Court File and Parties
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
OMAR FAROOQ KALAIR
Plaintiff (Respondent)
– and –
THE GLOBE AND MAIL INC.
Defendant (Appellant)
COUNSEL:
Peter I. Waldmann, for the Plaintiff (Respondent)
Andrew MacDonald, for the Defendant (Appellant), The Globe and Mail Inc.
HEARD (by Videoconference): January 12, 2021
REASONS FOR DECISION
A.A. SANFILIPPO J.
Overview
1On May 16, 2014, the plaintiff, Omar Farooq Kalair, initiated this action against the defendant, The Globe and Mail Inc. (the “Globe”), pleading that he had been defamed. On May 24, 2019, the Registrar dismissed this action for delay, on the basis of Rule 48.14 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as the action had not been set down for trial or terminated by the fifth anniversary of its commencement.
2On November 22, 2019, the plaintiff brought a motion under Rule 37.14(1)(c) to set aside the Registrar’s Order. By Reasons for Decision issued December 4, 2019, Master B. McAfee ordered that the Registrar’s Order be set aside, and implemented a timetable for the progression of the action to trial: Kalair v. The Globe and Mail Inc., 2019 ONSC 6991 (the “Master’s Decision”).
3The defendant/appellant, the Globe, brought this appeal of the Master’s Decision. On the basis of the reasons that follow, I dismiss this appeal.
I. THE REGISTRAR’S ORDER
4Rule 48.14(1) provides that the Registrar shall dismiss any action that is not set down for trial within five years after it is started, as follows:
48.14 (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):
- The action has not been set down for trial or terminated by any means by the fifth anniversary of the commencement of the action.
5As this action was not “set down for trial or terminated by any means” by May 16, 2019, its fifth anniversary date, the Registrar, on May 24, 2019 issued an “Order Dismissing Action for Delay” (the “Registrar’s Order”). Mr. Kalair deposed that he received the Registrar’s Order on June 15, 2019.
II. THE MASTER’S DECISION
6Mr. Kalair brought a motion before the Master to set aside the Registrar’s Order based on Rule 37.14(1)(c), which provides as follows:
37.14 (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 the service of the notice of motion.
7The Globe agreed that Mr. Kalair brought his motion promptly after the Registrar’s Order came to his attention: Master’s Decision, at para. 27.
8There were two affidavits tendered by Mr. Kalair: an affidavit sworn July 5, 2019 (“Kalair Affidavit #1) and an affidavit sworn August 8, 2019 (“Kalair Affidavit #2). The Globe filed an affidavit sworn by its legal counsel, Ms. Emma Romano, sworn August 2, 2019 (“Romano Affidavit”) and an affidavit sworn by a legal assistant in the office of its legal counsel. There was no cross-examination. These affidavits reveal the following facts, all of which were not contested.
9The Globe published an article on February 19, 2014 entitled “RCMP Charge Missing Toronto Financier with $4.3-Million Mortgage Fraud” (the “Globe Article”).The Globe Article stated that the RCMP had filed charges against Mr. Kalair, described in the Globe Article as a “Toronto Islamic financier who went missing after he allegedly pocketed $4.3-million in mortgage payments from Muslim homeowners and used the money to buy himself gold bars, silver coins and electronics”. The Globe Article stated that “Mr. Kalair’s two registered firms, UM Financial Inc. and UM Capital Inc., collapsed two years ago, leaving more than 170 homeowners in the lurch.” The Globe Article stated that the RCMP had charged Mr. Kalair with theft over $5,000, fraud over $5,000 and laundering proceeds of crime. The Globe Article also reported that an investigation conducted with the Office of the Superintendent of Bankruptcy “resulted in three charges under the Bankruptcy and Insolvency Act of fraudulent disposition of bankruptcy property, failure to comply and failure to answer truthfully”.
10Mr. Kalair initiated this action on May 16, 2014 as a self-represented plaintiff. While he deposed that he initially retained a lawyer to deliver a libel notice and communicate with the Globe, and while represented by counsel on the motion before the Master, Mr. Kalair was until recently self-represented.
11The Globe delivered its statement of defence on December 10, 2014, denying that the Globe Article was defamatory of Mr. Kalair.
12Mr. Kalair did not take any steps to advance this action in the 4.5 years from the date of the Globe’s delivery of its statement of defence to the date of the Registrar’s dismissal of this action under Rule 48.14(1). During this time, Mr. Kalair was involved in other litigation that arose from his home financing activities and was also involved in family law litigation: Kalair v. Central 1 Credit Union, 2015 HRTO 1400; Kalair v. Central 1 Credit Union, 2016 HRTO 964; Kalair v. Central 1 Credit Union and UM Financial Inc., 2015 ONSC 6684; Kalair v. Central 1 Credit Union, 2018 ONCA 434; Kalair and Kabir, 2015 ONSC 4789.
13Further, during this time, on November 2, 2015, Mr. Kalair brought a Rowbotham Application to obtain funding for his defence of the criminal charges: R. v. Kalair, 2015 ONSC 6784. In granting Mr. Kalair’s Application, the Court found, at para. 15, that Mr. Kalair was involuntarily unemployed, lived on social assistance, was subject to a bail condition that prohibited him from employment in the financial sector and was rendered unfit for work by an accident that occurred in March 2013. The evidentiary record showed that Mr. Kalair was a joint caregiver for his terminally ill father and his daughter had health issues that were diagnosed in 2018 and necessitated attendances at hospital.
14Mr. Kalair’s trial of the criminal charges and offences under the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 (“Bankruptcy Act”) took place over 21 days from October 18, 2018 to December 3, 2018. By Judgment released on June 7, 2019, Mr. Kalair was acquitted of all Criminal Code, R.S.C. 1985, c. C-46 charges brought against him, including all charges in theft, fraud and money laundering, and was acquitted of all offences brought under against him under the Bankruptcy Act, including all charges of fraudulent disposal of property, failure to perform duties of a bankrupt and unlawful refusal to answer fully and truthfully: R. v. Kalair and Panchbhaya, 2019 ONSC 3471 (the “Criminal Decision”).
15The Master began her analysis by setting out the test on a motion under Rule 37.14(1)(c) (Master’s Decision, at para. 3):
The court will apply a contextual approach and consider all relevant factors in determining whether it is just to set aside the dismissal order in the circumstances of the particular case (Prescott v Barbon, 2018 ONCA 504 (Ont. C.A.) at paras. 13-15, Jadid v. Toronto Transit Commission, 2016 ONCA 936 (Ont. C.A.) at paras. 9-12, H.B. Fuller Company v. Rogers, 2015 ONCA 173 (Ont. C.A.) at paras 20-27, Marché D'Alimentation Denis Thériault Ltée v. Giant Tiger Stores Ltd., 2007 ONCA 695 (Ont. C.A.) at paras. 12, 20-21).
16The Master acknowledged that her determination must balance the “tension between two principles of our civil justice system: the preference to have civil actions decided on their merits and the promotion of the timely resolution of actions”: Master’s Decision, at para. 4, citing H.B. Fuller Company v. Rogers, 2015 ONCA 173, at paras. 25-27. The Master took into consideration, as well, the importance of finality of litigation, citing Marché D’Alimentation Denis Thériault Ltée v. Giant Tiger Stores Ltd., 2007 ONCA 695, at paras. 37-38, and the principles set out in Rule 1.04(1), which provides that the Rules “shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.”
17In exercising her discretion to set aside the Registrar’s Order, the Master applied the well-established legal test for setting aside a registrar’s dismissal for delay as originally described in Reid v. Dow Corning Corp., (2001), 11 C.P.C. (5th) 80 (Ont. S.C.), at para. 41, aff’d as to the test (2002), 48 C.P.C. (5th) 93 (Ont. Div. Ct.), and as adopted by the Court of Appeal, including in Prescott v. Barbon, 2018 ONCA 504, at para. 14; Jadid v. Toronto Transit Commission, 2016 ONCA 936, at para. 9; H.B. Fuller, at para. 20; and Marché, at para. 12. The legal test contains four factors that were relevant to the Master’s exercise of her discretion, referred to as the Reid factors: (i) the explanation of the litigation delay, (ii) the inadvertence in missing the deadline; (iii) the efforts to move promptly to set aside the dismissal; and (iv) the absence of prejudice to the defendant.
18The Master was not satisfied that Mr. Kalair had provided a satisfactory explanation for the litigation delay in advancing the action, and was not satisfied that Mr. Kalair had missed the five-year deadline to set the action down for trial as a result of inadvertence: Master’s Decision, at paras. 24, 26. The Master was satisfied that the plaintiff rebutted the presumption of prejudice to the defendant caused by the delay in setting the action down for trial, and noted that the defendant agreed that the plaintiff had moved promptly to set aside the dismissal: Master’s Decision, at paras. 27-28.
19The Master concluded that even though the plaintiff had established only two of the four Reid factors, that when she analysed all the four factors contextually, it was just to set aside the dismissal order, writing, at para. 34 of the Master’s Decision, as follows: “Even though I have determined that two of the four Reid factors have not been satisfied, I am satisfied that in all of the circumstances of this matter, taken in context, it is just to set aside the dismissal order.”
20The Master then ordered the implementation of a timetable that directed timeframes for the completion of the required litigation steps, including a discovery plan, delivery of affidavits of documents, examinations for discovery and mandatory mediation, leading to a deadline for the plaintiff to set the action down for trial by February 16, 2021 (the “Timetable”).
21Last, the Master ordered that, as the plaintiff sought and was provided with an indulgence, it was fair and reasonable that the plaintiff pay the defendant costs of the motion in the cause, fixed in the all-inclusive amount of $5,000.
III. STANDARD OF REVIEW
22The decision of a Master in granting or refusing to set aside an administrative dismissal by a registrar is discretionary, is entitled to deference, and may only be set aside if made on an erroneous legal principle, reviewable on a correctness standard, or is infected by palpable and overriding error of fact: Prescott, at para. 11, citing 1196158 Ontario Inc. v. 6274013 Canada Ltd., 2012 ONCA 544, 112 O.R. (3d) 67 and Chrisjohn v. Riley Estate, 2015 ONCA 713, 341 O.A.C. 70; Zeitoun v. Economical Insurance Group (2008), 2008 CanLII 20996 (ON SCDC), 91 O.R. (3d) 131 (Div. Ct.), at paras. 40-41, aff’d 2009 ONCA 415, 96 O.R. (3d) 639; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401; H.B. Fuller, at para. 19.
23The Court of Appeal stated that “it is not for an appellate court judge to reweigh the evidence and substitute another discretionary decision for that of the Master”: Prescott, at para. 11. An appeal from a Master’s decision is not a rehearing: Prescott, at para. 11, citing Wellwood v. Ontario Provincial Police, 2010 ONCA 386, 102 O.R. (3d) 555, at para. 28: “An appellate court cannot substitute its interpretation of the facts or reweigh the evidence simply because it takes a different view of the evidence from that of the master.”
IV. ANALYSIS
24The Appellant submitted that the Master made three errors of law that the Appellant stated were reviewable on a standard of correctness:
(a) Failure to give any or sufficient weight to the fact that Mr. Kalair made a deliberate decision not to advance the litigation, “despite binding jurisprudence … holding that if either the solicitor or the client made the deliberate decision not to advance the litigation toward trial then the motion to set aside the dismissal will fail” (Notice of Appeal, at para. 13(b));
(b) Failure to properly apply the onus on Mr. Kalair to satisfy the Court that there was no prejudice to the defendant as a result of the delay; and
(c) Failure to identify the circumstances in the particular matter that support the conclusion that it is just to set aside the dismissal order.
25In the Notice of Appeal, the Appellant pleaded a fourth ground of appeal, namely, that the Master erred “by failing to give any or sufficient weight to the fact that the plaintiff did not provide a reasonable explanation for delay or demonstrate inadvertence in missing the deadline”: Notice of Appeal, at para. 12(a). However, the Appellant did not pursue this point in its factum or in argument and I treated this ground of appeal as being subsumed in the Appellant’s overarching submission that the Master failed to apply the correct test and give appropriate weight to relevant considerations.
26The Respondent submitted that the Master’s Decision was made without error and is entitled to deference. The Respondent denied that the Appellant has established any error of law or any palpable and overriding error, but rather that the Appellant was taking issue with the weight that the Master applied to the elements of the governing test. The Respondent contended that the Master applied the correct contextual analysis requiring consideration of all relevant factors and determined, in the exercise of her discretion, that the interest of deciding this civil action on its merits prevailed over the promotion of timely resolution, particularly given the modest amount of delay and the importance of the matters in issue.
27I will now explain my analysis of these positions.
A. Did the Master Fail to Apply the Correct Legal Test?
28The Appellant submitted that the correct legal test on a motion under Rule 37.14(1)(c) requires that a Court uphold a registrar’s dismissal order where the Court finds that a plaintiff has deliberately delayed in advancing an action. The Appellant thereby submitted that the Master erred by setting aside the Registrar’s Order notwithstanding her finding that the plaintiff had deliberately delayed in advancing this action.
29The Respondent submitted that the Master had not made a finding that the Plaintiff deliberately delayed this action. The Master wrote, at paras. 24 and 26 of the Decision, that “the litigation delay had not been adequately explained” and that “she was not satisfied that the five-year “deadline was missed as a result of inadvertence”, but did not make a finding that the plaintiff, throughout self-represented and involved in extensive other litigation including his defence of multiple and serious criminal charges, made a deliberate decision to delay this action in contravention of the Rules. Although I am of the view that the Respondent is correct in this submission, I have broader reasons for rejecting the Appellant’s position.
30The Appellant’s submission was based on an incorrect statement of the applicable legal test. Since its 2007 decision in Scaini v. Prochnicki, 2007 ONCA 63, 85 O.R. (3d) 179, the Ontario Court of Appeal has held that strict and rigid compliance with all four of the factors set out in Reid is not required, but rather the Court should take a contextual approach that weighs all relevant factors. Goudge J.A. explained, at paras. 23 and 26, as follows:
In my view, a contextual approach to this question is to be preferred to a rigid test requiring an appellant to satisfy each one of a fixed set of criteria. … A fixed formula like that applied by the motion judge is simply too inflexible to allow the court in each case to reach the just result contemplated by the rules.
Thus, in my view, the motion judge erred in principle by requiring the appellant to satisfy each of the four criteria separately in order to succeed in setting aside the registrar’s order, without considering and weighing all the relevant factors
31The Court of Appeal affirmed this finding in Marché, stating, at para. 20, that the “four Reid criteria are ‘likely to be of central importance in most cases’, but they are not exhaustive and ‘[t]he key point is that the court consider and weigh all relevant factors to determine the order that is just in the circumstances of the particular case’”. In Prescott, the Court of Appeal explained, at para. 15, that the four Reid factors are “not a rigid, one-size fits all test”, but that post-Scaini, “courts were to consider and weigh all relevant factors to determine the order that is just.” See also Habib v. Mucaj, 2012 ONCA 880, at para. 6; H.B. Fuller, at paras. 20-21; McLean v. Boettcher, 2016 ONCA 14, at para. 10.
32The Appellant’s submission that a finding by the Master of deliberate delay by the Plaintiff was dispositive was an attempt to engraft on the test for a Rule 37.14(1)(c) motion a mandatory requirement that all four Reid factors be established by applying the case law that governs the legal test for a contested status hearing under Rule 48.14(7). There, a plaintiff has the burden (“shall show cause”) of establishing why their action should not be dismissed for delay, according to a conjunctive two-part test: (i) the plaintiff must show an acceptable explanation for the delay, and; (2) the plaintiff must satisfy the court that if the action were allowed to proceed, there would be no non-compensable prejudice to the defendants: Khan v. Sun Life Assurance Co of Canada, 2011 ONCA 650, 1 C.C.L.I. (5th) 183, at para. 1; 1196158 Ontario Inc., at para. 12; Faris v. Eftimovski, 2013 ONCA 360, 363 D.L.R. (4th) 111, at paras. 11, 32 and 43; Kara v. Arnold, 2014 ONCA 871, 328 O.A.C. 382, at para. 8; Southwestern Sales Corporation Limited v. Spurr Bros. Ltd., 2016 ONCA 590, 132 O.R. (3d) 794, at paras. 7 and 13; Erland v. Ontario, 2019 ONCA 689, at para. 4; Home Town Financial (Timmins) Corporation v. Levesque, 2020 ONCA 349, at para. 5.
33Both the test for a Rule 37.14(1)(c) motion and the test for a motion under Rule 48.14(7) share the same foundational objective of weighing all factors to achieve a just result by balancing two principles: that civil actions should, if possible, be decided on their merits and that procedural rules should be interpreted accordingly, and; that procedural rules that are designed to ensure that disputes are resolved in a timely and efficient manner can only achieve this objective if they are enforced: 1196158 Ontario Inc., at para. 18. However, the test under a Rule 37.14(1)(c) motion does not require that the Court uphold the registrar’s dismissal upon a finding that the delay was deliberate, as contended by the Appellant.
34The Appellant’s alternative submission was that a deliberate decision not to advance the litigation will “usually be fatal” to a motion to set aside the registrar’s dismissal: that is, if not dispositive, it is “nearly-dispositive”. The Appellant relied on Habib, at para. 5 and Aguas v. Rivard Estate, 2011 ONCA 494, 107 O.R. (3d) 142, at para. 15. However, the Court of Appeal emphasized in Habib, at para. 6, that: “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.”
35In my assessment, the Master applied the correct test. She weighed all the relevant considerations to determine a just result. The case law did not require that she be bound to uphold the administrative dismissal upon determining that the litigation delay had not been adequately explained or was caused by inadvertence or even by deliberate delay. The Master was not required to give this finding – or any single finding - primacy or even disproportionate weight in her contextual assessment.
36The Master was required to determine all four Reid factors, which she did, and then conduct a contextual analysis in the exercise of her discretion to reach a just result that assessed the two principles that the Master had identified, namely “the preference to have civil actions decided on their merits and the promotion of the timely resolution of actions”: Master’s Decision, at paras. 4-6.
37The Appellant has not established that the Master erred in law in her identification and application of the correct legal test, which I have assessed on a correctness standard, and I am satisfied that even if assessed as a mixed issue of law and fact, the Appellant has not shown that the Master’s exercise of her discretion was based on a misapprehension of the evidence or the incorrect application of a legal principle.
B. Did the Master Err in the Assessment of Prejudice?
38The Appellant submitted that the Master erred in the assessment of prejudice, as a component of a contextual analysis of the legal test, in two ways: (i) by reversing the burden of proof from Mr. Kalair to the Globe, and (ii) by attributing undue weight to the assessment of prejudice, the Master incorrectly conducted the required contextual analysis by assessing only whether the Globe would sustain any significant prejudice in presenting its case at trial.
39The Appellant is correct that in a Rule 37.14(1)(c) motion, there is no burden on the defendant to explain the delay or to move the action to trial: Prescott, at para. 30, citing Wellwood, at paras. 37-41, 84 and Jadid, at para. 23; 1196158 Ontario Inc., at para. 27. But this does not mean that the defendant’s conduct is not relevant. In Aguas, the Court of Appeal stated that while the plaintiff bears the primary responsibility for the conduct of an action, the defendant’s conduct in the litigation is a relevant circumstance, at paras. 18-19, 21: “I appreciate that the appellant, as plaintiff, bore responsibility for moving the action along, but respondents' counsel's lack of display of any sense of urgency undercuts the claim of actual prejudice.”
40The Master’s findings that the Globe did not allege any actual prejudice, did not tender any evidence of actual prejudice, and that the Globe did not take any steps to advance the action other than deliver a statement of defence was not, in my view, a reversal of the onus but rather part of an assessment of the issue of prejudice in the full context of this action and on the full Motion Record. These findings are grounded in the Motion record.
41The test in Reid on the issue of prejudice, at para. 41, is whether the defendant would suffer “any significant prejudice in presenting their case at trial”. In Prescott, at para. 34, the Court of Appeal instructed that the prejudice analysis is on “the impact of delay on a defendant’s ability to mount a defence to the plaintiff’s claim”. The motion judge or master must link the question of prejudice to whether a fair trial was still possible: H.B. Fuller, at para. 44.
42The Master found that the there was “no significant prejudice to the defendant in presenting their case” on the following findings: the trial in this action will be “heavily reliant on documents”; the Criminal Decision established that the plaintiff had assembled and delivered transcripts of evidence and “bankers boxes of documents” and that there was no evidence that “documents have been lost or witnesses have died.”: at paras. 32, 29 and 30. Again, I see this as part of the Master’s contextual assessment of the evidentiary record.
43The Master relied on para. 4 of the Criminal Decision, which referenced “key trial transcripts” and para. 337, which stated that “many banker boxes of documents were provided by Kalair” and “laptops were mirrored”. The Master’s conclusion that there was “no significant prejudice to the defendant in presenting their case at trial as a result of the delay” had an evidentiary basis. The Criminal Decision showed that the plaintiff’s evidence regarding the matters in issue had been produced in Mr. Kalair’s lengthy criminal trial. The Globe is in control of the Globe Article, which is the focus of the defamation claim, and the Globe employee(s) that authored the article and their records. The RCMP charges that were reported upon are a matter of record in the criminal proceeding, and the disposition of the criminal charges, to the extent that they are material, are now determined.
44The Appellant submitted that the Master committed an error in principle by relying on evidence that was not adduced by Mr. Kalair to rebut the presumption of prejudice, citing Dzuazah v. Regional Municipality of Peel Police Services Board, 2016 ONSC 6376, at para. 44. However, the Criminal Decision relied on by the Master in her Decision was an exhibit to the Kalair #1 Affidavit – and was an exhibit to the Romano Affidavit – and was deposed to by Mr. Kalair in paragraph 10 of the Kalair #2 Affidavit, under the heading “No Prejudice to the Defendant”, as follows: “Trial records have copies of all court appointed receivers information …”
45In MDM Plastics Limited v. Vincor International Inc., 2015 ONCA 28, 124 O.R. (3d) 420, at para. 32, the Court of Appeal stated that the rebutting of the presumption of prejudice that arises from the passage of time does not have to be solely based on the notion that the plaintiff must lead affirmative evidence but rather “the master or motion judge must consider all of the circumstances, including the defendant’s conduct in the litigation”. In H.B. Fuller, at para. 38, the Court of Appeal explained that a plaintiff “will not necessarily fail to rebut [the presumption of prejudice] simply because he or she does not adduce affirmative evidence”. Here, there was affirmative evidence that Mr. Kalair had already assembled and tendered into evidence the records and court appointed receiver information that were in his possession, power or control pertinent to the matters in issue.
46The Appellant has not established, on a correctness standard, that the Master erred in law in her assessment of the issue of prejudice. The Master identified that Mr. Kalair had the onus of rebutting the presumption of prejudice and properly assessed this on the evidence tendered by Mr. Kalair and in the overall context of this action.
47I have assessed the Master’s disposition of the issue of prejudice also as a mixed issue of fact and law, and am satisfied that the Appellant has not shown that the Master’s exercise of her discretion was based on a misapprehension of the evidence or the incorrect application of a legal principle. The Master’s finding that the delay caused no significant prejudice to the Globe in advancing its position to trial was grounded in the evidentiary record and in the Master’s contextual analysis. The Master’s determination is entitled to deference.
C. Did the Master Fail to Identify the Circumstances that Supported Her Conclusion That It Was Just to Set Aside the Registrar’s Dismissal Order?
48The Globe submitted that the Master failed to identify the circumstances on which she determined that the interests of justice required that the interest of deciding this civil action on its merits prevailed over the promotion of timely resolution. On a review of the Motion record and a generous reading of the Master’s Decision, I do not give effect to the Globe’s submission.
49The Master noted the Globe’s agreement that Mr. Kalair brought his motion promptly, as is required by the governing test: Master’s Decision, at para. 27. There could be no contest that Mr. Kalair had satisfied this requirement. The five-year anniversary of this action occurred on May 16, 2019 and the Registrar’s Order was issued on May 24, 2019. The Criminal Decision that had so consumed Mr. Kalair’s attention, for years, was issued on June 7, 2019. Mr. Kalair’s father, who was at that time under Mr. Kalair’s care, incapable and suffering from terminal illness, passed away on June 12, 2019. Mr. Kalair learned of the Registrar’s Order on June 15, 2019 and brought his motion on June 26, 2019 to set aside the Registrar’s Order. Mr. Kalair swore that he always intended to proceed with this action and, if reinstated, would do so with all possible dispatch.
50The Master found that Mr. Kalair had been advised that “because he was facing serious criminal charges, he would be tainted in court until there was an acquittal”: Master’s Decision, at para. 18. There are instances where the Court has accepted the delay caused by a party in holding down a civil action while a related criminal action is pending: Winmill v. Woodstock (Police Services Board), 2017 ONCA 962, at para. 28. The Master did not accept that this adequately explained the litigation delay, stating that the period of abeyance could have been implemented by the self-represented plaintiff attempting to reach an understanding with the Globe that this defamation action would be held in abeyance until the criminal matter was dealt with. But while the Master was critical that the plaintiff did not properly manage the period of delay, she determined, in my view without error, that this factor did not have sufficient weight to uphold the Registrar’s dismissal.
51The Master referred to the principle of finality and found, in my view correctly, that it did not apply in favour of the Appellant where there was not a significant period of delay and where the plaintiff moved promptly to set aside the Registrar’s Order. As the Court of Appeal stated in Prescott, at para. 37, the question is “simply whether the interest in finality must trump the opposite party’s pleas for an indulgence.” The Master explained her determination that, in the context presented, it was just to grant the request for an indulgence and allow this action to be determined on its merits, as opposed to dismissing the action administratively.
52This was consistent with the approach set out by Sharpe J.A. in 1196158 Ontario Inc., adopted by Blair J.A. in Kara, “[w]e should strive to avoid a purely formalistic and mechanical application of timelines that would penalize parties for technical non-compliance and frustrate the fundamental goal of resolving disputes on their merits”: 1196158 Ontario Inc., at para. 19; Kara, at para. 10.
53I conclude that the Master identified and explained the circumstances that supported her exercise of discretion.
D. Conclusions
54A court will intervene on an appeal from an order of a judge or master that is made in the exercise of discretion “only if the exercise of the judge’s discretion was based on a wrong principle, a failure to consider a relevant principle, or a misapprehension of the evidence”: Ettinger v. Trillium Railway Co. Ltd., 2019 ONSC 7321, 99 B.L.R. (5th) 231 (Div. Ct.), at para. 38, citing Aldo Group Inc. v. Moneris Solutions Corporation, 2013 ONCA 725, 118 O.R. (3d) 81, at para. 30; Prescott, at para. 11.
55I conclude that the Master identified the correct test for this motion under Rule 37.14(1)(c), being the test set out in Reid, applied in a “contextual” approach that weighs all relevant considerations to determine a just result. The Master engaged in the weighing exercise prescribed by the applicable case law and determined that the just result was to set aside the Registrar’s Order. I find that the Master considered the relevant principles and applied the principles to the facts as she found them. The Master’s Decision was grounded in the Motion record, and the Appellant has not satisfied me that she misapprehended the evidence.
56The Master’s order was made in an exercise of her discretion and thereby attracts considerable deference. The Master’s Decision was reasonable, and I will not interfere with it. I thereby dismiss this appeal.
57In affirming the Master’s Order, I will address a variation of the Timetable to take into account the passage of time from date of the Master’s Order. The Master’s Order directed the following Timetable for the development of this action:
(i) A discovery plan shall be agreed to within 60 days of December 4, 2019;
(ii) Affidavits of documents shall be served within 120 days of December 4, 2019;
(iii) Examinations for discovery shall take place within 120 days after the deadline for service of affidavits of documents;
(iv) Mandatory mediation shall take place within 90 days of the completion of the examinations for discovery and any motions arising therefrom;
(v) The deadline to set this action down for trial is extended to February 16, 2021.
58The parties agreed that if this appeal were dismissed, the Timetable should be varied to reflect the same amount of time provided by the Master for the completion of litigation steps but modified to reflect the time that has since passed. To do so, the initiation of the calculation of time for the completion of the litigation steps outlined in paragraphs 2(i) and (ii) of the Master’s Order must be varied from December 4, 2019 to the date of these Reasons, and the time for the Plaintiff/ Respondent to set this action down for trial must be extended to April 29, 2022. I will so order.
V. DISPOSITION
59On the basis of these Reasons, I order as follows:
(a) This Appeal is dismissed.
(b) The Timetable ordered by this Court’s Order of December 4, 2019 is varied as follows:
(i) The initiation of the calculation of time for completion of the litigation steps of December 4, 2019, as set out in paragraphs 2(i) and (ii), shall be varied to the date of these Reasons, February 1, 2021.
(ii) The deadline of February 16, 2021 for the Plaintiff/Respondent to set this action down for trial, as provided for in paragraph 2(v), shall be varied to April 29, 2022.
VI. COSTS
60The parties reached an agreement on the issue of costs for this Appeal that provided that if the Appeal were dismissed, the Respondent would receive an award of costs, payable by the Appellant within thirty days, in the amount of $10,339.96, all inclusive of legal fees on a partial indemnity scale, assessable disbursements and applicable taxes.
61In accordance with the parties’ agreement, I award costs of this Appeal to the Respondent, payable by the Appellant within thirty days, fixed in the amount of $10,339.96, all inclusive.
A.A. Sanfilippo J.
Date: February 1, 2021