COURT FILE NO.: CV-13-476297 DATE: January 3, 2022
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Maryam Amiri-Khorke v. Yoav Aharon Cohen-Rimmer, Benjamin Howard Cohen and Marziyeh Bakhtiyari;
BEFORE: ASSOCIATE JUSTICE C. WIEBE
COUNSEL: Michael Kealy for Maryam Amiri-Khorki (“the plaintiff”); Patrick M. Essig for Yoav Aharon Cohen-Rimmer and Benjamin Howard Cohen (together “the defendants”);
HEARD: November 24, 2021.
REASONS FOR DECISION
[1] The plaintiff brings this motion for an order setting aside the registrar’s dismissal order dated July 19, 2018. The defendants oppose the motion. The action as against Ms. Bakhtiyari was dismissed by order dated July 7, 2016.
Background
[2] The plaintiff’s motion material contains two affidavits from her present lawyer, Michelle Jorge. The defendants’ responding motion record contains an affidavit from a lawyer representing them. The following facts are indicated in the material and do not appear to be in dispute.
[3] On May 3, 2011 the plaintiff was involved in a motor vehicle accident with a car driven by the defendant, Yoav Aharon Cohen-Rimmer, and owned by the defendant, Benjamin Howard Cohen. Using her former lawyer, Shahen Alexanian, the plaintiff commenced this action on March 15, 2013 seeking damages arising from this accident. The defendants delivered a statement of defence on April 17, 2013.
[4] The plaintiff and the defendant, Mr. Cohen, were examined for discovery on May 24, 2014. Undertakings were given.
[5] On February 27, 2015 the plaintiff was involved in another motor vehicle accident with a car driven by one, Hyun Jin Cho. Using a different lawyer, she commenced an action for damages arising from that accident on August 5, 2016. A statement of defence was delivered on or about March 20, 2017.
[6] Meanwhile on April 22, 2015 the defendants brought a motion in this action for an order that the plaintiff answer her undertakings. A consent order was issued by Associate Justice McAfee on that day requiring that these undertakings by answered in sixty days. The order required that the plaintiff pay costs of $500. By letter dated May 28, 2015 the Alexanian law firm purported to answer plaintiff undertakings.
[7] A mediation took place on May 28, 2017. The case did not settle.
[8] On June 12, 2017 the defendants brought another motion for an order, amongst other things, requiring that the plaintiff comply with the April 22, 2015 undertakings order and for a further and better affidavit of documents. Associate Justice Muir issued an order on consent in this regard on that day, June 12, 2017. It included an order that the plaintiff pay costs of $500.
[9] In September, 2017 the plaintiff retained her present lawyer, Michelle Jorge, in relation to both this action and the Cho action.
[10] On January 31, 2018 Shahen Alexander moved for an order removing that firm from the record. The order was issued. It did more. It required that the action be set down for trial by April 1, 2018 and that Mr. Alexanian release the file to the plaintiff in thirty days. The file was transferred to Ms. Jorge in February, 2018.
[11] On April 24, 2018 Associate Justice Muir issued a consent order extending the set down deadline to May 31, 2018.
[12] In April, 2018 Ms. Jorge directed a manager in her firm to set this action down for trial. On April 25, 2018 the manager directed an articling student to prepare, serve and file the trial record. The articling student did so, but in the Cho action, not this one.
[13] The action was not set down by May 31, 2018. The registrar issued the dismissal order on July 19, 2018. Ms. Jorge received it shortly thereafter.
[14] On August 2, 2018 Ms. Jorge and her clerk instructed the articling student to advise the defendants about the mistake and to prepare the motion material for this motion and to schedule this motion. There is no evidence that the notice was sent. As to the motion material, Ms. Jorge says she reviewed draft motion material in early October, 2018. Whether the articling student did further work on the motion material is unclear. There is no evidence that the articling student scheduled the motion.
[15] On November 26, 2018 Ms. Jorge sent a letter proposing a global mediation. In response, Mr. Essig emailed on November 26, 2018 advising that the action had been dismissed. He reiterated this message in emails to Ms. Jorge dated April 25, May 1, and June 20, 2019.
[16] On June 20, 2019 Ms. Jorge responded to Mr. Essig by email advising of the mistaken set down and of the plaintiff’s intention to bring this motion.
[17] The plaintiff scheduled this motion originally for August 22, 2019 and then for October 31, 2019. On September 30, 2019, LawPro counsel, Mr. Kealy, was appointed for the plaintiff. Mr. Kealy needed more time and the motion was rescheduled for December 3, 2019. There was then another consent rescheduling to February 20 and then to February 28, 2020.
[18] A notice of motion was served on February 7, 2020. The plaintiff’s motion record was served on February 12, 2020. However, the February 28, 2020 date was not secured, and the motion was rescheduled to May 5, 2020.
[19] Because of the COVID-19 pandemic, the motion had to be significantly rescheduled. It was eventually heard on November 24, 2021. The plaintiff filed two affidavits sworn by Ms. Jorge and an affidavit of the plaintiff wherein the plaintiff states that she always wanted this action to proceed. The defendants filed an affidavit sworn by Neil Searles one of their lawyers.
Issues
[20] From my review of the materials, I believe that the issues to be determined are the following:
a) Has the plaintiff adequately explained the litigation delay? b) Has the plaintiff proven that its failure to set down in time was inadvertent? c) Has the plaintiff proven that this motion was brought promptly? d) Has the plaintiff proven that the defendants are not prejudiced by the delay? e) What is the overall context?
Litigation Delay
[21] The registrar’s dismissal order was issued pursuant to Rule 48.14(1) of the Rules of Civil Procedure, which requires that the registrar issue such an order if an action has not been set down for trial by the fifth anniversary of the commencement of the action. That deadline was extended in this case by court order to May 31, 2018. It was not met, and the registrar issued the order.
[22] The court can set aside such an order, but there is a test to be met by the plaintiff. The following factors must be considered: the length of the litigation delay and whether the plaintiff has provided an adequate explanation for it; whether the failure to meet the mandated time limits was due to inadvertence; whether the motion to set aside the dismissal order was brought promptly; and whether the delay has prejudiced the defendant; see H.B. Fuller Company v. Rogers (Rogers Law Office), 2015 ONCA 173 at paragraph 20. Requiring that each of these factors be proven is not the law. The factors must be considered in a contextual approach along with factors unique to the case; see H.B. Fuller Company, op. cit., paragraph 21.
[23] Concerning the first factor, the evidence shows a litigation delay. After pleadings closed in April, 2013, there was almost a year before discoveries took place. Then there was almost another year before the defendants brought a motion to have the plaintiff’s undertakings answered. Then there was over two years before an unsuccessful mediation took place and the defendants brought another motion to have the full extent of the April 22, 2015 undertakings order complied with. This history shows an inordinate amount of time spent on the plaintiff’s undertakings, namely four years.
[24] In his factum, Mr. Kealy admits “there was some delay in obtaining disclosure.” There was evidence from which I can infer that the plaintiff and her first lawyer worked on complying with her discovery undertakings in the few months before and after the April 22, 2015 undertakings order. This is reflected in the letter Mr. Alexanian sent to Mr. Essig on May 28, 2015 describing the status of the undertakings. However, this is one year after the discovery and there was no explanation for this delay.
[25] The May 28, 2015 letter indicates that undertakings remained outstanding. What further “disclosure” work Mr. Alexanian did in the next 2 ½ years was unclear, a telling uncertainty since the April 22, 2015 order required that the undertakings be completed in sixty days and since the June 12, 2017 order required that the same undertakings be completed in thirty days. The June 12, 2017 order also required that the plaintiff produce a further and better affidavit of documents and produce the listed documents within sixty days. This was no evidence that this was done by Mr. Alexanian. There was no affidavit from Mr. Alexanian or the plaintiff explaining these delays.
[26] As a result, I find that the plaintiff has not adequately explained the litigation delay.
Inadvertence
[27] Concerning the issue of whether the plaintiff has proven that the set down deadline was missed due to inadvertence, the evidence is in favour of the plaintiff.
[28] In her first affidavit Ms. Jorge admits that in late April, 2018 she instructed her office manager to get the action set down by May 31, 2018, the second court ordered deadline. She admits not following up on these instructions. It is undisputed that these instructions were not complied with. It appears that the office manager instructed the articling student to complete this task and that the articling student set the wrong action down for trial, the Cho action. There was no affidavit from the office manager or the articling student.
[29] Mr. Essig drew a distinction between negligence and inadvertence. He argued that this was negligent delegation and supervision by Ms. Jorge, not inadvertence. He presented no case authority in support of this distinction.
[30] I do not accept this argument. In my view, inadvertence lies at the core of negligence. In both cases the conduct involves the lack of care in completing an activity leading to an unintended consequence. Ms. Jorge’s affidavit shows that she always intended to have the action set down by the deadline, and that she did not take care to see to it that that got done. As a result, the deadline was missed. The plaintiff’s affidavit confirms that she always intended on moving forward with this action. This is evidence of inadvertence.
[31] As a result, I find that the plaintiff has proven the required inadvertence.
Prompt Motion
[32] Concerning the issue of whether the plaintiff has proven that this motion was brought promptly, the evidence is problematic for the plaintiff. The dismissal order was issued on July 19, 2018. Ms. Jorge admits in her affidavit that she received the order around that time. She then deposes that she and her law clerk instructed the articling on August 2, 2018 to notify the defendants of the mistake and to prepare and schedule this motion. Astoundingly, Ms. Jorge then left it to the law clerk and the articling student to get this task done.
[33] There is evidence that the articling student may have done only some work on the motion. Ms. Jorge states in her affidavit that she reviewed draft motion material prepared by the articling student in early October, 2018. This is over two months after she received notice of the dismissal order. She then says she “followed up” with the articling student “a couple of times” before May, 2019. She says that her clerk told her that the clerk “followed up” with the articling student on several occasions from December, 2018 to April, 2019. There is no evidence as to what all of these “follow-ups” involved. In any event, the motion was not finalized or scheduled by June, 2019, a period of eleven months after the notice of the dismissal order was received.
[34] What makes the slow pace of this motion preparation egregious was the fact that Ms. Jorge received several written notices from Mr. Essig during this time that the action was dismissed. Ms. Jorge proposed a global mediation in a letter dated November 26, 2018. In response on the same day, Ms. Essig emailed advising of the dismissal order. He reiterated that message in emails dated April 25, May 1, and June 20, 2019 refusing to participate in any global mediation as a result. None of this seems to have goaded Ms. Jorge into taking charge of the motion preparation and scheduling.
[35] On June 20, 2019, eleven months after being notified of the dismissal order, Ms. Jorge finally emailed Mr. Essig advising of the set down mistake and of the plaintiff’s intention to bring a motion to set the dismissal order aside. She then says that she prepared a notice of motion for this motion with a return date of October 31, 2019. Then in September, 2019 LawPro counsel, Mr. Kealy, was appointed. There is no evidence as to when LawPro was notified. It was Mr. Kealy who then took charge and prepared and scheduled the motion. He served the notice of motion on February 7, 2020.
[36] I draw the conclusion from this evidence that Ms. Jorge did very little to bring on this motion for over a year after being notified of the dismissal order.
[37] Mr. Kealy argued in his factum that this delay did not amount to a failure to move promptly. He referred to the decision of the Court of Appeal in Finlay v. Paassen, 2010 ONCA 204. Here there was a two-year delay from the discovery of the dismissal order to the commencement of the motion. The judge at first instance held that this delay alone justified denying the motion. At paragraph 29 the Court of Appeal held that the delay was “undesirable,” but that it had to be put into the context of the other factors. It also said that the motion delay “had to be assessed in the context of the time frame preceding it – a time frame in which the lawsuit proceeded relatively quickly.” In other words, the Court in Finlay did not describe the motion in that case as having been brought promptly. It held that the delay had to be placed into context, including most importantly the speed of the action prior to the dismissal order. Therefore, the Finlay decision does not assist the plaintiff. It does not confirm that a two-year delay in bringing the motion is prompt. Also, unlike in Finlay, I have held that there was litigation delay prior to the dismissal order in the case before me.
[38] A motion to set aside a dismissal order must be brought promptly. You cannot wait over a year to put LawPro on notice and start serious motion preparation work. As a result, I find that the plaintiff has failed to prove that this motion was brought promptly.
Prejudice
[39] The final factor is the most important one: “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;” see Marché D'Alimentation Denis Thériault Ltée v. Giant Tiger Stores Limited, 2007 ONCA 695 at paragraph 12.
[40] Many of the usual indicia of prejudice are not shown in the evidence. The plaintiff in her affidavit states that she is not aware of any witnesses to the accident in this case other than the operators of the vehicles. This was not challenged. It is undisputed that these persons remain alive and capable of giving evidence. There was no evidence from either party that any of the treating physicians or other potential witnesses are not available and capable of given evidence. Furthermore, in her second affidavit, Ms. Jorge deposes as to an impressive amount of documentary disclosure the plaintiff has now made in compliance with the two undertakings orders, primarily after Ms. Jorge became the plaintiff’s lawyer.
[41] The defendants raise three concerns. First, they allege that the plaintiff’s delay in complying with her undertakings and the two undertakings orders has caused the loss of key medical evidence concerning the plaintiff’s pre-accident condition. The plaintiff moved to Ontario from Nova Scotia in December, 2010, namely about five months before the accident. The June 12, 2017 order required that the summary of the Nova Scotia Medical Services Insurance (“MSI”) be produced along with the clinical notes and records of all treating physicians, specialists and hospitals the plaintiff attended in Nova Scotia for the period three years before the accident. Ms. Jorge made the request for the MSI summary for the first time on January 21, 2020, namely about 2 ½ years after it should have been obtained.
[42] The MSI summary shows that the plaintiff was seen by two doctors in Nova Scotia during that three-year period before the accident – Dr. Khalil on four occasions between October 30, 2009 and October 20, 2010 concerning vaccination, hypertension and morbid obesity, and Dr. Gobran once on September 23, 2010 for a backache. Ms. Jorge contacted the Bedford Central Medical Clinic but was advised that Dr. Khalil had moved to British Columbia and that the plaintiff was not on their filing system. Ms. Jorge contacted Dr. Gobran at the Duffus Health Centre. Dr. Gobran advised that there were no records concerning the plaintiff at the Duffus Health Centre or at the Halifax Refugee Clinic, where he also worked. The plaintiff recalled that she saw the two doctors at the Lacewood Clinic. An interact search on May 31, 2021 indicated that the Lacewood Clinic is closed and that its owner, Dr. Michael Power, moved to Toronto in 2014. No further work has been done to obtain these documents.
[43] The second concern is about the records of the plaintiff’s family doctor in Ontario – Dr. Pazucki. The defendants allege that the medical notes and records of Dr. Pazucki for six attendances have not been produced. The plaintiff undertook to produce Dr. Pazucki’s clinical notes and records. The plaintiff produced an OHIP summary. It shows dates of attendances with Dr. Pazucki. Mr. Alexanian made many written requests of Dr. Pazucki in 2015 for the doctor’s clinical notes and records. Mr. Alexanian disclosed what he received on April 27, 2015. These records apparently do not include attendances the OHIP summary shows the plaintiff made on Dr. Pazucki on May 18, 20, 22, June 17 and July 23, 2011. In his June 12, 2017 order Associate Justice Muir ordered that the records for these six attendances be produced. There is no evidence that the plaintiff has made further efforts to get those specific records, and they remain outstanding.
[44] The third concern is the non-disclosure of the clinical notes and records of the physiotherapy clinic the plaintiff attended after the accident – Healing Hands Healthcare Inc. The plaintiff undertook to produce these records. Mr. Alexanian sent many written requests to Healing Hands in 2015 for these records. Ms. Jorge asked for them again in November, 2019. To date they have not been produced.
[45] Mr. Essig argued that these documents are important to the defendants’ case and may no longer exist as the Canadian Medical Association guidelines advise physicians to retain records for no more than ten years. He also argued that the defendants were reasonable in relying on the plaintiff’s undertakings and the two undertakings orders in this regard, and in not taking proactive steps such as a Rule 30.10 motion for third party production.
[46] Having considered these points, I find that the plaintiff has proven that the defendants have not demonstrated a significant prejudice on account of the litigation delay and the motion delay. The following are my reasons.
[47] First, I agree with Mr. Kealy that the conditions that appear to have caused the plaintiff to see Dr. Khalil do not appear relevant to the accident. The backache that caused the plaintiff to see Dr. Gobran on September 23, 2010 (seven months before the accident) on the other hand may have some relevance. That leads to my second point.
[48] Second, the evidence indicates that the relevant records from Nova Scotia may still exist as no one has located this Dr. Michael Power or brought a Rule 30.10 motion. The CMA guidelines about document retention are just guidelines which careful physicians may not follow choosing instead to retain documents longer. No one has tested the proposition by bringing the requisite Rule 30.10 motion. On the other hand, if the records do not exist, the evidence suggests that they may have been lost as early as 2014 when the Lacewood Clinic closed, namely before the litigation delay and the motion delay.
[49] Third, the evidence indicates that the Pazucki records may not exist due to reasons having nothing to do with the litigation and motion delays. Mr. Alexanian made several requests of the doctor in 2015 to produce the records and indeed paid for them. Ostensibly all of the records were produced. That suggests that the subject records may have been lost at the doctor’s office for some reason. If they existed and were just overlooked, there is again no credible evidence that they do not still exist. Perhaps the plaintiff should have taken further steps all along to clarify this issue; but neither did the defendants. No Rule 30.10 motion has been brought, by either side. I also reiterate my comments about the CMA guidelines on document retention.
[50] Fourth, the same can be said about Healing Hands documents. There is no credible evidence that these documents do not still exist.
[51] Mr. Kealy relied heavily on the argument that the defendants cannot sit back and rely entirely on plaintiff undertakings to produce the third party documents the defendants say they need for their defence. I agree with that argument when it relates to undertakings to get relevant documents from third parties, such as with the records of Drs. Khalil, Gobran, Pazucki and Healing Hands. The plaintiff may not have the power or control over these third parties to cause the necessary production. In these circumstances, either party can and should avail themselves of Rule 30.10, the rule which authorizes either party to move for third party production. The defendants should not get the benefit of an action dismissal for reasons of third party document non-disclosure they could have avoided with such measures. This is particularly the case where the plaintiff has demonstrated a good faith attempt to get these third party records that failed, such as in this case.
[52] Mr. Essig argued that the principal of finality should govern. He referred me to the decision of the Court of Appeal in Prescott v. Barbon, 2018 ONCA 504. In the Prescott decision at paragraphs 36 and 37 the Court held that there are two dimensions to the issue of prejudice. First, there is the question of actual prejudice, which I have dealt with. Second, there is the question of finality. In paragraph 36 the Court described this principle as follows: “whether in light of the delay, the principle of finality and the respondents' reliance on the security of its position should nevertheless prevail.” The Court relied on this principle in part to uphold the dismissal order.
[53] I distinguish the Prescott case from the one before me. In Prescott the plaintiff was involved in a motor vehicle action but took virtually no steps to prosecute the action other than the step of bringing the motion to set aside the dismissal order. The defendant had not even defended the action. There was also an egregious delay of 2.5 years in bringing the motion. In the case before me the plaintiff, while having delayed the litigation by not answering discovery undertaking in a timely way and by delaying the motion without adequate explanation, has shown that she moved the case forward through pleadings and discovery. Indeed, her undertakings appear now to be completed with considerable documentary disclosure. The evidence does not show that the plaintiff abandoned the case at any point. The case appears to be ready to be set down. This is not a case where the principle of finality should govern.
Context
[54] Because of my ruling on prejudice, I am prepared to allow the motion despite the plaintiff’s failure to adequately explain the litigation delay and her failure to promptly bring this motion. As stated by the Court of Appeal in Finlay, op. cit., at paragraph 28, prejudice is “a key consideration on a motion to set aside a dismissal order.”
[55] In Finlay there had been a delay in bringing the motion of two years. The Court of Appeal found that this failure to move promptly was offset by other factors, such as the speed of the litigation prior to the dismissal order and the lack of any evidence that the plaintiff had deliberately decided not to move the litigation forward. A major factor in this decision was the failure of the defendants to show that they had been prejudiced by the delay. The defendants made bald assertions such as that finding witnesses would be “extremely difficult” and that witness memories would be “hampered” by the delay. The Court found that this did not establish prejudice and set aside the dismissal order.
[56] In the case before me, I similarly find that that there has been no evidence that the plaintiff ever abandoned this action. That finding combined with the lack of evidence that the defendants will be significantly prejudiced by continuing the action has convinced me to also set the dismissal order aside.
[57] I am also mindful that the court prefers determining cases on their merits particularly where delay results from an error committed by counsel; see Fuller, op. cit., at paragraph 27. That preference would certainly apply here to the motion delay which appears to be entirely a result of counsel conduct. Whether it applies to the litigation delay is unclear.
Conclusion
[58] I, therefore, grant the motion and set aside the registrar’s dismissal order.
[59] Concerning costs, Mr. Kealy filed a costs outline for the plaintiff that showed a total of $9,232.10. Mr. Essig filed a costs outline for the defendants that showed a total of $6,881.70.
[60] I have decided to make no order as to costs. The plaintiff succeeded on this motion, but, in my view, is not deserving of costs given her delay of the litigation, her mistake in setting this action down for trial, a mistake which led directly to the dismissal order, and her delay in bringing this motion. She was the cause of this motion and made this motion much more of a contest than it should have been with this conduct. The result was to a significant extent an indulgence. The defendants are of course not deserving of costs as they were not successful.
[61] I, therefore, make no order as to costs.
DATE: January 3, 2022
ASSOCIATE JUSTICE C. WIEBE