Court File and Parties

Court File No.: CV-13-206 Date: 2022-03-15 Ontario Superior Court of Justice

Between: The Estate of James Freure by its Litigation Administrator Catherine Chapman, Plaintiff Fae Freure, Plaintiff Catherine Chapman, Plaintiff

– and –

Terracon Underground Ltd., Defendant Meritech Engineering, Defendant The Corporation of the City of Kitchener, Defendant Lombard Insurance Company, Defendant 1000234 Ontario Limited c.o.b. Winmar Waterloo Region, Defendant

Counsel: J. Van Allen, for the Moving Party/Plaintiffs The Estate of James Freure by its Litigation Administrator Catherine Chapman, Fae Freure, and Catherine Chapman J. Skukowski, for the Defendants Terracon Underground Ltd. and Lombard Insurance E. Sherkin, for the Defendant Meritech Engineering N. Downer and N. Kiddie for the Defendant The Corporation of the City of Kitchener S. Johnson, for the Defendant 1000234 Ontario Limited c.o.b. Winmar Waterloo Region

Heard: Heard by video conference, September 2, 2021

The Honourable Justice I.R. Smith

Reasons on Motion

Introduction

[1] The plaintiffs bring a motion to set aside the Registrar’s order dismissing their action against the defendants.

[2] The plaintiffs commenced the action after the flooding at the residence of the plaintiffs James and Fae Freure (92 Borden Avenue North, Kitchener (the “property”)) in 2011. They claim that the flooding was caused by the negligent construction of an easement pipeline commissioned by the defendant the Corporation of the City of Kitchener (the “City”). Work on the pipeline was carried out by the defendants Terracon Underground Ltd. (“Terracon”) and Meritech Engineering (“Meritech”). The defendant Winmar Waterloo Region (“Winmar”) did the post-flood remediation work on the plaintiffs’ residence. That work is said to have been negligently completed. The defendant Lombard Insurance Company (“Lombard”) is the insurer of Terracon and is said to have failed to authorize appropriate remediation and testing work on the property.

[3] James Freure was the registered owner of the property and claimed damages totalling $2 million. Those damages are said to arise from damage to the property (including indoor mould growth), the costs of remediation, and the serious effects of mould on Mr. Freure’s health.

[4] The plaintiff Catherine Chapman is the daughter of James and Fae Freure. She did not live at the property at the relevant times. The claims of Ms. Chapman and Fae Freure are for damages under the Family Law Act, R.S.O. 1990 c. F3 ($50,000 each) and for special damages ($50,000 each).

[5] The plaintiffs’ notice of action was issued on March 5, 2013, and the statement of claim was filed on March 26, 2013. The action was dismissed by the Registrar on March 5, 2018. A notice of motion to set aside the Registrar’s order was served on November 5, 2018. The plaintiff’s motion record was filed on June 11, 2019. The motion, opposed by all defendants, was argued roughly 10 years after the events which generated the action, and more than 8 years after the action was commenced.

[6] Since the action was launched there have been two sad developments. First, Fae Freure has been diagnosed with dementia and now lives in a nursing home. She is now 89 years old. Ms. Chapman has power of attorney over Fae Freure’s affairs. On this motion she also seeks an order that she be appointed litigation guardian for Fae Freure.

[7] Second, James Freure died in February 2021, at the age of 88. An order to continue the action in the name of the estate of Mr. Freure was obtained in July 2021 with Ms. Chapman as litigation administrator.

[8] The law respecting the setting aside of a registrar’s dismissal order is well-known and the parties agree that the four most important factors for the Court to consider are (1) the explanation for the delay; (2) inadvertence in missing the deadline; (3) the promptness with which the motion to set aside the registrar’s order has been brought; and (4) prejudice to the defendants (see Reid v. Dow Corning Corp., (2001), 11 C.P.C. (5th) 80 (Ont. S.C.J.)). The test is not rigid. The plaintiffs need not satisfy all four of the Reid criteria (indeed, there may be more than four relevant factors in any given case) and no one factor is decisive. Instead, I am to consider the matter contextually, balancing all the relevant factors with a view to finding the just result that considers both the hope that matters will be decided on their merits and the need for litigation to be prosecuted in a timely fashion (see: Habib v. Mucaj, et al., 2012 ONCA 880, at paras. 5 – 7; Scaini v. Prochnicki, et al., 2007 ONCA 63, at paras. 21 – 25; Marche D’Alimentation Denis Theriault Ltée., et al. v. Giant Tiger Stores, 2007 ONCA 695, at paras. 20 – 21, 25; H.B. Fuller Company v. Rogers Law Office, 2015 ONCA 173, at paras. 20 – 27; Corporation of the City of Hamilton v. Svedas Koyanagi Architects Inc., et al., 2010 ONCA 887, at paras. 22 – 23).

[9] In this case, for the reasons which follow, I find (1) that the plaintiffs have failed to provide a satisfactory explanation for significant delays in this litigation; (2) that the missed deadline was not a matter of mere inadvertence; (3) that the motion to set aside was not promptly brought; and (4) that the defendants have suffered prejudice from the significant delays in this matter. Balancing all of these factors, I am of the view that the motion should be dismissed.

Explanation for the Delay

[10] A consideration of the delay in this case requires that I set out some of the history of the litigation.

[11] The plaintiffs retained James Pitcher in October 2012. He had carriage of this matter until February or March of 2017. At that time, the plaintiff’s retained Michael Mollison who acted for them until the Fall of 2018, at which point the plaintiff’s retained Gregory Brimblecombe who continues to act for the plaintiffs.

[12] As I have said, the events in issue in the action occurred in 2011. In October of 2012, Mr. Pitcher wrote to the defendants and put them on notice of the plaintiffs’ claim. In March of 2013 the notice of action was issued and the statement of claim filed. By June 4, 2014, the pleadings were closed.

[13] The parties then agreed on dates for discoveries. The plaintiffs were to be discovered on November 11, 2015, and the defendants on January 26 and 27, 2016. However, the plaintiffs’ affidavit of documents and schedule A productions were not delivered until November 5, 2015. The City objected to the late delivery of the plaintiffs’ productions and the discovery of the three plaintiffs was rescheduled for the first date set aside for discovery of the defendants, January 26, 2016.

[14] On that date, Mr. Freure’s examination commenced but was not completed and neither of the other plaintiffs was discovered. Mr. Freure had attended with a binder of documents not previously produced. Those documents, along with some others, were not produced to the defendants until May of 2017, more than a year later. None of the defendants was discovered on the dates set aside in January 2016. The discoveries were delayed at the request of counsel for the plaintiffs, then Mr. Pitcher. They have still not been completed.

[15] On May 10, 2016, the defendants made a collective offer to settle. The plaintiffs never provided a response to this offer.

[16] Counsel for Terracon wrote to Mr. Pitcher on September 1, 2016, to ask whether the plaintiffs had a response to the offer to settle. In the absence of a response, counsel wrote again on October 28, 2016, saying that he would be seeking instructions to have the action dismissed for delay.

[17] Counsel for Winmar wrote to Mr. Pitcher on February 2, 2017, noted the delay since the offer to settle had been made, and indicated that she would be seeking instructions to have the action dismissed for delay.

[18] Shortly thereafter, the plaintiffs retained Mr. Mollison. On February 9, 2017, he told counsel to Terracon that he would be meeting with the plaintiffs soon and that he would then respond to the defendants.

[19] On March 8, 2017, counsel to Winmar wrote to Mr. Mollison, noted again that it had been some time since the offer to settle was made, and advised again that she would be seeking instructions to have the action dismissed for delay. That same day, counsel for Terracon also wrote to Mr. Mollison and asked whether he had instructions with respect to settlement.

[20] On May 2, 2017, counsel to Winmar wrote again to Mr Mollison. She pointed out that there had been no response to the defendants’ offer to settle (made almost exactly one year earlier); that the plaintiffs had promised to produce documents which had not yet been received; and that she was seeking instructions to have the action dismissed for delay.

[21] On May 10, 2017, Mr. Mollison wrote to the defendants enclosing a damages brief and advising that property damage was less than $100,000 but that the defendants could expect a further claim given Mr. Freure’s deteriorating health.

[22] Eventually, all counsel arranged for a conference call on August 25, 2017. The defendants’ collective settlement offer was discussed again.

[23] On September 19, 2017, counsel to Winmar wrote to Mr. Mollison to inquire about whether he had instructions respecting the settlement offer.

[24] Having received no reply, counsel to Winmar wrote again on October 11, 2017. She asked again if Mr. Mollison had instructions respecting settlement and asked that Mr. Mollison contact her office to arrange for discoveries in event that the plaintiffs were not prepared to settle.

[25] On November 22, 2017, counsel to Winmar wrote again to Mr. Mollison to ask if he had instructions respecting settlement, failing which she wished to arrange for discoveries.

[26] On December 22, 2017, counsel to Winmar wrote again and asked Mr. Mollison again if the plaintiffs had provided instructions respecting settlement, failing which, again, she wished to arrange for discoveries.

[27] In December 2017, Mr. Mollison left one law firm and joined another. He continued to act for the plaintiffs at his new firm.

[28] On February 1, 2018, counsel to Winmar wrote again and asked Mr. Mollison to contact her office to arrange for discoveries. She added: “This matter has stagnated for long enough – it’s time to get it moving again.”

[29] On February 22, 2018, counsel to Winmar wrote to Mr. Mollison as follows:

Please be advised that my client has grown weary of this file collecting dust in my office. As you seem unprepared to move the matter along, I have now received instructions to bring a motion to dismiss the action for delay. My assistant will be in contact with your office to arrange a mutually convenient date.

[30] On March 5, 2018, the registrar dismissed the action for delay.

[31] That same day, March 5, 2018, and before he knew that the registrar had dismissed the action, Mr. Mollison wrote to counsel for the defendants to advise that the plaintiffs were elderly, were now living in a nursing home, and were not competent to undergo discoveries. He further advised that before there was a question as to the competence of the plaintiffs, they had previously rejected the defendants’ offer to settle (something not previously communicated to the defendants), and that Ms. Chapman was “the only person you can really talk to.” Mr. Mollison wrote that he would be speaking to Ms. Chapman “in the very near future to see what position my clients are taking relative to this action.” When Mr. Freure was cross-examined on the affidavit he swore for use on this motion, he denied having dementia or other cognitive issues, although it is clear from a reading of the transcript of that cross-examination that his memory was failing. It is also clear that Mr. Freure did not live in a nursing home. The assertion that the defendants’ offer to settle had been rejected was not confirmed. In any case, there is no evidence that Ms. Chapman provided instructions respecting settlement thereafter as had been predicted by Mr. Mollison’s letter.

[32] In any case, Mr. Mollison discovered that the action had been dismissed on March 15, 2018. On March 22, 2018, counsel for the defendants withdrew their offer to settle.

[33] On April 3, 2018, Mr. Mollison wrote to counsel for the defendants asking for their consent to an order setting aside the Registrar’s dismissal of the action. No consents were forthcoming. I note that in this letter, Mr. Mollison advised counsel that he had “just received this file today” from his former firm.

[34] There is before me no evidence that provides a satisfactory explanation for the significant delays in this case.

[35] On this motion, the plaintiffs rely on affidavits from Mr. Freure and Ms. Chapman, and from the plaintiffs’ new counsel, Gregory Brimblecombe. There is no affidavit from Mr. Mollison or from Mr. Pitcher. Mr. Brimblecombe advises that he has reviewed the file and that he has spoken with Mr. Mollison (but not Mr. Pitcher), who has only a general recollection of his handling of this file. Mr. Brimblecombe added that Mr. Mollison is elderly and that his recollections may not be reliable in any event, a point Mr. Brimblecombe reiterated when he was cross-examined. Mr. Brimblecombe’s affidavit sets out the chronology of this matter, much of which I have set out above, but fails to provide any explanation for the periods of delay, unresponsiveness and inaction in this matter.

[36] As set out above, the total delay in this case is significant. While the pleadings were complete relatively promptly, discoveries are still not complete. The first date set for discovery of the plaintiffs was abandoned because the plaintiffs delivered their affidavit of documents and schedule A productions just two business days before that date. Moreover, those productions were obviously incomplete and caused the examination of Mr. Freure to go uncompleted and adjourned to a future date. As I have said, Mr. Freure has now died and is no longer available for discovery. Ms. Freure cannot be discovered and Ms. Chapman has not been discovered. Neither has any of the defendants been discovered. Counsel for the plaintiffs repeatedly failed to respond to inquiries about rescheduling discoveries and apparently took no steps to schedule discoveries. Undertakings provided at Mr. Freure’s incomplete discovery were not completely fulfilled until January 11, 2021, five years after that examination. On that date, the defendants were provided with various medical records – roughly ten years after Mr. Freure says he began to experience symptoms and just one month before he passed away. Those medical records were not even requested by the plaintiffs until September 4, 2019. None of these failures to act, or failures to act promptly, is explained anywhere in the evidence before me.

[37] In the 13 or 14 months following the truncated discovery of Mr. Freure (January 2016 – to March 2017), the plaintiffs and their counsel appear to have done nothing to advance the litigation and no explanation for this lack of progress is advanced. No attempt to reschedule discoveries was made. No response to a good faith settlement attempt was provided. Nothing else happened.

[38] In March of 2017, Mr. Mollison took carriage of the plaintiffs’ file. Some progress was made over the next few months. Mr. Mollison met with Ms. Chapman, sent a damages brief to the defendants, and arranged a conference call for August 25, 2017, at which time the offer to settle was made again. After that date, however, again the delay remains completely unexplained and seems inexplicable. No response to the offer to settle was provided. Despite the apparent lack of interest in settlement discussions, Mr. Mollison took no steps to advance the matter toward trial. [1] There was no effort to schedule discoveries. When counsel for the defendant Winmar attempted to communicate respecting a schedule for discoveries, she received no response. No explanation has been provided for this complete failure to take basic steps to advance the litigation.

[39] In February 2018, Mr. Mollison was advised that some of the defendants had instructions to move to dismiss the action for delay. Only then did Mr. Mollison take the step of retrieving the hard copy of the plaintiffs’ file from his old firm, which he had left in December 2017. He did not receive the file until April 3, 2018.

[40] The change in counsel from Mr. Pitcher to Mr. Mollison does not adequately explain the further delay in this case. Mr. Mollison appears to have advanced the litigation between March and August of 2018, but thereafter the matter became stagnant again. Mr. Mollison’s near complete failure to be responsive to counsel for the defendants is explained nowhere in the evidence before me.

[41] Despite knowing that the plaintiffs’ matter had to be set down for trial before March 5, 2018, Mr. Mollison took no attempt to set a timetable or to schedule a status hearing for the matter. No explanation for any of this inaction is provided by the plaintiffs on this motion. Perhaps that is because there is no satisfactory explanation for the failure to take the most basic steps, like participating in settlement discussions, moving forward with discoveries, bringing a motion to extend time, or serving a trial record (Corporation of the City of Hamilton v. Svedas Koyanagi Architects Inc., et al., 2010 ONCA 887, supra, at paras. 29 – 31).

[42] The plaintiffs’ counsel do not appear to have taken the matter seriously, but the plaintiffs James Freure and Ms. Chapman also appear to have taken little interest in the suit once it was initiated. Mr. Freure deposed that his daughter, Ms. Chapman, was assisting him in his communications with counsel and that he was content to leave the matter in counsel’s hands. He “did not see the need to follow up with them on a regular basis to inquire about the status of my action.” When he was in contact with his counsel, however, he was given to understand that matters were progressing normally. He deposed that it has always been his intention to proceed with this action. Ms. Chapman provided a very similar affidavit.

[43] Mr. Freure testified that he never wrote to his counsel but that he or Ms. Chapman did speak to counsel from time to time. Mr. Freure could not say what if any steps he himself took to advance his case and did not know if his counsel had taken any such steps, although his counsel notes that Mr. Freure commissioned a mould investigation report on the property, then retained counsel (more than once), attended for a medical exam, prepared a document brief, and attended for discovery (which, as I have noted, was not completed). All these steps were early on in the life of this matter. Neither Mr. Freure nor Ms. Chapman made any inquiries of counsel about the incomplete discoveries. There is little or no evidence of any communications between the plaintiffs and Mr. Pitcher. There is some evidence that Ms. Chapman met with Mr. Mollison in February and April 2017, and communicated with his office by email in September 2017. Otherwise, her communications with Mr. Mollison (of which there is any record) post-dated the registrar’s dismissal of the action.

[44] In other words, once the case was launched, the plaintiffs were themselves mostly passive participants in their own suit. It is the plaintiffs and their counsel who shoulder the responsibility to advance the litigation and who typically suffer the consequences when proceedings move too slowly (1196158 Ont. Inc. v. 6274013 Canada Ltd., et al., 2012 ONCA 544, at para. 28; Jadid v. Toronto Transit Commission, et al., 2016 ONCA 936, at para. 20). Here, there is little evidence of an intention to take that responsibility seriously by either counsel or the plaintiffs. The plaintiffs offer little more than bald statements of an intention to proceed and the conduct of counsel evidences almost no intention to proceed with the matter even in the face of repeated inquiries by the defendants, a good faith settlement offer, and repeated threats to move to have the action dismissed for delay.

[45] This factor weighs against the plaintiffs.

The Missed Deadline

[46] This matter ought to have been set down for trial by March 5, 2018 (Rule 48.14(1)).

[47] As noted above, Mr. Mollison moved from one law firm to another in December of 2017. On February 26, 2018, Mr. Mollison wrote to Ms. Chapman asking her to sign an authorization and direction so that he could retrieve the file in this matter from his former firm. The signed authorization and direction was received by Mr. Mollison on March 13, 2018. The file was received by Mr. Mollison on April 3, 2018. By then, of course, Mr. Mollison knew that the registrar had dismissed the action.

[48] In his affidavit, Mr. Brimblecombe deposes as follows:

On or about April 28, 2017, Mr. Mollison received the Plaintiff’s file from Mr. Pitcher and this file was opened in his name. I am advised by Mr. Mollison and do verily believe that at the time the file was opened, a yellow folder was created with a label on it dated April 28, 2017, noting Mr. Mollison as the responsible lawyer. There is a handwritten note on the front of the file folder that states “Set down for trial by March 2018.” […] I am advised by Mr. Mollison and do verily believe that his secretary, who was responsible for tracking deadlines, also diarized the March 2018 deadline for dismissal of this action in either his paper diary and/or electronic diary system.

I am advised by Mr. Mollison and do verily believe that he and his secretary overlooked the March 2018 deadline that had been indicated on the front of the file … as a result of him transitioning his practice from Cohen Highley to Harris Law as he had not yet received the physical file from Cohen Highley by March of 2018. Further, the calendar entry that had been made was not properly transferred on the transition of his practice.

[49] There is no affidavit from either Mr. Mollison or his secretary. There is no explanation for why or how the calendar entry was not properly transferred to Mr. Mollison’s new firm.

[50] On cross-examination, Mr. Brimblecombe said that he did not know where the deadline had been diarized, said that he would “only be guessing” when asked who the secretary was, that the information he had on this point was hearsay, that he did not know if Mr. Mollison kept an electronic diary, and that he did not know what steps Mr. Mollison took to ensure that his practice generally and this file specifically were transferred from his old firm to his new firm.

[51] On this record, the plaintiffs argue that the missed deadline was a matter of mere inadvertence that “has been explained.” There was always an intention to set the matter down for trial.

[52] The defendants take a different view, arguing that the explanation is inadequate, and that the claim of inadvertence and an intention to set the matter down is difficult to credit given the plaintiffs’ unexplained delays and lack of attention to this matter both before and after the registrar dismissed the action. I have already considered the former (in which there is no evidence of an intention to set the matter down for trial or request a status hearing prior to March 5, 2018, – other than the one-line note written on the file folder) and will address the latter under the next heading.

[53] Even if the March 5 deadline was missed on that date because Mr. Mollison did not yet have his file from his former firm (although not even this is clear, in my view), there is no explanation for why the matter was not set down for trial when Mr. Mollison did have his file, i.e., the bulk of 2017.

[54] In my view, the defendants’ argument is compelling. It was not mere inadvertence that caused the deadline to be missed. Plaintiffs’ counsel knew what the deadline was – it was noted on the front of the file and in his diary (Assaf v. City of Toronto, 2018 ONSC 5408, at para. 15). That deadline was missed because almost no steps were taken to advance the litigation toward trial in the more than two years following the aborted discoveries in January of 2016. The plaintiffs and their counsel, as I have already concluded, were largely inactive and unresponsive during that time (Marche D’Alimentation Denis Theriault Ltée., et al. v. Giant Tiger Stores, 2007 ONCA 695, supra, at para. 27; Abou-Naoum v. Leon’s Furniture Limited, 2016 ONSC 7341, at paras. 53 – 61).

[55] In all these circumstances, this factor weighs against the plaintiffs.

The Promptness of the Motion

[56] After Mr. Mollison discovered on March 15, 2018, that the action had been dismissed by the registrar, the defendants withdrew their offer to settle. On April 3, 2018, Mr. Mollison wrote to counsel for the defendants and asked for their consent to an order setting aside the registrar’s dismissal. The defendants did not consent. He wrote again on May 1, 2018, and again asked for the consent of the defendants. Counsel for Terracon replied on May 2, 2018, saying that Terracon would not consent.

[57] Mr. Mollison told Ms. Chapman that he could no longer act for the plaintiffs because the matter had been dismissed, which put him into a position of conflict, although it is not clear when he had this communication with Ms. Chapman. Mr. Mollison reported the matter to LawPRO on October 3, 2018. He also gave the names of other lawyers to Ms. Chapman and suggested she retain one of them. Mr. Brimblecombe was retained by the plaintiffs to replace Mr. Mollison in the fall of 2018. Mr. Brimblecombe met with Mr. Mollison on September 26, 2018, and his notice of change of lawyer was served on the defendants November 2, 2018. On that date, Mr. Brimblecombe also asked if the defendants would consent to a motion to set aside the dismissal. Counsel to Terracon wrote that same day and advised that Terracon would not consent and that he suspected that none of the other defendants would consent either. Counsel asked that a mutually agreeable date be arranged for the hearing of the motion.

[58] Mr. Brimblecombe served the notice of motion for this motion on November 5, 2018, eight months after the registrar’s order. Counsel retained by LawPRO was engaged in October 2018 and, on February 8, 2019, she wrote to counsel for the defendants. The plaintiffs’ motion record, with a revised notice of motion, was served on the defendants on June 12, 2019, more than seven months after the original notice of motion was filed.

[59] The matter was listed for argument during the week of October 28, 2019, then adjourned to the week of May 11, 2020. Cross-examinations on affidavits filed by the parties were conducted in September and October 2019.

[60] Beginning in March 2020, the COVID-19 pandemic began to interfere with the operation of the courts. This motion was one of many which was rescheduled. Eventually, on July 27, 2020, according to the plaintiff’s factum, the trial co-ordinator directed that a date for the motion to be heard by video would be provided after the motion materials were filed electronically. Thereafter, the motion was not rescheduled until January 2021 because counsel retained by LawPRO was considering “several issues” and “was awaiting instructions.” On January 21, 2021, almost three years after the registrar’s dismissal, counsel advised the defendants that she would be proceeding with the motion.

[61] The plaintiffs argue that the motion was brought promptly. In my view, it was not and little of the delay in bringing the motion has been explained.

[62] There is no explanation for why it took Mr. Mollison over two weeks to take even a single step to react to the registrar’s dismissal. There is no explanation for why no steps were taken while Mr. Mollison waited for the defendants to indicate whether they would consent to a motion to set aside the registrar’s dismissal. There is no explanation for why nothing happened when it was apparent that at least one of the defendants would not consent to the motion. There is no explanation for why it took at least 6 months for the plaintiffs to retain new counsel. There is no explanation for why it took 6 and a half months for LawPRO to be advised of the missed deadline. There is no explanation for why Mr. Brimblecombe did not immediately upon his retainer file a notice of motion to have the dismissal set aside. There is no explanation for why it took until June 12, 2019, for the plaintiffs to file its initial motion record, which is comprised of two very short affidavits from Mr. Freure and Ms. Chapman, and an affidavit from Mr. Brimblecombe which does little more than describe the chronology of events evidenced in the correspondence and other documents attached to the affidavit. While I accept that the pandemic caused delay in this case, there is nevertheless only the barest explanation for the six-month delay in having this motion rescheduled after the trial co-ordinator’s July 27, 2020, directions to counsel. That explanation (that counsel was considering “several issues” and “awaiting instructions”) reveals nothing.

[63] None of this was prompt. A notice of motion could and should have been filed as soon as the missed deadline was discovered (see Rule 37.14(1); Wellwood v. O.P.P., et al., 2010 ONCA 386, at para. 79; compare the prompt filing of the notice in Reid v. Dow Corning Corp., (2001), 11 C.P.C. (5th) 80 (Ont. S.C.J.), supra, at para. 66). LawPRO could have been advised that same day. The plaintiffs should have retained new counsel immediately. Work could have begun on the motion record very shortly thereafter and completed shortly after that. The consideration of issues while waiting for instructions did not prevent the selection of a date for the hearing of the motion while consideration of the issues continued (see, Vaccaro v. Unifund Insurance Company, 2011 ONSC 5318, at paras. 47 – 48; MacKenzie v. Visentin, et al., 2011 ONSC 6072, at paras. 31 – 35).

[64] This factor weighs against the plaintiffs. The motion was not brought promptly.

Prejudice

[65] The fourth of the four Reid factors is the prejudice caused by the delay to the defendants. In this case, I am satisfied that there is such prejudice.

[66] The plaintiffs say that there is no prejudice because all relevant documents have been preserved. Mr. Freure provided his own documents; his medical records (including a report from a microbiologist, Dr. Tony Mazzulli, dated March 13, 2012) have been retrieved and provided to the defendants; a mould investigation report prepared in 2012 has been produced; and the defendants have preserved all records on which they might rely in a trial of this matter. The plaintiffs assert in their factum that the “claims both with respect to liability and damages will be proved by expert evidence based on the productions.”

[67] The plaintiffs further submit that the defendants can obtain their own expert reports. They add as follows, relying on Chiarelli, et al. v. Wiens (2000), 46 O.R. (3d) 780 (C.A.): “Any allegations of delay on the part of the Defendants with respect to not having obtained defence medicals sooner or in not having examined the Family Law Act Plaintiffs sooner is prejudice created by the Defendants and their failure to do something that they could or ought to reasonably have done.”

[68] The defendants assert that the prejudice flowing from the delay in this matter is significant. None of the discoveries has been completed and two of the discoveries cannot be completed given Mrs. Freure’s dementia and Mr. Freure’s death. Even before Mr. Freure’s death, it was apparent at his cross-examination for this motion that his memory was failing. The defendants observe that their own witnesses will likely have to struggle to recall important events given that those events occurred a decade ago. They note that it was the defendants who repeatedly asked for dates on which to continue the discoveries and that it was the plaintiffs who were completely unresponsive to those requests.

[69] The defendants resist the suggestion that this case can be proved by documents and experts alone. The recollections of those who observed the flooding, and those who engaged in the design, construction and remediation work will all be important. Moreover, Mr. Freure’s health before the flooding is a key to issues of causation and damages. Since the plaintiffs waited so long to retrieve Mr. Freure’s medical records, some relevant OHIP records that predate the flooding are now lost since OHIP preserves records for only seven years. This is to say nothing of Mr. and Mrs. Freure’s now lost recollections of the health issues Mr. Freure had before the flooding.

[70] Of course, Mr. Freure’s health since the flooding is also in issue. On this front, while the plaintiffs have produced medical records, Mr. Freure’s own evidence about his health is lost. Perhaps more importantly, Mr. Freure is no longer available to be examined by an expert of the defendants’ choosing (compare Vaccaro v. Unifund Insurance Company, 2011 ONSC 5318, supra, at para. 56, where despite delay the defendant could still engage in “meaningful investigations … including … additional assessments and meeting with the plaintiff herself”).

[71] I start my analysis of this issue with the observation that in cases of lengthy delay, as in this case, prejudice to the defendants from the delay may be presumed. The plaintiffs may rebut that presumption and, if they do, the onus shifts to the defendants to show actual prejudice that is caused by the delay. It is important to note, however, that although prejudice is usually a key consideration, even in the absence of prejudice, the defendants may still prevail when all the relevant factors are considered. (MDM Plastics Limited v. Vincor International Inc., 2015 ONCA 28, at paras. 24 – 27; Marche D’Alimentation Denis Theriault Ltée., et al. v. Giant Tiger Stores, 2007 ONCA 695, supra, at para. 35; Vaccaro v. Unifund Insurance Company, 2011 ONSC 5318, supra, at paras. 21 – 23; Chiarelli, et al. v. Wiens (2000), 46 O.R. (3d) 780 (C.A.), supra, at para. 16; Corporation of the City of Hamilton v. Svedas Koyanagi Architects Inc., et al., 2010 ONCA 887, supra, at para. 33; Jadid v. Toronto Transit Commission, et al., 2016 ONCA 936, supra, at para. 16). In any case, the longer the delay, the greater the likelihood that there will be prejudice: “The more time passes, the more difficult it is to defend the case. Memories fade and even if documents are not lost, their significance becomes shrouded” (1196158 Ont. Inc. v. 6274013 Canada Ltd., et al., 2012 ONCA 544, supra, at para. 43).

[72] I am not of the view that the plaintiffs have rebutted the presumption of prejudice in this case but, in any case, I am satisfied that the defendants have suffered actual prejudice. That prejudice takes the form of their inability to discover Mr. and Mrs. Freure (see Perera et al. v. Pierre, et al., supra, at paras. 17 – 18, 22), the loss of some OHIP records because the request for them was made late, and the inability of the defendants to have Mr. Freure submit to an examination with a defence expert. In H.B. Fuller Company v. Rogers Law Office, 2015 ONCA 173, supra, Justice Weiler wrote that prejudice can be presumed from the death of a witness (see para. 38; see also Perera et al. v. Pierre, et al., at paras. 17 - 18). In this case, though, Mr. Freure was not just a witness, he was himself a vessel of evidence.

[73] I do not agree that the defendants bear the responsibility for having failed to have a defence examination of Mr. Freure earlier. I say so for two reasons. First, it is difficult to criticize the defendants for failing to take action when the plaintiffs were largely dormant during the life of this suit. In 1196158 Ont. Inc. v. 6274013 Canada Ltd., et al., 2012 ONCA 544, supra, at para. 30, Justice Sharpe wrote as follows:

In this case, however, the defendants did nothing to resist any attempt by the plaintiff to advance the action. They cannot be accused of “lying in the weeds” and hoping to gain a tactical advantage. Failing any initiative on the part of the plaintiff, to require the defendants to spend time and money to prepare for a case that, from all appearances was dead on the vine would, in my view, be to impose and unnecessary and unreasonable burden.

[74] The circumstances here are similar. The defendants did not resist the progress of the action and they were not passive (H.B. Fuller Company v. Rogers Law Office, 2015 ONCA 173, supra, at para. 42). The defendants repeatedly contacted the plaintiffs who responded with near complete silence. They made a settlement offer then repeatedly enquired as to whether the plaintiffs had a response to the offer, then repeatedly tried to have the aborted discoveries revived while repeatedly warning the plaintiffs that the matter was growing stale.

[75] Second, and more importantly, the defendants can hardly be blamed for failing to have conducted an examination of Mr. Freure when (1) they had not even completed his examination for discovery; (2) the plaintiffs failed to co-operate in setting dates for the completion of the discoveries, and (3) the defendants did not receive Mr. Freure’s medical records from the plaintiffs until January 21, 2021, which was just a month before he died and was no longer available for examination.

[76] While I do not doubt that the preserved documents in this case are important, the pleadings make it clear that the memory of live witnesses would be important at any trial of this matter. The pleadings raise issues relating to the history of the property, whether it had ever flooded previously, whether it was properly maintained, personal observations of the flooding, conversations between Mr. Freure and various representatives of the defendants, actions taken or not taken by the defendants, whether the plaintiffs followed the instructions and recommendations of the defendants, whether the defendants’ employees were properly trained and competent, whether the defendants acted in a high-handed manner, whether the plaintiff’s interfered with the planning of the construction work by refusing entry to the property, Mr. Freure’s own assessments of his health in the months following the flooding, his claim of suffering from anxiety, torment, sleep disturbance and fatigue, whether the damages claimed are exaggerated, to provide a non-exhaustive list.

[77] The plaintiffs place weight on the documents, especially the mould investigation report prepared in 2012 and the report of Dr. Mazzulli. [2] While these are no doubt important documents, the latter depends on the former for some of its findings and the former recommends further intrusive investigation and itself warns that the passage of time may “affect the views, conclusions and recommendations” contained in the report.

[78] In my view, the plaintiffs have not displaced the presumption of prejudice and the defendants have established actual prejudice.

Conclusion

[79] I have found that each of the factors described in Reid v. Dow Corning Corp., (2001), 11 C.P.C. (5th) 80 (Ont. S.C.J.), supra, considered separately, weighs against the plaintiffs. I am satisfied that considering those factors together, contextually, leads to the same result.

[80] Even in the absence of evidence of actual prejudice, I would have dismissed this motion. As I have said, prejudice can be presumed in this case. But more to the point, this is the kind of case in which the need for finality in litigation outweighs the bias in favour of determining cases on their merits. In this respect, Sharpe J.A. wrote as follows in 1196158 Ont. Inc. v. 6274013 Canada Ltd., et al., 2012 ONCA 544, supra, at paras. 33 – 34:

[…] Consideration of actual prejudice focuses on the just determination of the dispute on its merits. The absence of actual prejudice does not automatically or inevitably trump the values of timeliness and efficiency. At some point, a party who has failed to respect the rules designed to ensure timely and efficient justice loses the right to have its dispute decided on the merits. If that were not the case, the rules and the time lines they impose would cease to have any meaning and any hope of ensuring timely and efficient justice would be seriously jeopardized.

[…] Where a party fails to prosecute an action in a timely fashion, the court is entitled to exercise the powers conferred by the rules to dismiss actions absent an adequate explanation for the delay [citations omitted].

[81] There are large swaths of delay in this case which are completely unexplained. The plaintiffs and their counsel appear to have had little or no interest in advancing the litigation. In addition, the lack of urgency which accompanied the prosecution of this motion is similarly unexplained. The total unexplained delay is now significant. I note that as a matter of common sense, the longer the delay, the better the explanation should be (Kara, et al. v. Arnold, et al., 2014 ONCA 871, at para. 17).

[82] For all these reasons the motion to set aside the registrar’s dismissal of the action is dismissed.

Litigation Guardian

[83] The motion to have Ms. Chapman appointed litigation guardian for Fae Freure is granted.

Costs

[84] If the parties cannot agree on costs, which I encourage them to do, the defendants may serve and file brief written submissions on costs within ten days of the release of this judgment. The plaintiff may serve and file a brief written response within three weeks of the date of the release of this judgment. The defendants’ written replies, if any, to be served and filed within one week of the plaintiffs’ response.

I.R. Smith, J.

Released: March 15, 2022

Footnotes:

[1] At one point counsel did write to request a copy of an expert opinion which Mr. Mollison mistakenly understood to be in the possession of counsel for Terracon. [2] I note that portions of the copy of Dr. Mazzulli’s report in the motion record before me are illegible.