Child & Family Services 2021 ONSC 5631
COURT FILE NO.: CV-15-09
DATE: 2021-08-23
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
M. JANICE HENDERSON and JAMES A. HENDERSON
Plaintiffs
- and -
KENORA-RAINY RIVER DISTRICTS CHILD & FAMILY SERVICES and THE ESTATE OF BETTY ZIMMERMAN by estate trustees Bernard Martin Zimmerman and Elisabeth Forrester, and THE ESTATE OF MIKE ZIMMERMAN by estate trustees Bernard Martin Zimmerman and Elisabeth Forrester
Defendants
- and –
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO and ATTORNEY GENERAL OF CANADA
Third Parties
Counsel:
Mr. J. Van Bakel agent for Ms. J. Hull, for the Plaintiffs
Mr. H. Stone, for Defendant Kenora-Rainy River Districts Child & Family Services
Mr. R. Sinding, for Defendants Estate of Betty Zimmerman and for Estate of Mike Zimmerman
Ms. R. Li, for Third Party Her Majesty the Queen in Right of Ontario
Ms. D. Fernandes, for Third Party Attorney General of Canada
HEARD: May 26, 2021 via Zoom
Justice J. Fregeau
INTRODUCTION
[1] The plaintiffs bring this motion for a status hearing under Rule 48.14(5) of the Rules of Civil Procedure R.R.O. 1990, Reg. 194. The plaintiffs are seeking an order extending the dismissal timelines set under Rule 48.14(1) and setting a timeline for the completion of the remaining steps necessary to have the action set down for trial. The plaintiffs further seek an order extending the date to set this action down for trial until May 26, 2022.
[2] The defendants, Kenora-Rainy River Districts Child & Family Services (“KRRDCFS”), The Estate of Betty Zimmerman and the Estate of Mike Zimmerman (the “Zimmerman Estates”) are opposed to the relief sought by the plaintiffs and seek to have the action dismissed.
[3] Her Majesty the Queen in Right of Ontario (“Ontario”) and the Attorney General of Canada (“Canada”) did not participate in the hearing of the motion and take no position on the relief sought by the plaintiffs.
BACKGROUND
[4] The plaintiffs’ Statement of Claim was issued on February 17, 2015. The plaintiffs claim damages of approximately $1,000,000.00 against the defendants as follows:
As against KRRDCFS for negligence, breach of fiduciary duty and breach of non-delegable duty; and
As against the Zimmerman Estates for sexual assault and/or physical assault and battery and/or psychological abuse and/or intentional infliction of mental distress, negligence and breach of fiduciary obligations.
[5] The plaintiffs’ alleged injuries are said to have been sustained between 1966 and 1974 when the plaintiffs were under the care of KRRDCFS and placed in the foster home of Betty and Mike Zimmerman in the town of Emo, Ontario with the Zimmermans’ eight biological children.
[6] In general terms, the plaintiffs allege that they suffered physical abuse by the Zimmermans, including punching, slapping, being strapped, and being locked in a barn. Janice Henderson alleges that in 1970, when she was 12 years old, she was sexually abused by Rudy Himsl, a family friend of the Zimmermans who resided with them at some point between 1966 and 1974. Mr. Himsl passed away in 1974.
[7] All defendants filed their Statements of Defence in June 2015. On June 10, 2015 the plaintiffs were advised that KRRDCFS would be commencing third party proceedings against Ontario. Due to the requisite 60-day notice period before commencing proceedings against Ontario, KRRDCFS’ third party claim against Ontario was not issued until September 17, 2015. The plaintiffs served their Reply to KRRDCFS’ Statement of Defence on July 3, 2015.
[8] On July 16, 2015, with pleadings in the main action now closed, the plaintiffs started to canvass dates for examinations for discovery. At this time, KRRDCFS’ third party claim had not yet been issued against Ontario, affidavits of documents and productions had not been exchanged and a discovery plan had not been agreed upon. On August 24, 2015, KRRDCFS advised the plaintiffs that it was premature to schedule examinations for discovery until pleadings were closed and a discovery plan agreed upon.
[9] Ontario filed a Statement of Defence to the Main Action and Crossclaim of the Third Party on February 3, 2016.
[10] On May 9, 2016, the plaintiffs served their discovery plan which proposed, among other things, that the plaintiffs and the Zimmermans be examined for discovery during the “Summer/Fall 2016”.
[11] On May 12, 2016, counsel for the Zimmermans served a Motion Record, returnable June 29, 2016, seeking the appointment of a litigation guardian for Betty Zimmerman who was suffering from early stage dementia. Counsel for the Zimmermans requested that a discovery plan not be finalized until that motion was heard or that the discovery plan be sufficiently flexible to allow the proposed litigation guardian for Betty Zimmerman to be examined in her place.
[12] On June 6, 2016, KRRDCFS proposed that the examinations for discovery of the plaintiffs and the Zimmermans take place on August 11 and 12, 2016 in Fort Frances, which was agreed to by all parties. KRRDCFS served its affidavit of documents on the plaintiffs on July 6, 2016 and its Schedule A documents on July 8, 2016. KRRDCFS served the Zimmermans on July 13, 2016. On July 19, 2016 the plaintiffs served their sworn affidavits of documents and Schedule A documents.
[13] On July 19, 2016, a dispute arose between the plaintiffs and the Zimmermans with respect to who would be examined first. On that date, counsel for the Zimmermans emailed counsel for the plaintiffs insisting that the plaintiffs be examined first and proposing a conference call between all counsel to clarify the discovery plan.
[14] On July 21, 2016, counsel for the plaintiffs emailed all other counsel and proposed that the examination for discovery of the plaintiffs proceed on August 11 and 12, 2016 and that a future date for the discovery of Mr. Zimmerman be scheduled in consultation with his counsel, Mr. Sinding.
[15] Counsel for KRRDCFS replied to the plaintiffs’ counsel on July 22, 2016, suggesting that the plaintiff’s affidavits of documents indicated that “numerous relevant documents” were not yet in the possession of plaintiffs’ counsel and would not likely be in the possession of counsel in time for the examinations of the plaintiffs scheduled for August 11 and 12, 2016. KRRDCFS proposed that the examinations of the plaintiffs could begin on August 11 and 12, 2016 based on documents then available and resume at a later date once the remaining documents become available, or that examinations be re-scheduled once plaintiffs’ counsel was in possession of all relevant documents.
[16] On July 22, 2016, counsel for the plaintiffs responded to counsel for KRRDCFS as follows:
Thank you…for your correspondence of this date. I suggest that we reschedule the discoveries as we are awaiting documents from Ontario as well as some of the plaintiffs’ documents.
[17] On July 25, 2016, counsel for the plaintiffs proposed several dates in October and November 2016 for the examinations for discovery of the plaintiffs and Mr. Zimmerman. As of the next day, the dates of October 3, 4 and 5, 2016 had been agreed to by all parties. It was also agreed that Mr. Zimmerman’s examination would proceed as a Rule 36 examination due to his frail health.
[18] Upon its review of the plaintiffs’ affidavits of documents, KRRDCFS learned that the plaintiffs had been in the Indian Residential School System (“IRSS”) and that they had received compensation for harm suffered while in the IRSS. On September 19, 2016, KRRDCFS put Canada on notice, copied to all other parties, that it had instructions to commence third party proceedings against Canada and that KRRDCFS expected to issue that third party claim before the end of October 2016. KRRDCFS also advised Canada that examinations for discovery of the plaintiffs and Mr. Zimmerman would be taking place on October 3-5, 2016 and invited Canada to attend although Canada was not yet a party to the action.
[19] On September 19, 2016, KRRDCFS advised the plaintiffs that Canada had been invited to attend – but not participate in – discoveries and that, given Mr. Zimmerman’s health, KRRDCFS did not think it was advisable to delay examinations for discovery.
[20] On September 20, 2016, counsel for the plaintiffs advised KRRDCFS that the plaintiffs were opposed to the addition of Canada as a third party in this action on the basis that Canada could not possibly be liable for any of the plaintiffs’ damages which are the subject of this action and was not therefore a proper party to the action.
[21] On September 20, 2016, the plaintiffs cancelled the examinations for discovery scheduled for October 3-5, 2016, stating that “…it will be necessary to postpone the Examinations for Discovery of the plaintiffs, so that they are not exposed to any risk of having to be discovered twice” (once by the defendants and then later by the third party). Counsel for the plaintiffs did not know, at this time, if Canada would be defending the main action.
[22] On September 21, 2016, counsel for Mr. Zimmerman advised all other counsel that he would not produce his client, either for discovery or for a Rule 36 examination, without having first examined the plaintiffs.
[23] In a letter from Canada to KRRDCFS dated September 28, 2016 and copied to all other parties, Canada stated that it would not be sending counsel to the examinations for discovery in October 2016 and would move to strike the third party claim if it was issued.
[24] At this point in time, given Mr. Zimmerman’s frail health, it was unlikely that he would be able to provide evidence at trial. On October 4, 2016, Mr. Sinding, counsel for Mr. Zimmerman, attempted to preserve Mr. Zimmerman’s evidence by video-recording a question and answer session between the two of them, and having Mr. Zimmerman execute an affidavit. This was done without Mr. Sinding having previously examined the plaintiffs for discovery. It was previously agreed that this evidence would be admissible at trial, subject to weight and reliability. A Rule 36 examination of Mr. Zimmerman was not done.
[25] KRRDCFS issued the third party claim against Canada on January 16, 2017. To date, Canada has not filed a Statement of Defence to the third party claim.
[26] On February 27, 2017, the plaintiffs requested the availability of other counsel in 2017 for the purpose of rescheduling examinations for discovery. KRRDCFS replied on March 24, 2017 and indicated that it was not prepared to schedule dates until it received Canada’s Statement of Defence, affidavit of documents and productions. It is not in dispute that counsel for KRRDCFS did not press Canada to produce its pleadings and documents. KRRDCFS also renewed their request for disclosure of the plaintiffs’ Independent Assessment Process (“IAP”) documents, which the plaintiffs had refused to produce. The Zimmermans took the same position and reiterated their need for an amended affidavit of documents from Janice Henderson.
[27] On April 5, 2017, the plaintiffs served their Schedule A productions on KRRDCFS.
[28] As of July 2017, Canada had still not served its Statement of Defence. On July 20, 2017, counsel for Canada wrote to KRRDCFS stating that she had instructions to move to strike the third party claim brought against it. Canada has never brought this motion.
[29] On August 2, 2017, plaintiffs’ counsel emailed KRRDCFS as follows:
This is to request that you postpone delivering further Statements of Defence in the above matters. Our research is ongoing. We now intend to amend our existing claims to add Canada, Ontario and any insurers. We are also seeking instructions from all of our clients who attended residential school to amend their claims to exclude claims for compensation for any portion of their injuries that resulted from attendance at residential school.
[30] In August/September of 2017, counsel for the plaintiffs reconsidered her litigation strategy and decided to explore whether a class proceeding would be a more appropriate vehicle for the plaintiffs to pursue their claims against the KRRDCFS and their former foster parents. At this time, plaintiffs’ counsel had carriage of numerous separate actions commenced against the KRRDCFS involving allegations of historic sexual and physical abuse. KRRDCFS’ counsel in this action also acted for KRRDCFS in the other actions.
[31] Former counsel for the plaintiffs deposes as follows:
By September 2017 I had more clients with claims issued, or to be issued, against KRRDCFS. I believed that there were many more similar potential claims. As a result, from late September 2017 until approximately December 2018, I had discussions with three different class- action law firms from Toronto regarding the viability of pursuing claims against KRRDCFS as class actions. Those firms provided me with legal advice as to potential class action strategies. I have not, and do not, waive any privilege regarding those discussions. Accordingly, due to the confidential and privileged nature of those discussions, I am not at liberty to disclose the names of the firms or to comment upon what was discussed in a public forum. However, I can confirm that it was contemplated during that time that Janice Henderson would be put forward as a representative plaintiff, and she travelled to Toronto to meet with one class action firm to explore that possibility. However no class action was commenced with any of the three class-action firms.
[32] However, 17 months later, on February 21, 2019, the plaintiff Janice Henderson instructed counsel for the plaintiffs that she would not act as a representative plaintiff in a class action against KRRDCFS. The record contains no evidence as to why these fundamental instructions were not sought much earlier. On March 19, 2019, former counsel for the plaintiffs advised all other counsel that she was going to amend the Statement of Claim to confirm that the plaintiffs were not seeking compensation for any damages attributable to their attendance at Residential Schools and to add Ontario as a defendant to the main action. This was never done.
[33] Former counsel for the plaintiffs further deposes that:
As a result, I informed Ms. Henderson that we would move forward immediately with her existing case. I did not take timely steps to do so and any delay for the period of time following February 21, 2019 is attributable to me, as plaintiff’s counsel.
[34] On November 20, 2019, former counsel for the plaintiffs sought to extend the timeline to set the action down for trial and to discontinue against the Zimmermans. On November 25, 2019, KRRDCFS advised the plaintiffs’ former counsel that KRRDCFS would not agree to an extension and would not consent to a discontinuance of the action as against the Zimmermans.
[35] The defendant Betty Zimmerman died on September 17, 2017. The defendant Mike Zimmerman died on October 24, 2018. The plaintiffs did not requisition an Order to Continue the action against the estates of Betty Zimmerman and Mike Zimmerman until January 2020. Counsel for the Zimmermans did not requisition an Order to Continue, nor did he move to have the action dismissed for delay pursuant to Rule 11.03.
[36] On January 15, 2020, after learning of the omission to set the action down for trial within the stipulated timeframe, the plaintiffs retained new counsel to assume carriage of the file. The plaintiff’s newly retained counsel emailed all other counsel re-circulating a timetable that former counsel had proposed in November 2019. Counsel for the defendants declined to consent to a timetable, therefore requiring the plaintiffs to bring this motion for a status hearing.
[37] This motion was originally returnable May 28, 2020. On or about March 31, 2020 the motion was adjourned as a result of the suspension of court operations due to the COVID-19 pandemic. On November 10, 2020, it was agreed that this motion would be heard on May 26, 2021.
[38] Once it became apparent that a contested status hearing was inevitable, counsel for the plaintiffs and KRRDCFS began to attempt to locate potential witnesses who may have information relating to the time the plaintiffs were under the care of KRRDCFS and placed in the foster care of the Zimmermans.
[39] The plaintiffs have located a brother, sister, step-mother and various friends of the plaintiffs who are apparently “aware of the abuse” allegedly suffered by the plaintiffs while in the Zimmermans’ foster home and available as “potential witnesses”. The plaintiffs have also identified two former KRRDCFS social workers who were involved with the plaintiffs’ file; only one has been located to date. The plaintiffs further depose that six of the Zimmermans’ children are alive and potential witnesses to the alleged incidents of abuse and the “general conditions of the plaintiffs’ experience as foster children” while in their parents’ care.
[40] The KRRDCFS have contacted one former foster parent of Janice Henderson with whom Ms. Henderson was placed after she left the Zimmermans’ home. This witness is approximately 85 years old and does not have a good recollection of events which may have occurred over 45 years ago. The KRRDCFS have been unsuccessful in locating other foster parents with whom the plaintiffs may have lived subsequent to their time at the Zimmernans’.
[41] The KRRDCFS located one former teacher of the plaintiffs who recalled teaching the plaintiffs in the early 1970’s. Four other former educators of the plaintiffs whom KRRDCFS attempted to contact are deceased.
[42] The KRRDCFS have located three former CAS fieldworkers who worked in the Fort Frances/Emo areas during the relevant time period; two have no recollection of the plaintiffs, one, 88 years old and in poor health, has indicated that he has a clear recollection of the plaintiffs and their time with the Zimmermans. The KRRDCFS has been unable to locate any of the other former CAS workers who the records indicate may have relevant information.
THE POSITIONS OF THE PARTIES
The Plaintiffs’ Position
[43] The plaintiffs submit that the Ontario Court of Appeal has established, in Faris v. Eftimovski, 2013 ONCA 360, that the test under Rule 48.14 has two parts:
The plaintiff must first demonstrate that there is an acceptable explanation for the delay in prosecuting the action; and
That if the action were allowed to proceed the defendant would suffer no non-compensable prejudice.
[44] The plaintiffs acknowledge that there are certain steps which the plaintiffs’ former counsel could have taken to move the action along more efficiently but submit that that is not the test. The plaintiffs contend that the requirement that the delay be “inexcusable” requires a determination of the reasons for the delay and an assessment of whether those reasons provide an adequate explanation for the delay. What is required, according to the plaintiffs, is a “contextual assessment which looks at the delay as a whole”.
[45] The plaintiffs do not dispute that they are primarily responsible for advancing the action to trial. However, the plaintiffs contend that the conduct of all parties in relation to the litigation is relevant to the court’s assessment of litigation delay.
[46] In this context, the plaintiffs submit that KRRDCFS and the Zimmermans created procedural and production roadblocks by refusing to schedule discoveries without Canada’s Statement of Defence or productions while at the same time doing nothing to advance that third party claim. The plaintiffs further submit that the defendants did nothing to preserve the evidence of, or even locate, potential witnesses until after the status hearing was convened.
[47] The plaintiffs submit that the litigation delay which occurred between September 2017 and February 2019, during which the plaintiffs’ former counsel was considering advancing the Henderson’s claims via a class proceeding, was both “explainable” and “acceptable” because counsel was motivated to have her clients’ claims determined in an efficient and effective manner. The plaintiffs concede that the nine-month delay between February 2019 (when Ms. Henderson advised counsel that she did not want to be a representative plaintiff) and November 2019 (when counsel circulated a proposed timetable) has not been adequately explained.
[48] The plaintiffs submit that the essence of their claim is historic sexual and physical abuse and that in such cases, different considerations apply with respect to the prejudice analysis. The plaintiffs contend that the appropriate focus for this court is on actual prejudice, not presumed prejudice, that would impair the defendants’ ability to have a fair trial.
[49] The plaintiffs submit that it was obvious to all parties as early as 2016 that both the Zimmermans would be unable to give evidence at trial. The plaintiffs also contend that counsel for KRRDCFS did not attempt to locate witnesses until November 2020, more than five years after being retained.
[50] The plaintiffs suggest that historical sexual abuse cases generally turn on the credibility of the plaintiffs and that it is a common feature of these cases that there may be an imbalance of available witnesses on the defence side. This would have been the situation in this case even if the plaintiffs had set the matter down in a timely fashion, such that there is no prejudice occasioned by the plaintiffs’ counsel’s litigation delay, according to the plaintiffs.
[51] The plaintiffs further submit that there are many potential witnesses with direct knowledge of the Hendersons’ allegations who are still available to verify or contradict their assertions, including the plaintiffs’ siblings and step-mother, friends of Janice Henderson, two former KRRDCFS social workers and the six surviving Zimmerman children. The plaintiffs submit that the defendants took no steps to preserve relevant witness testimony or evidence until after this status hearing was convened and suggest that their failure to act diligently to preserve evidence cannot form the basis for assessing prejudice.
[52] The plaintiffs submit that they have shown cause why this action should not be dismissed for delay and request an order extending the date to set this action down for trial until May 26, 2022.
The Defendant KRRDCFS’ Position
[53] KRRDCFS submits that the following is a fair summary of the litigation timeline in this case:
February 17, 2015 – claim issued;
October 29, 2015 – KRRDCFS requested a discovery plan;
May 9, 2016 – plaintiffs delivered a deficient discovery plan;
July 9, 2016 – plaintiffs delivered a deficient affidavit of documents;
July 22, 2016 – plaintiffs cancelled the August 11 and 12, 2016 examinations;
September 20, 2016 – plaintiffs cancelled the October 3-5, 2016 examinations;
February 27, 2017 – plaintiffs attempted to reschedule examinations;
April 5, 2017 – plaintiffs served hard copies of their documents;
August 2017 – plaintiffs placed action in abeyance;
March 2019 – plaintiffs’ counsel advised opposing counsel that she had instructions to proceed but did not do so;
November 2019 – plaintiffs sought an extension of time to set the matter down for trial in order to avoid a status hearing;
January 2020 plaintiffs’ new counsel served status hearing motion record.
[54] KRRDCFS submits that from the commencement of this action on February 17, 2015 to the date of the status hearing on May 26, 2021, a period of six years and three months passed with the action still in its infancy for three reasons:
The plaintiffs’ ongoing failure to make proper documentary production;
The plaintiffs’ cancellation of two examinations for discovery; and
Several years of the plaintiffs’ inaction.
[55] KRRDCFS submit that, to avoid dismissal, the plaintiffs bear the onus of establishing:
An acceptable explanation for the delay; and
That the defendants will not sustain any non-compensable prejudice if the action is allowed to proceed.
[56] KRRDCFS submit that the test focuses on the action or inaction of the plaintiffs who have the primary obligation to move the action forward. KRRDCFS acknowledges that actions by the defendants to actively obstruct the plaintiffs in setting the action down for trial must be considered where appropriate. However, KRRDCFS submits there were no such obstructive tactics employed by any of the defendants in this case.
[57] KRRDCFS contend that where a plaintiff intentionally holds an action in abeyance in the absence of an express agreement of all parties, as the plaintiffs did in this case for approximately 26 months between August/September 2017 and November 2019, the resulting delay will be unexplainable and unacceptable and should result in the action being dismissed.
[58] KRRDCFS further submits that the plaintiff also bears the onus of establishing that the defendants will not sustain any non-compensable prejudice from the delay if the action proceeds to trial. KRRDCFS suggest that the longer the delay, the stronger the inference of prejudice to the defence flowing from that delay.
[59] KRRDCFS acknowledges that the conduct of a defendant may be considered in assessing prejudice and that a defendant may have an obligation to preserve evidence. However, KRRDCFS submits that a defendant cannot be faulted for holding off on the expensive and time consuming process of attempting to preserve evidence to be used at trial when a plaintiff does nothing to move a case forward and/or where the specific factual allegations of the plaintiff have not been disclosed and the defendants do not have knowledge of the specific case to meet because examinations for discovery have not taken place.
[60] KRRDCFS submits that the plaintiffs have failed to rebut the presumption of prejudice and further contend that the defendants have sustained actual prejudice. KRRDCFS submits that there are limitation periods applicable to the plaintiffs’ claims which have passed, including under the Trustee Act and the Limitations Act, 2002. KRRDCFS also contend that, given the length of the delay in this case, there is also “delay” presumed prejudice – witnesses that can be located are all elderly with failing health/memories, other witnesses are dead or cannot be located.
[61] KRRDCFS submits that the plaintiffs are critical of the defendants for failing to preserve evidence even though the plaintiffs themselves made no such efforts. KRRDCFS further submit that it did not seek to preserve the evidence of potential witnesses under oath for trial purposes for two reasons:
It was necessary to hear the plaintiffs’ discovery evidence in order to determine whose evidence might be relevant; and
After the plaintiffs cancelled discoveries twice in 2016, they failed to advance the action for three years thereafter.
[62] KRRDCFS contend that these two factors made the time, effort and expense of locating potential witnesses and preserving their evidence concerning events alleged to have occurred 50 years ago unjustifiable.
[63] KRRDCFS submit that the defendants have incurred actual prejudice. The Zimmermans – both crucial and necessary witnesses to rebut allegations of serious and repeated abuse – have passed away. KRRDCFS contend that the transcript/video evidence of Mike Zimmerman is virtually useless, having been taken in the absence of the plaintiffs’ oral evidence detailing the specific allegations against he and his wife and not having been subjected to cross-examination.
[64] Significantly, according to KRRDCFS, the transcript/video evidence of Mike Zimmerman does not address the placement of the plaintiffs in the Zimmermans’ foster home or the supervision of the Zimmermans as foster parents of the plaintiffs. KRRDCFS submits that there is no preserved evidence as to important issues that KRRDCFS needs to address in the litigation.
[65] KRRDCFS submits that the plaintiffs have failed to rebut the presumption of prejudice, that the defendants have sustained actual prejudice and that the action should be dismissed on this ground as well.
The Defendants the Zimmermans’ Estates Position
[66] The Zimmermans submit that the Ontario Superior Court of Justice, in Madill v. Brookfield, 2013 ONSC 7357, at para. 4, places the onus “squarely on the shoulders of the plaintiff facing a show cause to demonstrate why the action should be permitted to proceed in the face of delay”.
[67] The Zimmermans submit that it is obvious that the plaintiffs have been delinquent in the prosecution of this action – more than five years have passed and examinations for discovery have not yet taken place. The Zimmermans further submit that the plaintiffs have failed to provide an adequate explanation for the inordinate five-year delay in this case.
[68] The Zimmermans submit that credibility and reliability are crucial in a historical assault/sexual assault case such as this. These defendants contend that the death of two key, material witnesses for the defence, after the action was commenced but who had testimonial capacity when the action was commenced, amounts to non-compensable prejudice. The application for a litigation guardian for Betty Zimmerman and the failing health and capacity of Mike Zimmerman in 2016 put the plaintiffs on notice of the need to move the matter forward promptly, according to the Zimmermans. The Zimmermans submit that the plaintiffs, however, did virtually nothing to prosecute their action despite their knowledge of these facts.
[69] More broadly, the Zimmermans submit that excusing a delay of this magnitude risks undermining public confidence in the administration of justice. These defendants request the plaintiffs’ motion be dismissed with costs.
THE TEST UNDER RULE 48
[70] Rule 48.14 (7) provides as follows:
At a status hearing, the plaintiff shall show cause why the action should not be dismissed for delay, and the court may,
a. dismiss the action for delay; or
b. if the court is satisfied that the action should proceed,
i. set deadlines for the completion of the remaining steps necessary to have the action set down for trial or restored to a trial list, as the case may be, and order that it be set down for trial or restored to a trial list within a specified time,
ii. adjourn the status hearing on such terms as are just,
iii. if Rule 77 may apply to the action, assign the action for case management under that Rule, subject to the direction of the regional senior judge, or
iv. make such other order as is just.
[71] The test under Rule 48.14 has two parts: the plaintiff must first demonstrate that there is an acceptable explanation for the delay in prosecuting the action and second, that if the action were allowed to proceed the defendant would suffer no non-compensable prejudice (Faris v. Eftimovski, 2013 ONCA 360 (Ont. C.A.) at para. 32).
[72] In Slota v. Kenora-Rainy River Districts Child and Family Services, 2019 ONSC 126, at para. 29, Kimmel J., citing Cedron-Sni Inc. v. Meltwater Holding, 2017 ONSC 3387 (Ont.S.C.J.) at para. 6, summarized the guiding principles to be observed in the application of the Rule 48.14 two-part test on a contested status hearing (all citations omitted):
a. The test is conjunctive, not disjunctive. Even if the plaintiff can provide a satisfactory explanation for the delay, the action will be dismissed if there would be prejudice to the defendant. And if the plaintiff is not able to provide a satisfactory explanation for the delay, it is still open to the court to dismiss the action, even if there is no proof of actual prejudice to the defendant.
b. The responsibility to move the action along lies chiefly with the plaintiff. However, the conduct of a defendant is also a factor to be considered in determining whether the action should be dismissed for delay or allowed to proceed. The conduct of the defendant may be particularly relevant where the defendant engages in tactics that are not consistent with a willingness to see a case proceed expeditiously; however, a defendant cannot be accused of "lying in the weeds" to gain a tactical advantage in the absence of any initiative on the part of the plaintiff. A defendant should not be required to spend time and money to prepare for a case that is dead on the vine.
c. The possible dismissal of an action for delay involves a careful balancing between the interests of the parties and society in timely and efficient justice on one hand and in the resolution of disputes on their merits, on the other.
d. There is little to be gained in debating whether there is a bright line between the "contextual approach" applicable to motions to set aside registrar's dismissal orders and the approach taken in Faris to status hearings. In considering the reasonableness of any explanation for delay, the status hearing court will almost invariably engage in a weighing of all relevant factors in order to reach a just result.
e. It is reasonable to approach the plaintiff's explanation for the delay in an action on the basis that "the longer the delay, the more cogent the explanation must be”.
f. The prejudice at issue is to the defendant's ability to defend the action as a result of the plaintiff's delay, not as a result of the sheer passage of time.
g. A defendant's lack of display of any sense of urgency undercuts any claim of actual prejudice.
DISCUSSION
[73] As noted by Kimmel J. in Slota at para. 34, the issues to be decided on a contested status hearing are:
Has the plaintiff provided an acceptable explanation for the delay in prosecuting the action that justifies its continuation?
If the action is allowed to proceed, has the plaintiff satisfied the court that the defendants would suffer no non-compensable prejudice?
Have the Plaintiffs Provided an Acceptable Explanation for the Delay?
[74] For the following reasons, I conclude that the plaintiffs have not provided a satisfactory explanation for the delay in this case.
[75] The incidents which form the subject matter of the plaintiffs’ claims are alleged to have occurred between 1966 and 1974, approximately 45 - 50 years prior to the issuance of the Statement of Claim on February 17, 2015. The defendants’ Statements of Defence were delivered in June 2015 and pleadings in the main action closed in July 2015. This motion for a status hearing was initiated in January 2020.
[76] In January 2020, five years following the issuance of the Statement of Claim, the action remained in its infancy with examinations for discovery not yet having been conducted. As observed in Slota and Cedron-Sni Inc, it is reasonable to approach the plaintiffs’ explanation for the delay in this action on the basis that “the longer the delay, the more cogent the explanation must be”.
[77] It was KRRDCFS who proposed, on June 6, 2016, that examinations for discovery be scheduled for August 11 and 12, 2016. All other parties agreed. Affidavits of documents and Schedule A documents were thereafter exchanged in July 2016.
[78] On July 22, 2016, KRRDCFS advised the plaintiffs that a number of relevant documents were not yet in the possession of plaintiffs’ counsel and would likely not be in the possession of counsel sufficiently in advance of the scheduled discoveries to allow counsel for KRRDCFS to analyze them prior to the scheduled August 11 and 12, 2016 discovery dates.
[79] This issue arose because the plaintiffs delivered a deficient affidavit of documents. Far from being obstructive, KRRDCFS proposed a reasonable and logical resolution in the alternative – begin discoveries on August 11 and 12, 2016 based on partial documentary disclosure and resume at a later date once the outstanding documents became available or reschedule examinations once plaintiffs’ former counsel was in possession of all relevant documents.
[80] On July 22, 2016, former counsel for the plaintiffs chose the latter and cancelled the August 11 and 12, 2016 examinations for discovery. Former counsel for the plaintiffs did not dispute KRRDCFS’ assertion that some of the plaintiffs’ documents remained outstanding. Former counsel for the plaintiffs further accepted that examinations could not be completed without such documents. KRRDCFS’ position was reasonable and not in the least obstructive. The record on this motion confirms that the cancellation of the August 11 and 12, 2016 examinations for discovery was the decision of plaintiffs’ former counsel and triggered as a result of the plaintiffs’ failure or inability to make full documentary disclosure in advance of discoveries.
[81] Within one day of the plaintiffs proposing October and November 2016 dates for the examinations for discovery of the plaintiffs and Mr. Zimmerman, all counsel agreed that examinations be scheduled for October 3-4, 2016.
[82] As a result of its review of the plaintiffs’ productions, delivered in late July 2016, on September 19, 2016, KRRDCFS put Canada on notice, and made all other parties aware, that it intended to commence third party proceedings against Canada. The next day, for reasons not adequately explained on this motion and prior to any response from Canada, former counsel for the plaintiffs chose to cancel the examinations scheduled for October 3-5, 2016.
[83] In my opinion, albeit employing some measure of hindsight, there was no compelling reason for plaintiffs’ former counsel to cancel the October 2016 examinations for discovery simply because of KRRDCFS’ decision to commence third party proceedings against Canada, and there was certainly no reason to do so without hearing from Canada.
[84] The plaintiffs made some attempts to reschedule examinations for discovery in 2017. KRRDCFS resisted doing so, indicating that it was not prepared to do so until it had received Canada’s Statement of Defence, affidavit of documents and productions while at the same time doing nothing to compel Canada to provide same. At the same time, both KRRDCFS and the Zimmermans were demanding that the plaintiffs disclose their IAP documents, which the plaintiffs refused to produce.
[85] However, on August 2, 2017, two and one-half years after the Statement of Claim was issued, plaintiffs’ former counsel essentially suspended the prosecution of this action indefinitely. Plaintiffs’ counsel at the time, was acting for a number of clients with similar claims against KRRDCFS. It appears that plaintiffs’ former counsel was unsure of her strategy going forward on these claims – either Canada and Ontario were going to be brought into existing actions and claims amended or a class proceeding against KRRDCFS was going to be commenced with Janice Henderson being the proposed representative plaintiff.
[86] Approximately 18 months passed while plaintiff’s former counsel contemplated the “viability of pursuing claims against the KRRDCFS as class actions”. This was a unilateral decision of plaintiffs’ former counsel to suspend this action while contemplating an alternative litigation strategy which ultimately went nowhere.
[87] On February 19, 2019, former counsel for the plaintiffs abandoned the pursuit of a class action proceeding against KRRDCFS because Janice Henderson declined being a representative plaintiff. Approximately one month later, plaintiffs’ former counsel advised all other counsel in this action that she was going to “kickstart” this action by amending the Statement of Claim and adding Ontario as a defendant in the main action. This was not done. Plaintiffs’ former counsel has conceded that any delay following February 19, 2019 is attributable to her.
[88] I find that the plaintiffs have not satisfactorily explained the delay in advancing this action between August 2017 and February 2019. There is no satisfactory explanation for delaying the action for 18 months while considering the possibility of a class action proceeding after plaintiffs’ former counsel had already cancelled examinations for discovery in August and October 2016. The stated reason for this extensive delay is, in my opinion, without substance and inadequate in the overall context of the action. As noted, the plaintiffs concede that there is no acceptable explanation for the delay between February 2019 and January 2020.
[89] In conclusion, the only delay contributed to by the defendants’ conduct is the six-month delay in 2017 during which the defendants refused to reschedule examinations for discovery without having Canada’s Statement of Defence and productions. I reject the plaintiffs’ submission that counsel for KRRDCFS is somehow responsible for the cancellation of examinations for discovery in August and October 2016.
[90] The period of delay from August 2017 to January 2020 occurred firstly, as a result of plaintiffs’ former counsel contemplating an alternative litigation strategy which never came to fruition and, secondly, as a result of plaintiff’s counsel’s simply not acting on the file after knowing the alternative litigation strategy was not proceeding.
[91] I find that the plaintiffs have failed to demonstrate that there is an acceptable explanation for the delay in prosecuting this action and that the plaintiffs have therefore failed to show cause why the action should not be dismissed for delay. As a result of this conclusion, I decline to consider if the defendants would suffer non-compensable prejudice if the action were allowed to proceed.
[92] The plaintiffs’ motion is dismissed and the action is dismissed for delay pursuant to Rule 48.14(7)(a). If the parties cannot agree on the costs of this motion and the action they shall file written submissions as to costs, not to exceed five pages exclusive of their respective Bills of Costs. The defendants Costs Submissions shall be filed with 14 days of the release of this decision; the plaintiffs’ within seven days thereafter.
The Hon. Justice J. Fregeau
Released: August 23, 2021
Child & Family Services 2021 ONSC 5631
COURT FILE NO.: CV-15-09
DATE: 2021-08-23
BETWEEN:
M. JANICE HENDERSON and JAMES A. HENDERSON
Plaintiffs
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KENORA-RAINY RIVER DISTRICTS CHILD & FAMILY SERVICES and THE ESTATE OF BETTY ZIMMERMAN by estate trustees Bernard Martin Zimmerman and Elisabeth Forrester, and THE ESTATE OF MIKE ZIMMERMAN by estate trustees Bernard Martin Zimmerman and Elisabeth Forrester
Defendants
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HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO and ATTORNEY GENERAL OF CANADA
Third Parties
REASONS FOR DECISION
Fregeau J.
Released: August 23, 2021
/sf