Court File and Parties

COURT FILE NO.: CV-13-481675

MOTION HEARD: 20210804

REASONS RELEASED: 20211108

SUPERIOR COURT OF JUSTICE – ONTARIO

BETWEEN:

AMIR KAMALIE Plaintiff

• and-

STEVEN KHARI and HSC HOLDINGS INC. carrying on business as AUTO WORLD IMPORTS AND LAND ROVER JAGUAR THORNHILL Defendants

BEFORE: ASSOCIATE JUSTICE McGRAW

COUNSEL: D. Silver Email: dsilver@kmlaw.ca

• for the Plaintiff

P. Danson Email: pdanson@drlitigators.com

• for the Defendant HSC Holdings Inc.

E. Parry Email: eparry@beardwinter.com for the Defendant Steven Khari

REASONS RELEASED: November 8, 2021

Reasons for Endorsement

I. Overview

[1] This is a motion by the Plaintiff to set aside the Order of the Registrar Dismissing Action For Delay dated January 10, 2020. This is the second time that this action has been dismissed by the Registrar for delay.

II. Background and History of the Proceedings

[2] The Plaintiff was a parts and shuttle driver at Auto World Imports and Land Rover Jaguar Thornhill. He claims that he was employed by the Defendant HSC Holdings Inc. (“HSC”), however, the Defendants submit that he was employed by another entity. The Defendant Steven Khari was an employee of HSC who the Plaintiff claims was his principal.

[3] The Plaintiff alleges that he sustained serious injuries after falling from a ladder on May 18, 2012 while providing personal repair and maintenance services at Mr. Khari’s residence. He commenced this action by Statement of Claim issued on May 30, 2013 claiming general damages of $600,000 from Mr. Khari and $200,000 from HSC, for, among other things, infliction of mental suffering and abuse, harassment, discrimination and constructive dismissal. The Plaintiff was represented by Sidney Lebowitz who also represented him in his action against Empire Life Insurance Company for long-term disability benefits (the “Empire Action”).

[4] HSC delivered its Notice of Intent to Defend and a Demand For Particulars on July 17, 2013. HSC and Mr. Khari served their Statements of Defence on August 21, 2013 and October 18, 2013, respectively. HSC and the Plaintiff exchanged Affidavits of Documents on February 5 and 7, 2014. The production of documents and additional requests from non-parties including medical records continued into Fall 2014.

[5] The Plaintiff’s examination for discovery was initially scheduled for October 30, 2014 but cancelled as he was out of the country. In January-February 2015, counsel scheduled examinations for discovery. The Plaintiff was examined in this action and the Empire Action on March 31, 2015. The examinations for discovery of the Defendants were originally scheduled for March 2, 2015 but rescheduled to June 4, 2016 at the Defendants’ request. Throughout 2015 and into February 2016, the Plaintiff delivered answers to undertakings and made more non-party requests including updated medical records. Mr. Khari’s examination took place on June 4, 2016.

[6] In June 2017, Mr. Lebowitz canvassed mediation dates with Defendants’ counsel and mediation was held on November 23, 2017. The Empire Action was set down for trial on December 5, 2017 and by Order dated May 10, 2018, granted on consent, Master Abrams directed that the actions be tried together.

[7] On June 5, 2018, the Registrar dismissed this action for delay for the first time (the “First Dismissal Order”). The Plaintiff served motion materials to have the First Dismissal Order set aside on July 17, 2018. By Order dated August 2, 2018, unopposed by the Defendants, Master Brott set aside the First Dismissal Order and approved a litigation timetable which provided that all discoveries be completed by December 31, 2018 and that this action be set down for trial by May 31, 2019 (the “Brott Order”).

[8] Mr. Lebowitz’s uncontroverted evidence is that after obtaining the Brott Order, he gave instructions to either his assistant and/or law clerk to schedule HSC’s examination for discovery and that his junior associate at the time was to assume carriage of the discovery and set the action down for trial. However, no steps were taken to schedule HSC’s examination until January 31, 2019 when Licia Lionessa, Mr. Lebowitz’s assistant/paralegal, wrote to HSC’s counsel to canvass dates.

[9] Andrea Marsland, HSC’s counsel, responded on February 1, 2019 advising that she would speak to her client. Ms. Lionessa replied that same day noting that the examination had to be conducted prior to the set down date of May 31, 2019. Ms. Marsland replied on February 13, 2019 and again advised that she would speak to her client. Ms. Lionessa requested an update from Ms. Marsland on March 12, 2019 and receiving no response, sent another email message on March 25, 2019. On March 26, 2019, Kathryn Pereira, a clerk at Mr. Lebowitz’s office, sent Ms. Marsland another email message reminding her of the set down date and requesting HSC’s position on extending the set down date if necessary, noting that trial scheduling for the Empire Action had been adjourned until September 2019. Ms. Marsland advised that she would deal with the matter the following week, responding on April 9, 2019 that HSC’s examination could proceed on May 16, 2019. David Delagran, counsel for Mr. Khari, advised that he was unavailable but could send an associate.

[10] On April 15, 2019, Ms. Lionessa sent an email to Defendants’ counsel confirming that HSC’s examination would proceed on May 16, 2019. On April 23, 2019, Ms. Pereira sent an email requesting confirmation and noting that if remaining examinations were booked there would be no issue filing the trial record prior to May 31, 2019 as mediation had been completed. She also reminded counsel that trial scheduling for the Empire Action had been booked for September 2019 “allowing for this matter to catch up”.

[11] On May 7, 2019, Ms. Lionessa requested confirmation that discoveries would proceed on May 16, 2019. On May 8, 2019, Kyle Kuepfer, counsel for HSC, advised Ms. Lionessa that HSC was no longer available on May 16, 2019, proposed that the examination proceed between July 23 to 26, 2019 subject to client availability and requested that she circulate a draft order extending the set down deadline to September 2019 to keep this action current with the Empire Action.

[12] Mr. Lebowitz’s evidence is that he does not recall Ms. Lionessa or anyone else in his office advising him of Mr. Kuepfer’s email dated May 8, 2019 or that the examinations were not proceeding on May 16, 2019. Mr. Lebowitz states that he assumed that HSC’s examination was proceeding as scheduled and that his junior associate would ensure that this action was set down for trial by May 31, 2019. However, the junior associate left the firm in August 2019 and Mr. Lebowitz claims that it was not until the Fall of 2019 when he was preparing files to delegate to his new junior associate, Aman Chaggar, that he discovered Mr. Kuepfer’s email dated May 8, 2019 and realized that this action had not been set down for trial.

[13] Mr. Chaggar canvassed dates for a motion on December 3, 2019 however he did not receive responses from both Defendants. Mr. Lebowitz’s office followed up with Defendants’ counsel again on January 2, 2020 to schedule a motion. On January 8, 2020, Mr. Khari’s counsel filed a requisition with the court to have this action administratively dismissed for delay. Neither Mr. Lebowitz nor Mr. Chaggar were copied on the correspondence with the court office but were advised by a lawyer in Mr. Delagram’s office on January 8, 2020 that the requisition had been filed.

[14] The Registrar’s Dismissal Order was issued on January 10, 2020 (the “Second Dismissal Order”). Mr. Lebowitz states that he became aware of the Dismissal Order shortly after. His office submitted a requisition on January 21, 2020 and this motion was scheduled for April 2, 2020. Due to the suspension of regular court operations resulting from the COVID-19 pandemic the motion was adjourned sine die.

[15] Once motions were being rescheduled, Mr. Chaggar canvassed dates on September 15, 2020 and the motion was scheduled for March 3, 2021. LawPro retained the Plaintiff’s current counsel on March 2, 2021, the parties appeared before me on March 3, 2021 and I adjourned the motion on consent and ordered a timetable for the exchange of materials.

III. The Law and Analysis

[16] 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):

1. The action has not been set down for trial or terminated by any means by the fifth anniversary of the commencement of the action.

[17] 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.

[18] 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).

[19] The Reid test is not to be applied rigidly and the Plaintiff is not required to satisfy each factor. The court must apply a contextual approach weighing all relevant factors to determine the order that is just in all of the circumstances of the particular case (Kerr v. CIBC World Markets, 2013 ONSC 7685 (Div. Ct.); Scaini v. Prochnicki, 2007 ONCA 63 at paras. 21-28; Prescott at para. 15; Cornell v. Tuck, 2018 ONSC 7085 at paras. 32-38). 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. …”

[20] The Court of Appeal has provided guidance with respect to the balance between the fundamental principles of having matters determined on their merits and having them tried in a timely and efficient manner (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; 1196158 Ontario Inc. v. 6274013 Canada Ltd., 2012 ONCA 544 at paras 17-20). In Giant Tiger, the Court of Appeal stated:

“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.” (Giant Tiger at para. 34)

[21] 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)

[22] 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)

[23] In Cousins v. Roesler, 2014 ONSC 4530, a case relied on by the Defendants, Morgan J., citing Scaini, held that the test for setting aside a second dismissal order is the same as for a first dismissal, however the court should examine most carefully and in some detail the cause of the additional delay, why the second deadline was missed and there should be an articulated reason for the inadvertence which is more than a bald claim from the plaintiff’s lawyer (Cousins at paras. 5-12). The Court of Appeal has held that where a litigant is given a second chance and fails to respect a timetable set by the court, it is open to the court to consider the entire history of delay (1196158 Ontario Inc. at para. 25).

[24] For the reasons set out below, I conclude that it is just in all of the circumstances of this action to set aside the Second Dismissal Order.

[25] With respect to the first Reid factor, I am satisfied that the Plaintiff has provided an “acceptable”, “satisfactory” and “reasonable” explanation for the delay (Carioca’s Import & Export Inc. v. Canadian Pacific Railway, 2015 ONCA 592 at para. 45; Kupets v. Bonavista Pools Limited, 2015 ONSC 7348 (Div. Ct.) at para. 18). In assessing the explanation, the totality of the circumstances must be examined having regard to the competing interests at stake and the interests of justice with the court considering the overall conduct of the litigation and not undertaking a month-by-month review (3 Dogs Real Estate Corp. v. XCG Consultants Ltd., 2014 ONSC 2251 at para. 37; Carioca’s at para. 46). The plaintiff bears the primary responsibility for the progress of an action and though there are 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 explanation which is required (Erland v. Ontario, 2019 ONSC 462 at para. 10).

[26] While there is some authority for the proposition that the Defendants’ non-opposition to the Brott Order vitiates the delay up until that point, I am inclined to consider the entirety of this action on the basis that there has been a second dismissal (Gill v. Khindra, 2016 ONSC 5057 at para. 25; 1196158 Ontario Inc. at para. 25). However, even taking into account the delay prior to the Brott Order, I remain satisfied that the Plaintiff has provided a reasonable explanation.

[27] In considering the totality of the delay, the progress of this action has not been ideal or expeditious. However, there have not been any significant or material gaps of unexplained inactivity, most steps were completed and the action progressed, albeit slowly, from its commencement in 2013 until the Brott Order in 2018. Pleadings including Demands For Particulars were completed in 2013, documentary discovery consumed much of 2014 including efforts to obtain documents from non-parties. Examinations for discovery took place in 2015-2016 with delays resulting from the initial rescheduling of discoveries while answers to undertakings including non-party records were provided and mediation was completed in 2017. The Empire Action was set down for trial in March 2018 and joined with this action on consent in May 2018.

[28] Examining the delay after the Brott Order, there was an initial delay of approximately 7 months until January 2019 during which Mr. Lebowitz’s office took no steps to schedule HSC’s discovery. Mr. Lebowitz’s uncontroverted evidence is that he delegated the discovery and set down to a junior associate and law clerk/assistant who took no steps to schedule discoveries until after the discovery deadline of December 31, 2018. After January 2019, Mr. Lebowitz’s evidence, supported by emails between counsel, demonstrates that the passage of time until Spring 2019 can be largely attributabed to HSC’s delays in responding then cancelling its examination scheduled for May 16, 2019. Mr. Lebowitz’s evidence is that the delay after May 8, 2019, which ultimately resulted in the passage of the set down date, was due to the failure of anyone in his office to follow-up with HSC’s counsel regarding HSC’s agreement to extend the deadline to September 2019.

[29] I disagree with the Plaintiff that HSC’s cancellation of its discovery and agreement to extend the set down date to September 2019 vitiates all delay after the Brott Order. However, it is material that HSC cancelled its examination 8 days prior to the agreed upon date and was prepared to consent to an extension to September 2019 so that its examination could take place in July 2019. Given that the May 16, 2019 discoveries were scheduled by the parties for the express purpose of complying with the Brott Order and the action would have been set down in time but for the cancellation, this supports the conclusion that the Plaintiff has provided a reasonable explanation for the delay and as below, demonstrates that the Plaintiff intended to set this action down for trial in compliance with the Brott Order. It also reflects that the Defendants were willing to do so notwithstanding non-compliance with the dates in the Brott Order. Taken together, I am satisfied that the delay by Mr. Lebowtiz’s office in canvassing discovery dates until January 2019, the failure to circulate a consent order to extend the set down date in May 2019 and the intervening scheduling and cancellation of HSC’s discovery is a satisfactory and reasonable explanation in the circumstances.

[30] The Defendants submit that Mr. Lebowitz’s evidence is not credible. However, the Defendants elected not to cross-examine Mr. Lebowitz on the 3 affidavits he swore for this motion and there is no basis on the record for me to make this finding. The Defendants also argue that the Plaintiff’s motion should fail because there is no affidavit from the Plaintiff. The Divisional Court has held that an affidavit from the plaintiff is not required on every motion to set aside an administrative dismissal (Karagiannis v. Riapov, 2018 ONSC 2575 at para. 14). In my view, given the uncontroverted evidence of Mr. Lebowitz including the significant correspondence between counsel, an affidavit from the Plaintiff is not entirely necessary in the circumstances and is certainly not fatal to the Plaintiff’s motion. Further, Mr. Lebowitz states in his affidavit that the Plaintiff advised him that he always intended to set this action down for trial, an assertion supported by the record and the steps taken by counsel on his behalf.

[31] The parties cited numerous cases in support of their positions regarding the acceptable length of delay. While this can provide some assistance to the court, the cases must be considered in context and not solely for the purpose of comparison based on the amount of delay. In this regard, the Defendants submit that the present case is similar to Farmer v. 145 King Street West (2017), 2017 ONSC 6003; aff’d ONCA because there was an approximate 8-year period after the alleged accident and a two-year period after a court ordered timetable until the dismissal (Farmer at paras. 3 and 6). In my view, Farmer is distinguishable from the present case in numerous important respects. In that case, the court held that the plaintiff had not rebutted the presumption of prejudice; the plaintiff had not attended discovery; mediation had not been held; there was no ongoing communication and scheduling between the parties and there was no explanation provided in affidavits from law clerks that the failure to move the action forward was inadvertent.

[32] With respect to the second Reid factor, I am satisfied that the failure to set this action down for trial by May 31, 2019 was due to the inadvertence of Plaintiff’s counsel. Inadvertence is distinguished from counsel putting a file into abeyance or forming a deliberate intention not to proceed (Cornell v. Tuck, 2018 ONSC 7085 at paras. 81-87). As set out above, the record demonstrates that the Plaintiff intended to set this action down for trial by May 31, 2019 and was taking active steps and cooperating with the Defendants to do so including scheduling HSC’s examination for May 16, 2019 for the stated purpose of having it completed prior to the set down date. The fact that the Empire Action had already been set down for trial and trial scheduling had been adjourned to September 2019 to allow this action to be scheduled at the same time is further evidence of this intention. It was ultimately due to the failure of Mr. Lebowitz’s junior associate (who left the firm) and clerks charged with this matter to follow up with HSC’s counsel to take out a consent order extending the set down date after the cancellation of HSC’s discovery that the action was dismissed a second time. Overall, considering the explanation for what happened after the Brott Order, I am satisfied that Plaintiff’s counsel has provided articulated reasons and not bald claims of inadvertence as the Defendants claim. I also disagree with the Defendants’ argument that a lack of interest in pursuing this action can be inferred from what they characterize as repeated inadvertence by Mr. Lebowitz. The Defendants have provided me with no authority or evidentiary basis for doing so.

[33] The Defendants further submit that Mr. Lebowitz’s failure to monitor his junior associate and clerks to ensure compliance with the Brott Order was an abdication of his professional responsibilities. I make no finding in this regard, however, even if I were to accept this characterization of Mr. Leibowitz’s conduct, it does not change my conclusion that the record supports a finding of inadvertence. The Court of Appeal has held that even if counsel’s conduct can be characterized as negligent, this does not mean that the court is not entitled to find the conduct not to be deliberate or not intentional (Cousins at para. 12; Habib at para. 7).

[34] Turning to the third Reid factor, I am satisfied that the Plaintiff brought this motion in a timely manner. Even before the Second Dismissal Order was issued, after realizing in Fall 2019 that the action was not set down in time, Plaintiff’s counsel canvassed dates for a motion but did not receive a response from all parties, discovering later that Mr. Khari’s counsel had submitted a requisition to have the action dismissed. After Mr. Lebowitz became aware of the Second Dismissal Order in mid-January 2020, this motion was scheduled shortly after for April 2, 2020 but adjourned sine die due to the suspension of regular court operations resulting from the COVID-19 pandemic. Plaintiff’s counsel canvassed a new date in September 2020 once motions were being rescheduled.

[35] With respect to the fourth Reid factor, the Plaintiff bears the onus of demonstrating that the Defendants would not suffer any actual prejudice if the Second Dismissal Order is set aside meaning any prejudice which would impair the Defendants’ ability to defend this action resulting from the Plaintiff’s delay, not due to the sheer passage of time (Carioca’s at para. 57; H.B. Fuller Company et al. v. Rogers (Rogers Law Office), 2015 ONCA 173 at para. 37; 1196158 Ontario Inc. at para. 32). The plaintiff 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). The plaintiff is not required to adduce affirmative evidence rebutting the presumption of prejudice rather the court must consider all of the circumstances in evaluating the strength of the presumption (DK Manufacturing Group Ltd. v. MDF Mechanical Ltd., 2019 ONSC at para. 29).

[36] In my view, the Plaintiff has rebutted the presumption of prejudice and the Defendants would not suffer any actual prejudice if the Second Dismissal Order is set aside. The Plaintiff’s evidence demonstrates that relevant documents including medical records have been preserved, the discovery transcripts of the Plaintiff and Mr. Khari are available, relevant witnesses are available and nothing has been lost due to the Plaintiff’s delay. The Defendants submit that the Plaintiff has failed to rebut the presumption of prejudice caused by fading memories inherent in the passage of time since the commencement of this action. Without more, this is insufficient to establish prejudice. As the Court of Appeal held in Carioca’s:

“ I do not accept that speculation that a case may depend in part on oral evidence, coupled with the assumption that witnesses' memories generally fade over time will, without more, prevent a plaintiff from satisfying the prejudice prong of the test. Counsel routinely address the reality of the passage of time in the litigation process by collecting and producing documents, undertaking oral examinations for discovery and taking witness statements. There are other methods under the rules to preserve evidence that may disappear or be lost before trial.” (Carioca’s at para. 76)

[37] Further, the existing and available documents and records will permit witnesses to refresh their memories if necessary (Key Anlouis Investments Limited v. 800246 Ontario Inc. 2018 ONSC 5895 at para. 29). The record also does not support the Defendants’ submission that that they did not receive timely notice of the Plaintiff’s claim or lost the opportunity for a timely investigation giving rise to a substantial risk that a fair trial is not possible (Wellwood v. Ontario, 2010 ONCA 386 at para. 62).

[38] I also reject the Defendants’ assertion that the finality principle applies in the present circumstances. Given the short time period between the issuance of the Second Dismissal Order (or even after May 31, 2019) and the bringing of this motion, and their agreement to extend the set down date to September 2019, it was not possible for the Defendants to gain any security of position that the litigation had concluded or place any reliance on it (Giant Tiger at paras. 36-40).

[39] The merits are not ordinarily considered on a motion to set aside an administrative dismissal, however, they may be considered where the evidence is clear and unchallenged (Vogrin v. Ticknor, 2012 ONSC 1640 at para. 59). In my view, contrary to the Defendants’ submissions, given the numerous disputed issues of fact and credibility, it is not appropriate to consider the merits on this motion.

[40] Taking into consideration the overall context and all relevant factors, I conclude that it is just in all of the circumstances to set aside the Second Dismissal Order. In addition to my consideration of the Reid factors, I am satisfied that it would not be just for the Plaintiff to lose the right to have his action determined on the merits due to the inadvertence of his counsel particularly in the absence of actual prejudice, the Defendants’ late cancellation of the May 2019 discoveries and agreement to extend the set down date to September 2019 and where this action and the Empire Action are ready for trial. In balancing and weighing the parties’ interests, I conclude that the appropriate balancing favours the Plaintiff’s right to an indulgence.

IV. Disposition and Costs

[41] Order to go setting aside the Second Dismissal Order and directing that examinations for discovery be completed on or before January 31, 2022 and that this action be set down for trial on or before March 31, 2022. Counsel may schedule a telephone case conference with me to speak to this timetable, terms and any additional steps, if necessary.

[42] If the parties cannot agree on the costs of this motion, they may file written costs submissions not to exceed 3 pages (excluding Costs Outlines) on a timetable to be agreed upon by counsel.

Released: November 8, 2021

Associate Justice McGraw