ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
SHANNON MURRAY
Plaintiff
- and -
SERGEANT ROBERT GEICK and GREATER SUDBURY POLICE SERVICES BOARD
Defendants
Counsel: Sabrina Lucenti, for the Plaintiff Grant W. Ferguson, for the Defendant, Greater Sudbury Police Services Board No one appearing for the Defendant, Robert Geick
HEARD: November 26, 2021 at Sudbury, Ontario
BEFORE: Madam Justice B. R. Warkentin, R.S.J.
Reasons on Motion
Background of the Litigation
1The plaintiff seeks to set aside the administrative dismissal of the action and the setting of a timetable to move this matter forward.
2The action arises from events the plaintiff alleges occurred during her employment as a police constable with the Greater Sudbury Police Service (the “Sudbury police”) between approximately 1995 and 2011.
3The allegations by the plaintiff against the defendant, Robert Geick (“Geick”) included sexual assault, criminal harassment, and other offences. Geick was a sergeant with the Sudbury police during the times the alleged offences occurred. Geick was charged in 2007. In 2011 he pled guilty to assault and obstruction of justice and was put on probation. Geick later resigned from the Sudbury police.
4This action against the Greater Sudbury Police Services Board (the “Board”) and Geick was commenced in November 2012. The plaintiff alleges that the defendant the Board is liable damages she suffered because of Geick’s actions.
5On March 21, 2018, the action was administratively dismissed by the local registrar in the Sudbury Superior Court of Justice (the “Dismissal Order”) pursuant to Rule 48.14(1) of the Rules of Civil Procedure, RRO 1990, Reg. 194. The plaintiff seeks an order setting aside the Dismissal Order and establishing a timetable for completion of the remaining steps in the litigation. (Rule 37.14)
6The Board opposes this motion on the basis that the Board would suffer prejudice if the Dismissal Order is set aside due to the loss of documentation and witness information that the Board claims is serious, permanent and irreplaceable.
7Geick’s only participation in this action has been to file a statement of defence and later a Notice of Intent to Act in Person.
8For reasons that follow, I allow the plaintiff’s motion and set aside the administrative dismissal.
Summary of the Litigation
9A history of this litigation is relevant with respect to the positions of the parties.
Pleadings
10The defendants were served with the statement of claim shortly after the claim was issued in November 2012. They were initially represented by the same counsel, Kathleen Urdahl, who sought an indulgence in preparing a statement of defence. The plaintiff’s original lawyer was unable to continue and was replaced by Craig Ticalo. Mr. Ticalo granted the indulgence until May 2013 and indicated that he would be amending his statement of claim as a result of claims of ongoing harassment of the plaintiff by Geick.
11Geick then retained his own lawyer, Richard Guy. Ms. Urdahl and Mr. Guy consented to the amended statement of claim and eventually served their statements of defence. The statement of defence on behalf of Geick was served on October 30, 2013, almost one year after the statement of claim had been issued. The statement of defence and cross-claim of the Board was served on March 28, 2014 together with a jury notice that was served on April 1, 2014, some 16.5 months after the statement of claim had been served.
12On July 29, 2014, Geick served a Notice of Intent to Act in Person.
Freedom of Information Request
13During this same period, the plaintiff on her own initiative, filed a Freedom of Information (“FOI”) request to the Board, seeking copies of reports, officers’ notes and statements involving Geick and other Sudbury police officers. Notwithstanding that the Board identified 38 pages of records relating to the plaintiff’s FOI request, on December 30, 2014, they denied her access to the records in their entirety. The basis for denying the plaintiff’s claim was that the documents were protected by litigation privilege and solicitor and client privilege because the plaintiff had brought this action. The documents sought were alleged to have originated after the statement of claim had been issued.
14The plaintiff appealed and on November 30, 2016, the Information and Privacy Commissioner through the adjudication process, ordered the Board to produce all previously withheld and non-exempt portions of the records sought by the plaintiff no later than January 9, 2017. The Board complied and the material was forwarded by the plaintiff to her counsel.
Settlement Discussions and Examinations for Discovery
15In February 2015, the Board retained new counsel, Grant Ferguson. Mr. Ticalo informed Mr. Ferguson that the plaintiff was seeking documentation from the Board through a FOI request.
16In January 2016 Mr. Ferguson wrote to Mr. Ticalo and Geick to set dates for examinations for discovery. Mr. Ferguson proposed dates in the late spring or summer of 2017, approximately 1.5 years later. The parties also discussed updating their affidavits of documents.
17In December 2016 the parties initially explored a resolution, however, no agreement was reached. Examinations for discovery of the plaintiff and Geick were eventually scheduled for May 29 and 31, 2018. In February 2018 settlement negotiations resumed and Mr. Ticalo asked for an answer regarding a settlement proposal from the plaintiff no later than April 2, 2018.
Administrative Dismissal
18The action was administratively dismissed by the local registrar on March 21, 2018.
19At the request of Mr. Ticalo, the Board consented to setting aside the administrative dismissal and asked Mr. Ticalo to serve them with motion materials seeking it be set aside. At the same time, the parties agreed to proceed with examinations for discovery. The May dates were abandoned because Mr. Ferguson was unable to proceed on those dates. The discoveries were rescheduled on consent to July 30 and 31, 2018 and the appropriate Notices were served on all parties.
20The plaintiff was examined for discovery on July 30, 2018. Geick did not attend the discoveries and a Certificate of Non-Attendance was issued. The Board was not examined because the plaintiff had not filed an affidavit of documents. Based upon undertakings provided in her discovery, the plaintiff signed various authorizations for production of medical and other records.
21On September 18, 2018 draft motion materials to set aside the administrative dismissal were provided to Mr. Ferguson. During this same period and into early 2019, Mr. Ticalo was following up regarding the documents and records the plaintiff had agreed to produce and sought dates from Mr. Ferguson for examinations for discovery of the Board representative. Mr. Ticalo also provided Mr. Ferguson with the plaintiff’s authorizations so the Board could obtain some of the documentation directly.
22In early March 2019, Mr. Ticalo resumed his preparation of the motion materials to set aside the administrative dismissal, however, on March 15, 2019 he was advised by correspondence from Mr. Ferguson that the Board had withdrawn its consent to that motion.
Failure by Mr. Ticalo to Inform the Plaintiff
23Mr. Ticalo did not inform the plaintiff that the action had been administratively dismissed or that the Board was refusing to consent to it being set aside, notwithstanding they had met in April 2019 to discuss the litigation.
24After the meeting between the plaintiff and Mr. Ticalo in April 2019, the plaintiff took it upon herself to obtain copies of the documents she had undertaken to produce.
25On June 13, 2019, the plaintiff learned from courthouse staff that her action had been administratively dismissed, more than a year after the Dismissal Order had been issued. She also learned that Mr. Ticalo had never filed a Notice of Change of Solicitor. Mr. Ticalo reported himself to Law Pro in December 2019.
26In January 2020 the plaintiff brought this motion to set aside the Dismissal Order and filed a Notice of Intention to Act in Person. The hearing of the motion was then delayed due to the onset of the pandemic.
Setting Aside an Administrative Dismissal Order
27Counsel agreed that the court must consider four factors on a motion to set aside a Dismissal Order. These are:
a) Provide an adequate explanation for the litigation delay;
b) Lead evidence to establish inadvertence in missing the deadline;
c) Demonstrate that the motion was brought promptly; and
d) Establish that there was no significant prejudice to the defendant.
(Reid v. Dow Corning Corp., [2001] O.J. No 2365 at paras. 40-41; rev’d on other grounds, [2002] O.J. 3414 (Div. Ct.)
28Other authorities have applied a two-part test that requires the plaintiff to provide an acceptable explanation for the delay and to show that the defendant would suffer no non-compensable prejudice if the action were allowed to proceed. (Kara v. Arnold, 2014 ONCA 871, [2014] O.J. No. 5818, at para. 8.)
29More recent decisions from the Ontario Court of Appeal have confirmed that “Neither the four-factor approach nor the two-part test provides an exhaustive list of considerations. Regardless of which is followed, all of the circumstances of the case must be considered in order to arrive at a just result. (HB Fuller Company v. Rogers (Rogers Law Office), 2015 ONCA 173, at paras. 23).
30Counsel for the Board submitted that the plaintiff is unable to satisfy any of the four factors regarding the delay. In support of their position, the Board attributes the following conduct to the plaintiff or her counsel:
a) Factor 1- Reasonable Explanation for Litigation Delay: The plaintiff has failed to provide documentation of any kind; the examinations for discovery of the Board was cancelled because there was no plaintiff affidavit of documents; plaintiff counsel did not bring the motion to set aside the Dismissal Order in a timely fashion and there is no reasonable explanation for the delay after the plaintiff learned of the Dismissal Order in June 2019 until she brought this motion to set it aside in January 2020. Counsel for the Board also argued that the plaintiff should have known there were problems with the pace of the litigation and been more proactive in pushing her lawyer to move the matter forward at a faster pace. The plaintiff also added to the delay by pursing the FOI request.
b) Factor 2 – Intention to Prosecute the Action and Inadvertence in Missing the Deadline: Counsel for the Board submitted that there was a “massive” failure by the plaintiff’s counsel to prosecute this case leading to the Dismissal Order on March 21, 2018. The Board relies on the essentially the same submissions as in Factor 1 regarding this factor with the added submission that counsel’s inadvertence or alleged incompetence is an insufficient explanation for the plaintiff’s own failure to obtain productions that she knew were required.
c) Factor 3 – The Motion to Restore is Brought Forthwith: Without accepting the fact that the plaintiff was unaware of both the Dismissal Order and her lawyer’s failure to move to set it aside, Counsel for the Board argued that the plaintiff did not take reasonable steps to move to set aside the Dismissal Order in a timely fashion after she learned of the Order in June 2019. Counsel for the Board argued that the plaintiff, with her background in policing, should have been more diligent in pushing her case forward and making inquiries of why it was taking so long.
d) Factor 4 – There is No Prejudice to the Defendant: The Board claims there is actual prejudice to them regarding their ability to defend this action because of the ongoing delay. They claim that records have now been lost that can no longer document the elements of the allegations made against Geick and the Board. They also allege that the length of the delay, particularly because some of the claims date back to 1996, has resulted in fading memories of prospective witnesses and those who may have been able to provide evidence. Many of those possible witnesses have since retired or died. Some of the witnesses proposed by the plaintiff were only made known to the Board in 2018 during her examinations for discovery, after the Dismissal Order. It would now be impossible for the defendants to contact or investigate these individuals. The Board also argued that there is a need for finality to this litigation that trumps the plaintiff’s request to have the Dismissal Order set aside.
31The position of the Board in its submissions on all four factors, fails to mention the defendant’s part in contributing to the delays. The submissions also neglect to address the fact that the defendants consented to setting aside the Dismissal Order and carried on with the litigation, including examining the plaintiff for discovery.
Analysis re: Factors 1 and 2
32While it is not the defendant’s obligation to move the action forward, the defendants do have a responsibility to play their part in ensuring there is not undue litigation delay. (Carioca’s Import & Export Inc. v. Canadian Pacific Railway Limited, 2015 ONCA 592, at para. 53 and HB Fuller Company v. Rogers (Rogers Law Office), 2015 ONCA 173, at para. 23)
33The evidence on behalf of the Board consisted of an affidavit from a law clerk in counsel for the Board’s law firm and the submissions of counsel for the Board alleged the entirety of the delay was attributable to the plaintiff and her lawyer’s conduct. This is not supported by the way the litigation unfolded.
34The litigation proceeded at a pace that was acceptable to the Board, until the Board revoked its consent to set aside the Dismissal Order in March 2019. Had plaintiff’s counsel prepared the motion materials regarding setting aside the Dismissal Order in a timely fashion, the allegations regarding undue delay would not have arisen, the Dismissal Order would have been set aside on consent and the action would have proceeded.
35The Board’s allegation that the plaintiff is solely responsible for the delay and that there has been a complete lack of prosecution is not supported by the evidence. It is not the defendants who must move the matter forward, however, they cannot claim the plaintiff failed to do so when they contributed to the delay by seeking the plaintiff’s indulgence to delay serving their statements of defence for well over a year after the claim was started. The plaintiff also consented to defence counsel for the Board’s litigation schedule when scheduling examinations for discovery. These were not conducted until the summer of 2018 on consent of all parties notwithstanding initial discussions regarding scheduling the discoveries began in 2016. On January 3, 2016, counsel for the Board advised plaintiff’s counsel that the earliest he was available to conduct examinations for discovery was “mid to late summer of 2017”. On the consent of all parties, discoveries were finally scheduled in July 2018, months after the Dismissal Order.
36While plaintiff’s counsel’s actions contributed to the delay prior to the Dismissal Order, there is no evidence that there was an intention by the plaintiff or her counsel not to continue the litigation. The plaintiff took it upon herself to obtain documentation she believed was important for her case by making an FOI request from the Board. Counsel for the Board submitted this was an unnecessary delay because it was a separate proceeding when the documents sought in the FOI could have been pursued through the civil action.
37This is a curious submission by the Board given their rigorous opposition to the FOI request. Counsel for the Board in this action, while not the lawyer in the FOI proceeding, was aware of the FOI request and took no steps to produce the material requested in the FOI proceeding in this litigation. The Board was content to let the FOI request play out. I do not find this was unnecessary plaintiff delay in these circumstances.
38Plaintiff’s counsel should have moved immediately upon receipt of the Dismissal Order to have it set aside based upon the consent of the parties. Plaintiff’s counsel should also have informed the plaintiff that this had occurred. Notwithstanding these failures, plaintiff’s counsel did obtain the consent of the Board to have the Dismissal Order set aside and the parties continued the litigation by starting examinations for discovery following which plaintiff’s counsel moved forward with obtaining the productions sought through the plaintiff’s undertakings through the fall and early winter of 2018.
39The Board’s argument that the plaintiff herself should have taken steps to obtain productions and ensured the case was moving forward is unreasonable on the evidence before the court. She did take steps to obtain information that was solely in the possession of the Board through her FOI request. In April 2019, after meeting with her lawyer and learning that the records she had authorized her lawyer, and counsel for the Board to obtain, had not been produced, she then obtained most of those records herself.
40I therefore find that the delay in this proceeding prior to the Dismissal Order was reasonable and that the failure by plaintiff’s counsel in missing the deadline that resulted in the Dismissal Order was by inadvertence. I also find that plaintiff’s counsel was entitled to rely on the consent of counsel for the Board.
41The evidence clearly demonstrates that it was always the plaintiff’s intention to prosecute this action and that she was entitled to rely on her own lawyer to move the case forward, notwithstanding her lawyer failed to do so in many respects.
42I find that Factors 1 and 2 have been satisfied by the plaintiff in her explanation for the delay.
Factor 3
43I do not find the delay between when the plaintiff learned of the Dismissal Order and her motion to have the Order set aside to be unreasonable. Until learning of the Dismissal Order in June 2019 from court staff, the plaintiff believed the action was proceeding. Her lawyer failed her by not advising her of the Order when it occurred or that the Board had withdrawn their consent to setting it aside. He led her to believe the action was progressing.
44The plaintiff’s lawyer did not assist the plaintiff after she learned of the Dismissal Order, leaving it up to her to bring this motion on her own. In these circumstances and considering all the circumstances already discussed, I do not find that the 7 months between the plaintiff learning of the Dismissal Order and the motion to set it aside as unreasonable. Therefore, Factor 3 has been satisfied by the plaintiff.
Factor 4
45The plaintiff has the onus of proving that revival of the action would not prejudice the defendant’s ability to defend the action. In assessing prejudice, the court will consider whether the delay has caused significant actual prejudice to the defendants and whether the interest in finality must trump the plaintiff’s pleas for an indulgence in setting aside the Dismissal Order. (Prescott v Barbon, (2018 ONCA 504) at paras. 34-37)
46I do not find that the Board has established significant actual prejudice or that the interest in finality must trump the plaintiff’s plea to have the Dismissal Order set aside.
47I accept counsel for the plaintiff’s argument that the defendants’ ability to defend this action has not been compromised by the delay in these proceedings for the following reasons:
a) all relevant documents have been obtained and preserved;
b) transcripts of the plaintiff’s examination for discovery are available;
c) the plaintiff has adduced uncontested evidence that all of the relevant parties and material witnesses are available to testify at trial; and
d) the defendants had timely notice of the claim and every opportunity to investigate and preserve relevant evidence.
48The only evidence proffered by the Board in this motion is from its counsel’s law clerk. There is no direct evidence from either the Board or Geick.
49The Board’s argument that it is prejudiced by the lack of productions by the plaintiff, including providing answers to undertakings does not meet the test of significant actual prejudice because most of the undertakings relate to the quantification of the plaintiff’s damages. If the plaintiff is unable to substantiate her claims, the plaintiff will not succeed at trial. This is not prejudicial to the defendants.
50The fact that the Board consented to the setting aside of the Dismissal Order and continue to examinations for discovery also militates in favour of the plaintiff having established no significant actual prejudice to the defendants.
51I agree that at some point the interest in finality must trump the plaintiff’s plea for an indulgence. However, that interest has not been met on the facts that were present before me in this motion.
52The fact that plaintiff’s counsel was operating on the belief that consent to set aside the Dismissal Order was in place, and when considering all of the circumstances of the case, the just result is to set aside the Dismissal Order.
53The plaintiff’s motion is therefore granted and the Dismissal Order is set aside. The parties shall establish a litigation schedule and if they are unable to agree on that schedule they may return before me.
54Costs of this motion are granted to the plaintiff. If the parties are unable to reach an agreement on costs they shall provide written submissions to my attention on or before May 31, 2022. The submissions, excluding Bills of Costs shall not exceed four pages.
Madam Justice B. R. Warkentin, R.S.J.
Released: April 28, 2022
COURT FILE NO.: C-2255-12 DATE: 2022-04-28
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
Shannon Murray
Plaintiff
- and –
Sergeant Robert Geint and Greater Sudbury Police Services Board
Defendant
REASONS ON MOTION
B. Warkentin R.S.J.
Released: April 28, 2022