COURT FILE NO.: CV-13-00059724-0000 DATE: 2022-05-10
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: THAMBWE v. PAWEN et al
BEFORE: Associate Justice M. Fortier
COUNSEL: Kibondo Kilongozi, for the Plaintiff/Moving Party Michael K.E. Thiele, for the Defendants/Responding Parties
HEARD: February 17, 2022
E N D O R S E M E N T
[1] The plaintiff brings this motion to set aside the order of the Registrar, dated February 5, 2019, dismissing the action for delay under Rule 48.14 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“the Rules”). The defendants oppose the motion.
[2] For the reasons set out below, the plaintiff’s motion is granted, and I allow the action to proceed.
Overview
[3] In his statement of claim issued on December 31, 2013, the plaintiff claims damages for breach of contract related to a lease agreement, punitive damages, and damages for “trover and detinue”. The statement of defence on behalf of the defendants Gupta Pawen and Cam York Apartments was delivered on August 11, 2014. The defendant Kelly Aldrich was noted in default on July 17, 2014.
[4] Although the action did not proceed beyond the pleadings stage, the procedural history of this action is somewhat convoluted.
[5] By the plaintiff’s own admission, the matter did not move forward from the issuance of the claim until June 2016, as his lawyer, Mr. Kilongozi, fell ill and subsequently underwent several eye surgeries. During this time, the defendants changed lawyers. In June 2016, they appointed Michael Thiele as their new counsel.
[6] According to the plaintiff, steps were taken since 2016 to move the matter forward. In particular, the plaintiff attempted to schedule examinations for discovery, without success, as the defendants refused to schedule discoveries until the plaintiff delivered a sworn affidavit of documents. A case conference was held on March 28, 2017 to deal with procedural issues. A further case conference scheduled for May 8, 2017 was withdrawn at the request of counsel for the defendants; the parties were trying to agree on a timetable without the need for a case conference. A third case conference was scheduled at the request of counsel for the plaintiff to establish a timetable for the proceeding. The case conference was heard by Justice Corthorn on October 31, 2018 and a timetable was set dealing with the exchange of sworn affidavits of documents, and the timelines for motions for documentary discovery and examinations for discovery. Examinations for discovery were to be completed by August 31, 2019.
[7] Although neither party met the deadline established by Justice Corthorn for the delivery of sworn affidavits of documents, counsel for the plaintiff nevertheless made several attempts in January 2019 to schedule examinations for discovery. As his requests went unanswered, Mr. Kilongozi contacted Mr. Thiele’s office on February 11, 2019, and was advised by Mr. Thiele’s assistant that the delay was caused by Mr. Thiele’s inability to reach his client. In the interim, unbeknownst to the plaintiff, the action had been administratively dismissed on February 5, 2019. It is not known whether counsel for the defendants was aware of the dismissal at that time. According to counsel for the plaintiff, he only discovered that the matter had been dismissed when he contacted the court office in April 2019 to schedule a case conference to move the matter forward.
[8] Counsel for the plaintiff first moved in October 2019 to schedule a motion to set aside the dismissal order. What followed was a series of five motions scheduled by the plaintiff to be heard between January 14, 2020, and February 17, 2022, to set aside the order. The hearing did not take place on the first four dates for a variety of reasons, ranging from the unavailability of counsel, a virus that corrupted counsel for the plaintiff’s computer, the loss or lack of a confirmation form for the motion, and the alleged loss of the motion material by court staff.
[9] According to the defendants, the plaintiff did not actively pursue the action. It is the defendants’ evidence that at the time of the dismissal of the action, they were under the impression that the plaintiff had abandoned the action. Moreover, the defendants contend that the plaintiff did not seek to set aside the dismissal order until one year after the action was dismissed.
[10] The defendants contend that they were always of the view that this action had no prospect of success and that they intended to bring a motion for summary judgment. As stated by Mr. Thiele to Mr. Kilongozi in an email dated June 19, 2017:
Expecting my client to proceed to Examinations for Discovery against your client − without any documents to ask questions about − is a pointless exercise that we will not engage in.
I hereby request that your client provide a further and better affidavit of documents. Without such an affidavit of documents the only course that I will pursue for my client is a summary judgment motion to dismiss the action with costs and I suppose, in the alternative, an Order for a further and better affidavit of documents. With the greatest of respect, I do not see the point of attending oral examinations for discovery if the only evidence in this action is going to be "oral". Such "oral" evidence is incapable of supporting the claim asserted and a dismissal with costs is a foregone conclusion absent supporting documentary evidence in support of the claims.
The Law and Analysis
[11] Rule 48.14 of the Rules sets out the statutory framework for the Registrar’s dismissal of an action for delay, and provides 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.
- The action was struck off a trial list and has not been restored to a trial list or otherwise terminated by any means by the second anniversary of being struck off.
[12] This action was administratively dismissed on February 5, 2019, because it had not been set down for trial within five years after the commencement date.
[13] There are four relevant factors to consider on a motion to set aside a dismissal order of the Registrar, as set out in Reid v. Dow Corning Corp. (2001), 11 C.P.C. (5th) 80, (Ont. Div. Ct.), at para. 41. They are:
i- Explanation of the litigation delay: The plaintiff must explain the delay so as to satisfy the court that steps were being taken to advance the litigation towards trial, or, if such steps were not taken, to explain why. A deliberate decision not to advance the litigation will usually be fatal.
ii- Inadvertence in missing the deadline: The plaintiff must lead evidence to explain that they always intended to set the action down within the time limit, but failed to do so out of inadvertence.
iii- Promptly moving to set aside the order: The plaintiff must demonstrate that the motion was brought promptly after the order came to the party’s attention.
iv- No prejudice to the defendant: The plaintiff must convince the court that the defendants have not demonstrated any significant prejudice in presenting their case at trial as a result of the plaintiff’s delay or as a result of steps taken following the dismissal of the action. For any prejudice to be relevant, it must be significant and arise out of the delay.
[14] The Court of Appeal has held, in several decisions, that no one factor is necessarily decisive of the issue and a plaintiff is not required to satisfy each of the four factors set out in Reid. Rather, a “contextual” approach is required where the court weighs all relevant considerations to determine the result that is just. (Scaini v. Prochnicki, 2007 ONCA 63, 85 O.R. (3d) 179, at paras. 21-28; Habib v. Mucaj, 2012 ONCA 880, 31 C.P.C. (7th) 1, at para. 6.)
i- Explanation of the litigation delay
[15] Although this action did not progress beyond the pleadings stage, I am satisfied, based on the evidence before me, that there is an adequate explanation for the delay in the progress in the litigation and that steps were taken by the plaintiff to advance the litigation toward trial. As outlined above, the plaintiff had sought to schedule examinations for discovery in 2016, 2017, and again in January 2019, without success. The defendants’ evidence is that they remained clear in their position that they would not move forward with the litigation and that the action should be dismissed. As a result, it became necessary for the plaintiff to seek the assistance of the court at case conferences to establish timetables to move the matter forward.
[16] Whilst there was a delay in moving the litigation forward until 2016, I accept the explanation that this was because counsel for the plaintiff was seriously ill and had to undergo several surgeries. The plaintiff was aware of the situation, and it does not appear that the defendants took issue with the delay. Furthermore, according to the defendants’ own evidence on the motion, the defence did not provide its position on the issues in the action until June 19, 2017.
ii- Inadvertence in missing the deadline
[17] In my view, there is sufficient evidence that the plaintiff missed the deadline for setting the matter down for trial through inadvertence. Although there is evidence that counsel for the plaintiff thought that there had been an extension of the deadline at the case conference of October 31, 2018, no such extension had been granted. However, it is noteworthy that pursuant to the timetable established by Justice Corthorn, examinations for discovery were to be completed by August 31, 2019, some six months after the deadline would have expired for setting the matter down for trial. Indeed, counsel for the plaintiff sought to schedule these discoveries in January and February 2019. Moreover, according to the evidence filed, counsel for the plaintiff was unaware that the matter had been administratively dismissed until he sought to schedule a case conference in April 2019, in an attempt, once again, to move the matter forward. Accordingly, I am satisfied that the plaintiff has established inadvertence in failing to set the action down for trial.
iii- Promptly moving to set aside the order
[18] Having discovered in April 2019 that the action had been administratively dismissed, the plaintiff took steps six months later, in October 2019, to schedule a motion to have the order of the Registrar set aside. As outlined in paragraph 8 above, a series of motions were scheduled but did not proceed to a hearing for a variety of reasons, some of which may have been as a result of missteps by counsel for the plaintiff. It is unfortunate that this motion was not heard until February 2022; however, in my view, the plaintiff moved with sufficient timeliness in the first instance to have the order set aside. As for the possible missteps of counsel resulting in the motion not being heard until February 2022, the Court of Appeal in H.B. Fuller Co. v. Rogers (Rogers Law Office), 2015 ONCA 173, 330 O.A.C. 378, at para. 27 indicated the court’s preference for deciding matters on their merits where the delay is the result of an error by counsel.
[27] The court’s preference for deciding matters on their merits is all the more pronounced where delay results from an error committed by counsel. As the court stated in Habib, at para. 7, “[O]n a motion to set aside a dismissal order, the court should be concerned primarily with the rights of the litigants, not with the conduct of their counsel.” In Marché, Sharpe J.A. stated, at para. 28, “The law will not ordinarily allow an innocent client to suffer the irrevocable loss of the right to proceed by reason of the inadvertence of his or her solicitor” (citations omitted).
iv- Whether there is prejudice to the Defendant
[19] The Court of Appeal in Wellwood v. Ontario (Provincial Police), 2010 ONCA 386, 102 O.R. (3d) 555, at para. 60 held that on a motion to set aside a dismissal order, there is a presumption of prejudice arising from the passage of a limitation period that can be rebutted by the plaintiff. In the event that the plaintiff rebuts the presumption, the onus shifts to the defendant to establish actual prejudice.
[20] In Finlay v. Van Paassen, 2010 ONCA 204, 101 O.R. (3d) 390, Laskin J.A., speaking for the court, held that the issue of prejudice is a key consideration on a motion to set aside a dismissal order.
[21] Given that the alleged incidents took place almost ten years ago, I find that the “presumptive prejudice” arises on the facts of this case.
[22] Little was advanced by the plaintiff to rebut the presumption of prejudice, aside from an assertion that the defendants would not suffer prejudice if the action were reinstated, because the action is based in contract law and the defendants had multiple opportunities to advance the action.
[23] The defendants on the other hand, argue that the reinstatement of the action would be prejudicial to them as it has no reasonable prospect of success. According to the defendants, the only thing that reinstatement would lead to is a summary judgment motion to dismiss the action.
[24] According to the defendants, because of the lack of evidence, they do not know the case to meet. As stated in paragraph 29 of the affidavit filed on behalf of the defendants:
The alleged incidents in this matter occurred in 2012 – 2013. If further documents are produced by the plaintiff not previously disclosed, the defendant will almost certainly be unable to mount a defence given the passage of time and the unavailability of evidence from over nine years ago. One of the defendants, Kelly Aldrich, can no longer be located.
[25] Although I recognize that the issue of prejudice is a key consideration on a motion to set aside a dismissal order, I am also cognizant of both the “contextual” approach that is favoured, in which the court weighs all relevant considerations to determine the result that is just (Scaini paras 21-23), and the court’s preference that matters be resolved on their merits. As stated by Sharpe J.A. in Marche D’Alimentation Denis Thériault Ltée v. Giant Tire Stores Limited., 2007 ONCA 695, 87 O.R. (3d) 660, at para. 34:
[34] The fourth step in the Reid test focuses on prejudice to the defendant and the goal of having disputes resolved on their merits. The Rules of Civil Procedure must be interpreted in a manner that recognizes that expeditious justice is only one value to be weighed against others and that delay may be excused where necessary to ensure complete justice. As Rule 1.04(1) states, the rules are to be "liberally construed to secure the just, most expeditious and least expensive determination or every civil proceeding on its merits" [Emphasis added]. Expeditious justice must be balanced with the public interest in having disputes determined on their merits. Where, despite the delay, the defendant would not be unfairly prejudiced should the matter proceed for resolution on the merits, according to the plaintiff an indulgence is generally favoured.
[26] In my view, the explanation of the litigation delay, the inadvertence of counsel in missing the deadline for setting the matter down for trial, and the timeliness in which the plaintiff moved to set aside the Registrar’s order are factors that favour the plaintiff. In addition, the plaintiff’s previous efforts over the years to establish a timetable to move the matter forward were met with the defendants’ resistance and assertions that they would not move forward with the litigation and that the action should be dismissed.
[27] In taking all the factors into consideration and balancing the respective interests of the parties, in my view, it is just in the circumstances of this case to set aside the Registrar’s dismissal order and allow the matter to proceed for resolution on the merits.
Costs
[28] Section 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43 provides that costs are in the discretion of the court. In addition, the case law sets out that a successful party is presumed to be entitled to costs in an amount that is reasonable, having regard to the factors set out in Rule 57.01 of the Rules. These factors include the principle of indemnity, the reasonable expectations of the parties, the apportionment of liability, and the conduct of any party that tended to lengthen unnecessarily the duration of the proceeding, among others.
[29] In exercising my discretion with respect to costs, I am mindful that the fixing of costs is not simply a mechanical exercise; the objective is to fix an amount that is fair, reasonable and proportional in all of the circumstances, (Boucher v. Public Accountants Council (Ontario) (2004), 71 O.R. (3d) 291 (C.A.), at para. 26.).
[30] I find that the plaintiff, the successful party on the motion, is entitled to costs.
[31] According to the plaintiff’s bill of costs, his costs of the motion on a partial indemnity basis are in the sum of $7,025.32, including disbursements and HST. On the other hand, the defendants’ costs on a partial indemnity basis are in the sum of $3,658.15, inclusive of HST and disbursements.
[32] In reviewing the plaintiff’s bill of costs, I note that there are fees charged for work done related to the previous motions to set aside the order of the Registrar that did not take place and ought not be claimed. In my view, the plaintiff’s costs are excessive and not within the defendants’ reasonable expectations.
[33] For the reasons outlined above, and in exercising my discretion with respect to costs, I find that costs to the plaintiff in the sum of $3,000 inclusive of disbursements and HST would be fair, reasonable, and proportional in the circumstances.
Disposition
[34] For the above reasons, the plaintiff’s motion is granted. The Registrar’s dismissal order is set aside.
[35] Time for setting the action down is hereby extended to December 30, 2022.
[36] Within 15 days of the date of this order, the parties are to schedule a case conference before an associate judge to establish a timetable for the proceeding.
[37] The defendants shall pay to the plaintiff costs in the sum of $3,000, inclusive of disbursements and HST, within 30 days of the date of this order.
Associate Justice Fortier DATE: May 10, 2022