moving this file forward”.
• January 9, 2020 – Defence counsel delivers a Notice of Motion returnable June 11, 2020 for a dismissal of the action for delay. This notice is served on the plaintiff’s solicitor.
• January 31, 2020 – The plaintiff’s solicitor delivers a Notice of Intention to Act in Person signed by the plaintiff.
• March 4, 2020 – In a letter to the plaintiff personally dated March 4, 2020, defence counsel serves his Notice of Motion for dismissal of the action for delay returnable June 11, 2020.
• June 11, 2020 – The motion to dismiss the action for delay cannot be heard because of the COVID-19 pandemic and is adjourned.
• November 3, 2020 – Defence counsel serves a Notice of Motion to dismiss the action for delay personally on the plaintiff. This motion is returnable on December 2, 2020.
• December 2, 2020 – This motion is heard before Justice Charney but the plaintiff is kept out of the hearing.
• December 28, 2020 – A motion is brought by the plaintiff to set aside the dismissal of the action.
Legal Principles in Relation to the Within Motion to Dismiss the Plaintiff’s Action for Delay
[7] Rule 24.01 is the rule which permits a defendant who is not in default under the rules to bring a motion to dismiss the action for delay where the plaintiff has failed to serve the statement of claim on all of the defendants within the prescribed time. In addition, courts have held that there is an inherent jurisdiction to dismiss an action for delay to prevent an abuse of its own process. See: Ticchiarelli v. Ticchiarelli, 2017 ONCA 1.
[8] In this Court’s decision in Wallace v. Crate’s Marine Sales Ltd., 2013 ONSC 7384 (aff’d on appeal at 2014 ONCA 671), the criteria which must be satisfied before an action will be dismissed for delay are set out.
[9] An action should not be dismissed for delay unless:
(1) The delay is intentional and contumelious; or
(2) The plaintiff and/or his lawyer are responsible for the inexcusable delay such that:
(3) The delay gives rise to a substantial risk that a fair trial might not be possible.
[10] Where the delay is not found to be intentional or contumelious, the defendant must establish:
(a) There is an inexcusable delay;
(b) For which the plaintiff or his lawyer is responsible; and
(c) The delay gives rise to a substantial risk that a fair trial might not now be possible.
[11] In determining whether the delay is inexcusable, the court must consider the complexity of the issues, the explanation for the delay and all relevant surrounding circumstances. It is presumed that memories fade after time and an inordinate delay after the cause of action arose or after the passage of the limitation period, gives rise to a presumption of prejudice. Where there is a presumption of prejudice, the defendant need not adduce actual evidence of prejudice and the action will be dismissed for delay unless the plaintiff rebuts that presumption.
[12] In the case of De Marco v. Mascitelli, 2001 Carswell Ont. 3137, Justice LaForme (as he then was) comments on the above-noted tests. He states that to succeed on a motion for delay, a defendant must satisfy a court that one or other of the following exists:
That the delay on the part of the plaintiff is intentional and contumelious. He takes this to mean that the plaintiff has acted in an intentionally disdainful or disrespectful fashion; or
That the delay is inexcusable and as such it gives rise to a substantial risk that a fair trial of the issues in the litigation will not be possible. That is, there is no “reasonable and cogent” excuse for the delay and the delay is such that it prejudices the right to a fair trial.
[13] Justice LaForme goes on to note that the test under delay has several components that the defendants must satisfy the court on:
First, they must show that there has been a sufficient period of delay;
Second, they must show that the plaintiffs cannot account for the delay through reasons that are both “reasonable and cogent” or sensible and persuasive; and
Third, the defendants must satisfy the court that the delay has resulted in a “substantial risk” that a fair trial has been prejudiced. Or that there exists a real danger that a fair trial cannot occur because of the unexplained or inadequately explained delay.
[14] A final issue to be considered on this motion is the conduct of the plaintiff’s former solicitor. In H.B. Fuller Co. v. Rogers, 2015 ONCA 173, the Ontario Court of Appeal noted,
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”.
Analysis
[15] The uncontradicted evidence of the plaintiff on this motion is that in September, 2018, he gave full and complete disclosure to his lawyer with respect to his damages and that this included a total of more than 275 pages. Unfortunately, the evidence of the defendant is that in a letter dated December 19, 2018 from the plaintiff’s solicitor, they only received a total of four pages of clinical notes. There is no available explanation for why the plaintiff’s solicitor did not provide all of the relevant damage documents to defence counsel.
[16] It is also apparent that the failure to serve Timothy Volkert was as a result of his whereabouts being unknown. An attempt was made to serve that defendant in Buffalo, but the information received by the plaintiff’s solicitor was that he had left those premises sometime earlier.
[17] In these circumstances, I conclude that the delay in serving Mr. Volkert was not caused by the plaintiff acting in an intentionally disdainful or disrespectful fashion. This then leaves the question as to whether there has been a sufficient period of delay which the plaintiff cannot account for through reasons that are both “reasonable and cogent” or sensible and persuasive, and whether the defendants have satisfied the test that the delay has resulted in a substantial risk that a fair trial has been prejudiced.
[18] In my view the defendants have failed to meet the above-noted test.
[19] We know that under the rules the plaintiff is given six months after issuance of the Notice of Action to serve the Notice of Action Statement of Claim on the defendant (Rule 14.08). This means that the Statement of Claim should have been served on Mr. Volkert by November 24, 2018. This corresponds with the letter written by the defendant dated November 22, 2018 inquiring what steps were being taken to serve Mr. Volkert. The Notice of Motion to dismiss the action for delay was served on January 9, 2020 which represents a delay on the part of the plaintiff in serving Mr. Volkert of approximately 13 months. We do not know why the plaintiff’s solicitor did not take any steps to try and serve Mr. Volkert within that timeframe. However, I have concluded that the delay of approximately 13 months is not sufficient to justify a dismissal of the action for delay, especially when this delay lies at the hands of the plaintiff’s former solicitor.
[20] It is true that the plaintiff has not taken any steps to serve Mr. Volkert since the Notice of Intention to Act in Person was served on January 31, 2020. In this regard, however, I accept the plaintiff’s evidence as set out in his supporting affidavit as follows:
On or around January 31, 2020, a Notice of Intention to Act in Person was signed by me at the insistence of my lawyer, William Doodnauth (hereinafter “my lawyer”).
Thereafter I remained lost and confused as to the process. I made every attempt to retain counsel. I tried to call several lawyers, starting with Diamond & Diamond on or around January 2020. I was advised that they were not taking on new cases. They referred me to a lawyer in Woodbridge who advised that she could not take my case either.
I have spoken with multiple lawyers since January 2020 and none of them have agreed to take on my case. To add insult to injury, I have limited funds and I have thus been restricted to trying to reach out to firms which will take the case on a contingency retainer.
I remain self-represented at this time, but have managed to scrape together some funds to have assistance with this paperwork to set aside the order from December 2, 2020.
[21] It is apparent from the plaintiff’s evidence that he has not ignored his claim and has taken steps to try and retain new counsel. I therefore conclude that the plaintiff has accounted for the delay for reasons that are sensible and persuasive. I also note that a good portion of the delay can be attributed to the COVID-19 pandemic and the fact that the Court could not initially deal with the motion in June of 2020 and that it had to be adjourned to December 2, 2020 as a result of COVID.
[22] I also conclude that the delay has not resulted in a substantial risk that a fair trial has been prejudiced. In the De Marco case, Justice LaForme dealt with a delay of 3 ½ years. At para. 28 he comments that in his judgment, the delay was “longer than one would ordinarily hope”. He suggested that the delay in that case was “borderline”. He concludes that while it was longer than it should have been, it is not so long as to immediately assume that it must be prejudicial to a fair trial. He concludes by stating, “this is not a proper case where the length of the delay by itself will give rise to a presumption that there is a substantial risk to a fair trial”. Similarly, I have concluded that the length of the delay in this case will not by itself give rise to a presumption that there is a substantial risk that a fair trial cannot occur.
[23] For the above reasons, I have concluded that the defence motion must be dismissed. However, in order to ensure that the action proceeds in a timely manner from this point forward, I make the following Order:
The plaintiff is to serve the Notice of Action Statement of Claim on the defendant, Timothy Volkert or alternatively, close the pleadings within three months from the date of this Order;
Affidavits of Documents shall be exchanged between the parties within two months of the close of pleadings;
Examinations for Discovery will take place within three months of the delivery of Affidavits of Documents; and
The action is to be set down for trial by the plaintiff within six months following Examinations for Discovery.
[24] I would urge the parties to agree on the costs of this motion. However, if they are not able to, then counsel should contact the Trial Coordinator to schedule a further appearance before me within 30 days. Concise briefs should be filed at least two days prior to the hearing. If no arrangements are made within 30 days for an appointment to speak to costs, there will be no order for costs.
Justice M. McKelvey
Released: May 7, 2021
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Broderick Grant
Plaintiff
– and –
Timothy Volkert, Ryder Integrated Logistics Inc., Ryder System, Inc. and John Doe Inc.
Defendants
REASONS FOR DECISION ON MOTION TO SET ASIDE A DISMISSAL OF THE ACTION
Justice M. McKelvey
Released: May 7, 2021