Court File and Parties

COURT FILE NO.: CV-12-448250 DATE: June 1, 2021

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: 2259964 Ontario Inc. operating as IMSContractors.com v. Daniel Wilkinson and Kayla Wilkinson;

BEFORE: MASTER C. WIEBE

COUNSEL: Jasdeep Dhillon for Daniel Wilkinson and Kayla Wilkinson;

HEARD: May 31, 2021.

ENDORSEMENT

[1] On May 10, 2021 the defendants brought this motion for an order dismissing the action for delay plus costs. If the action is dismissed, the plaintiff’s claim for lien will be discharged as well along with the certificate of action.

[2] I adjourned the motion to May 31, 2021 and required that Mr. Dhillon serve the amended notice of motion (showing the new return dated) and a supplementary affidavit of his client (addressing the issue of prejudice) on the plaintiff lawyer of record, Adriana Carnevale, and the plaintiff’s registered head office address. I am satisfied that Mr. Dhillon did these things. Mr. Dhillon also served the principal of the plaintiff, Chris Mace, at his last known residential address.

[3] On May 31, 2021 no one appeared for the plaintiff, not Ms. Carnevale and not Mr. Mace. Mr. Dhillon advised that neither Ms. Carnevale nor Mr. Mace called him. This is a factor in my decision. Obviously, the plaintiff did not provide an explanation for its delay in proceeding with this action.

[4] First, some background facts. In 2011 the plaintiff, 2259964 Ontario Inc. operating as IMSContractors.com (“IMS”), did construction work on the home of the defendants, the Wilkinsons. It ceased working in December, 2011. It registered a claim for lien on January 27, 2012 in the amount of $76,008.85 and purported to perfect the lien by having a Statement of Claim issued on March 17, 2012. The Wilkinsons delivered a Statement of Defence (with no counterclaim) on or about September 10, 2012. Their major issue with IMS was its defective work.

[5] The then lawyer for the Wilkinsons, Roderic Hinton, conducted an examination of IMS on May 31, 2012. IMS delivered answers to undertakings on October 10, 20212. IMS never examined the Wilkinsons. In the fall of 2012, the Wilkinsons brought a motion to have the lien declared expired on account of a name issue, which motion was dismissed by Master Albert on October 15, 2012. On December 3, 2013, IMS passed a trial record setting this action down for trial. I was advised that the court informed the defendants that the action was eventually struck from the trial list, although that does not appear on the computer court file record. Nothing further happened in this action before this motion was brought in April, 2021.

[6] The Wilkinsons retained Almax Home Inspection and Property Services to review IMS’s work. A building inspector with that firm, Alan Glushko, conducted an inspection on November 12, 2012 and noted numerous deficiencies. He issued a Field Review Report dated November 12, 2012 itemizing the many deficiencies in the IMS work. The evidence indicates that the Wilkinsons used an electrician, Chris Sterrett, and a trade/handyman, Bruce McAllister, to complete the project.

[7] The defendants rely on Rule 24.01(1). The key part of Rule 24.01(1) for this motion is (e) which specifies that an action can be dismissed for delay if it is struck from the trial list and not restored in 30 days. Rule 24.01(2) refers to Rule 48.14 (1). Rule 48.14(1) paragraph 2 specifies that an action can be dismissed for delay by the registrar if it has been struck from the trial list and not restored within two years. Clearly, this action has not been restored to the trial list within either thirty days or two years of being struck from the trial list.

[8] But there is a broader test to be met even if the case qualifies for being dismissed due to a failure of being restored to the trial list. The test on a motion under Rule 24.01 was articulated by the Court of Appeal in Langenecker v. Sauvé, 2011 ONCA 803. In paragraph 6 the Court describes one type of case that justifies dismissal for delay, namely the case where the delay is caused by the intentional conduct of the plaintiff that demonstrates a contempt or disdain of the court process. These are rare cases. In paragraph 7 the Court describes the second type of case, which is more common. It involves delay by the plaintiff that is inordinate, inexcusable and “gives rise to a substantial risk that a fair trial of the issues in the litigation will not be possible because of the delay.”

[9] There was not sufficient evidence that IMS intentionally delayed this proceeding showing contempt for the court process. There was evidence that Ms. Carnevale responded to the initial motion record by emails stating that she had lost touch with IMS years ago. While this may show that IMS lost all interest in this case, it does not show contempt.

[10] However, I believe that the second test applies to this case. As stated in Langenecker at paragraph 8, the relevant delay is measured from the commencement of the action to the motion to dismiss. In this case, that is a span of over 9 years. In over 7 of those years IMS did nothing in this case. While 9 years may not be an inordinate period of time in a regular civil action, this is a construction lien action and Construction Act, R.S.O. 1990, c.C.30 (“CA”) section 67(1) states that construction lien actions “shall be as far as possible of a summary character, having regard to the amount and nature of the liens in question.” That is in large part due to the fact that a claim for lien in an incumbrance on title. I note that the lien in question here is modest in size and the proceeding is not complicated. It involves the usual issues in a construction lien case. The case should have moved forward crisply. It did not. I find that the delay here is inordinate.

[11] Whether the delay is inexcusable requires an explanation from the plaintiff concerning the delay. Of course, neither the plaintiff nor its lawyer were present at the hearing to offer any explanation. I draw the inference from this that IMS has no explanation for the delay. Indeed, the evidence that Ms. Carvevale lost touch with IMS years ago indicates that IMS has lost all interest in this case. I find that the delay is inexcusable.

[12] Whether the delay has caused a substantial risk of an unfair trial of the issues due to the delay was the focus of the motion. I adjourned the motion initially to allow the defendants to file evidence on this issue. In the supplementary motion record, Ms. Wilkinson swore an affidavit wherein she stated that the defendants contemplated calling Messrs. Glushko, Sterrett and McAllister as their trial witnesses.

[13] Ms. Wilkinson advised in her affidavit that she had approached these men recently. Mr. Glushko told Ms. Wilkinson that he no longer had in his possession the notes and other relevant documents he made and consulted in preparing his report and concerning his inspections. He told Ms. Wilkinson that he could not recall this inspection and that any new inspection was impossible since the alleged deficiencies had been remedied in the meantime. Mr. Glushko said that he would have to rely entirely on his report that the defendants have in their possession.

[14] Mr. Sterrett advised Ms. Wilkinson that he no longer had his notes about the deficiencies and his correction and completion work, and that he had difficulty recalling what he did on the project after over 9 years ago. Mr. Sterrett said in an email dated May 14, 2021 that he recalled there being a flood in the premises that led him to replace the main breaker panel. He said that he had limited recollection of the other work he did.

[15] Mr. McAllister also said that he no longer had his notes and records of his work. He stated in an email dated May 12, 2021 that he recalled there being water damage originating from poor workmanship in the ensuite shower, and that he repaired the shower and the water damage.

[16] Ms. Wilkinson added that the defendants themselves have memories of this project that have faded over these 9 years.

[17] Based on this evidence, I am satisfied that the plaintiff’s inordinate and inexcusable delay has prejudiced the defendants’ ability to defend this action. The defendants’ key witnesses and the defendants themselves will not be able to present the same cogent and effective evidence had there been no such delay.

[18] I, therefore, find that the defendants have proven that this action should be dismissed for delay, and that the IMS claim for lien and certificate of action should be discharged. I made this decision on May 31, 2021. I informed Mr. Dhillon of this decision at that time and advised him that I would be drafting this Endorsement to explain my decision.

[19] I note incidentally that Ms. Wilkinson raised other issues that arose for the defendants on account of this delay, namely their inability to get refinancing, their inability to sell their house and the strain this all put on their marriage to the point where their marriage has broken down. While this is regrettable, I view these issues as collateral to the more relevant issues of prejudice noted above.

[20] The Wilkinsons claim the costs of this motion, not the proceeding. They filed a costs outline. It shows that Mr. Dhillon spent 9.8 hours on this motion, that his actual hourly rate varied from $320 and $350, that the claimed disbursements are $418.83, and that the total actual costs are $4,125.23. I note that the defendants do not include any costs in the proceeding in general that they spent between 2011 to 2016. I do not fault Mr. Dhillon for having to come back a second time with evidence concerning prejudice. The other work and the disbursements seem reasonable. That the plaintiff should pay substantial indemnity costs arises from its total failure to prosecute this action to the prejudice and damage of the defendants. There is no counterclaim. The onus was on the plaintiff to move this action forward and it failed to do so.

[21] I award the defendants $4,000 in substantial indemnity costs. I made this decision on May 31, 2021, and I advised Mr. Dhillon of this decision at that time as well.

DATE: June 1, 2021

MASTER C. WIEBE