Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Michael Heslop, Plaintiff
AND:
Constable D. Flynn, Constable Boyd, Detective Sergeant Handfield, Sergeant Griffiths, and The Waterloo Regional Police Services Board, Defendants
BEFORE: MacNeil J.
COUNSEL: A. Huff – Lawyer for the Plaintiff C. Clemmer – Lawyer for the Defendants
HEARD: April 12, 2022 (via Zoom videoconference)
REASONS FOR DECISION
Overview
1The Plaintiff brings this motion seeking an order for an extension of time to set the within action down for trial and a timetable for remaining pre-trial steps. The Defendants oppose the motion.
2The Plaintiff, Michael Heslop (“the Plaintiff” or “Mr. Heslop”), and two of his former lawyers filed affidavits in support of the motion. There were no cross-examinations on these affidavits.
3The Defendants filed detailed responding affidavits; no cross-examinations were held on these.
Background
4The within action relates to the Plaintiff’s claim for damages for alleged unlawful arrest, forcible confinement and assault by the defendant officers, arising out a confrontation that occurred on September 15, 2013. Mr. Heslop alleges that he suffered physical injury as a result of the incident. The statement of claim was issued on September 10, 2015.
5On November 25, 2015, the Defendants delivered their statement of defence.
6By correspondence dated February 10 and July 27, 2016, then counsel for the Plaintiff requested the Defendants’ affidavit of documents.
7On July 27, 2016, Plaintiff’s counsel also wrote to four non-parties seeking the provision of information relating to the Plaintiff’s claim, including medical records.
8By letter dated October 4, 2016, the Defendants delivered an unsworn affidavit of documents and Schedule “A” productions and requested the Plaintiff’s affidavit of documents and productions.
9In December 2016, the original lawyer with carriage of the Plaintiff’s action retired and the file was transferred to another lawyer within the same law firm. The second lawyer met with Mr. Heslop in mid-March 2017, and reached out to Mr. Heslop’s criminal lawyer to obtain information regarding the criminal charges laid after his arrest. Some time then elapsed but, on May 9, 2018, the Plaintiff’s affidavit of documents was delivered. Subsequent to this, in September 2018, the Plaintiff’s second lawyer left the firm and, as a result, Mr. Heslop’s file was transferred to another lawyer at the same law firm.
10At the time of transfer to them, the third lawyer had recently returned to work and was dealing with a very heavy workload and other issues. There was also a “mix-up with the placement” of the Plaintiff’s file following the second lawyer’s departure. As a result of all these factors, the Plaintiff’s file was not reviewed by the third lawyer until early 2020. Mr. Heslop contacted the law firm on February 28, 2020, requesting an update on his file.
11On March 17, 2020, then counsel for the Plaintiff prepared a draft letter to the Defendants’ counsel seeking to schedule examinations for discovery and proposing dates in August 2020. However, through inadvertence, the letter was not sent. This was largely due to the abrupt closure of the law office because of the COVID-19 pandemic. Counsel for the Plaintiff states that they exchanged voicemail messages with Mr. Heslop and then spoke with him over the phone about his file on May 26, 2020. Counsel states that, in or around June 2020, they left a voicemail message for the Defendants’ then lawyer.
12On July 13, 2020, current counsel for the Defendants served a notice of change of lawyer indicating that he was now the lawyer of record (this was an internal change in legal representation as the law firm remained the same). Defendants’ counsel then wrote to Plaintiff’s counsel by letters dated July 16, July 30, and August 13, 2020, asking for confirmation whether there was any insurance available to respond in the action.
13On August 14, 2020, counsel for the Plaintiff wrote to Defendants’ counsel proposing a draft timetable order and dates for examinations for discovery. Counsel for the Defendants replied by letter dated August 27, 2020, asking for an explanation for the five-year delay in advancing the action. That explanation was subsequently provided by way of correspondence from counsel for the Plaintiff, dated September 14, 2020.
14On September 28, 2020, counsel for the Plaintiff wrote again to counsel for the Defendants proposing dates for examinations for discovery. Counsel for the Defendants responded, on September 30, 2020, that they were “in the midst of an investigation” into whether the Plaintiff’s delay has caused actual prejudice to his client. He stated that he would be in touch as soon as he was able. Further letters were sent between counsel on October 13 and 14 and November 3 and 4, 2020. On November 4, 2020, counsel for the Defendants wrote to Plaintiff’s counsel that he was continuing his investigation. Around this time, counsel for the Plaintiff notified LAWPRO, which then retained counsel to assist with the matter.
15In late November 2020, the Plaintiff’s file was transferred to yet another lawyer at the same law firm. The fourth lawyer sent a letter, dated December 15, 2020, to counsel for the Defendants advising that they had assumed carriage and then, on January 6, 2021, sent correspondence seeking to schedule discoveries and set a timetable. The Defendants’ lawyer responded on January 8, 2021, advising on the outcome of his client’s prejudice investigation, that his client was not willing to schedule discoveries, and that he had received instructions to bring a motion in light of the prejudice. Counsel for the Plaintiff then served a notice of examination of the defendant officers for January 29, 2021.
16On January 22, 2021, LAWPRO counsel served a notice of motion for the within status hearing. Counsel for the Defendants responded, on January 25, 2021, advising that he had spent time preparing motion material to have the delay and prejudice issues determined by the court and that he anticipated serving a cross-motion to be argued at the same time as the Plaintiff’s status hearing. He took the position that it was improper for the Plaintiff to force examinations for discovery when the Defendants believed that continuing with the litigation was “unjust” given that the Defendants “are simply not able to answer this litigation any longer because of the Plaintiff’s inordinate delay”.
17The Defendants subsequently brought a cross-motion seeking, among other things, summary judgment. It has since been adjourned but remains pending.
18Taking into account the six-month suspension of court timelines due to the COVID-19 pandemic, for the purposes of r. 48.14(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“the Rules”), the set-down date for a trial of this action was March 10, 2021.
The Law
19Rule 48.14(5) of the Rules provides that, if the parties do not consent to a timetable to set an action down for trial, any party may, before the expiry of the applicable period by which the registrar shall dismiss the action for delay under r. 48.14(1), bring a motion for a status hearing.
20Rule 48.14(7) provides that, at a status hearing, the plaintiff shall show cause why the action should not be dismissed for delay. Courts have held that the plaintiff bears the onus of demonstrating both that there was an acceptable explanation for the delay and that, if the action were allowed to proceed, the defendant would suffer no non-compensable prejudice; this is a conjunctive test: see Kara v. Arnold, 2014 ONCA 871, at para. 8. The parties agree that this is the test to be applied.
21The court is to take a “contextual approach” when considering the explanation for the delay and any prejudice. The main goal is to balance the right of the plaintiff to have the matter determined on the merits and the right of the defendant to have a fair trial: H.B. Fuller Company v. Rogers (Rogers Law Office), 2015 ONCA 173, at para. 28.
22In considering the issue of delay, the court should assess whether the plaintiff’s explanation for the delay is reasonable in light of the overall conduct of the action as a whole, without requiring the plaintiff to justify its carriage of the case at each incremental stage of the action: Carioca’s Import & Export Inc. v. Canadian Pacific Railway Limited, 2015 ONCA 592, at para. 46.
23Courts have held that it is unfair to ignore a defendant’s passivity with respect to the progress of an action: see Manulife Financial Corporation v. Portland Holdings Inc. et al., 2021 ONSC 3767, at paras. 34-35.
24When reviewing a dismissal for delay under r. 48.14, “the weight of authority favours the determination of civil actions on their merits”: CWH Distribution Services Inc. v. Imperial Chilled Juice Inc., 2020 ONSC 7006, at para. 65.
25The Ontario Court of Appeal has also held that, on a motion like this, the court should be primarily concerned with the rights of the client who, if innocent, should not ordinarily lose the right to proceed due to their lawyer’s inadvertence: Finlay v. Van Paassen, 2010 ONCA 204, at para. 33; Kamalie v. Khari, 2021 ONSC 7395, at paras. 21-22.
Analysis
26For the reasons below, I conclude that it is just in the circumstances to grant the Plaintiff’s motion to extend time and permit this action to proceed.
(i) Is there an adequate explanation for the delay?
27The Defendants have waived any objection relating to delay occurring after August 14, 2020, since, following that date, they were investigating whether they had suffered prejudice, and the within status hearing motion was brought on January 22, 2021. Accordingly, the time period at issue is from November 25, 2015, the date when the Defendants delivered their statement of defence and pleadings closed, to August 14, 2020, the date when counsel for the Plaintiff proposed a timetable (“the Delay Period”): Kara, at para. 15.
28Counsel for the Plaintiff submits that an adequate explanation has been provided in light of the supporting affidavit filed by the Plaintiff’s former lawyer wherein they explain the chronology of the proceeding and take responsibility for the delay (other than delay attributable to the Defendants) from when the file was transferred to them until early 2020. Counsel also relies on the Plaintiff’s affidavit wherein he attests that, at all times, he intended to see the action through to a negotiated settlement or trial; he always believed the litigation was proceeding in the normal course; and that he had contacted his lawyers in early 2020, on his own initiative, to obtain a status update. Counsel argues that the Defendants acquiesced to the pace of the litigation and bear some responsibility for the delay given their refusal to proceed with discoveries back when contacted in August 2020. Counsel for the Plaintiff submits that “investigating prejudice” is not a valid reason for the Defendants to refuse to cooperate with advancing the action and that, but for the Defendants’ tactics, there would have been no need for a status hearing or an extension of time as the action could have been set down within the five-year time period contemplated by the Rules. He argues that it would be unjust for the Plaintiff’s claim to be procedurally dismissed in these circumstances.
29Counsel for the Defendants argues that the Delay Period was a time of almost complete silence, and the only step taken by the Plaintiff was the delivery of a draft affidavit of documents in May 2018. He contends that the explanation provided by the Plaintiff is not adequate. The Defendants take the position that because the Plaintiff did not seek to schedule or complete examinations for discovery of the Defendants in the nearly seven years after the arrest, important evidence has been lost because the defendant officers’ memories have weakened over time. While counsel for the Defendants acknowledges that the Plaintiff had no obligation to conduct examinations for discovery, he submits that, if the Plaintiff did not intend to conduct examinations, the Plaintiff could have set the action down for trial at any point during the Delay Period and no explanation has been provided for why he did not do so. Counsel submits that in many of the delay cases relied on by the Plaintiff, where an action was allowed to proceed, the courts put weight on the fact that examination for discovery transcripts were available for witnesses to refresh their memories before trial and that the instant case is distinguishable on this basis since no discoveries have been held.
30I acknowledge that the pace of this litigation has been slow. However, I am satisfied that the Plaintiff has provided an acceptable explanation for the delay over the Delay Period.
31The uncontroverted evidence provided on behalf of the Plaintiff establishes that he believed the litigation was advancing. There is no evidence to support a finding that the action had been abandoned or put in abeyance or intentionally delayed by the Plaintiff. The litigation’s progress was clearly impacted by the change in carriage through four lawyers and the impact of COVID-19, none of which was the fault of the Plaintiff.
32With respect to the period from November 25, 2015 to the delivery of the Plaintiff’s affidavit of documents on May 9, 2018, I find that there was no inordinate delay. There had been some communication between counsel and the Plaintiff’s lawyer was taking steps to obtain relevant information and documentation.
33With respect to the period from September 2018, when carriage of the Plaintiff’s file was transferred, to late February 2020, when the Plaintiff contacted the law firm for an update, I am satisfied that the delay has been adequately explained and was due to inadvertence. The delay was not intentional.
34With respect to the period from March 17, 2020 to August 2020, I am satisfied that the delay has been adequately explained and was largely due to the impact of the COVID-19 pandemic.
35Current counsel for the Defendants became the lawyer of record in July 2020. He worked at the same firm as the former lawyer of record so the file’s history would have been available to him. His first three letters to Plaintiff’s counsel, however, inquired whether there was any insurance that would respond to the action. There is no mention in these letters of any concerns about litigation delay or prejudice. Upon receiving the August 14, 2020 correspondence from counsel for the Plaintiff seeking to set a timetable, the Defendants’ counsel responded asking for an explanation for the delayed prosecution of the action; no claim of potential prejudice was made.
36Based on the record before me, I find that the Defendants did not raise any urgency or express concern about litigation delay or prejudice prior to August 27, 2020. Accordingly, I am of the view that, at the very least, the Defendants passively acquiesced in how the litigation was progressing to this point in time.
37Given that the Defendants have waived prejudice subsequent to August 14, 2020, it is not necessary for me to address events that occurred after that date.
38I find that the Plaintiff has adequately explained the delay.
(ii) Is there any non-compensable prejudice to the defendant?
39A plaintiff bears the onus of establishing that there is no non-compensable prejudice to the defendant. A defendant can provide evidence of such prejudice. The prejudice to be considered is to the defendant’s ability to defend the action. In evaluating the strength of the presumption of prejudice, all of the circumstances, including the defendant’s conduct in the litigation, must be considered: see H.B. Fuller Company, at paras. 37-38.
40Counsel for the Plaintiff submits that, while the Defendants assert prejudice due to the alleged weakened memories of their witnesses, they have produced detailed notes, statements and other contemporaneous records. He argues that the Defendants admit that there are significant written records relating to the subject incident and that each of the defendant officers has sworn that their notes and statements are “accurate”, “complete”, “correct”, and they “verily believe [them] to be true”. He submits that other courts have rejected arguments of prejudice due to fading memories where there are statements, notes and/or other records available to refresh memories. Among the cases he cited: Armstrong v. McCall (2006), 28 C.P.C. (6th) 12, 213 O.A.C. 229 (Ont. C.A.), at para. 25; Kamalie, at paras. 36-37; Cornell v. Tuck, 2018 ONSC 7085, at paras. 107-111; Key Anlouis Investments Limited v. 800246 Ontario Inc., 2018 ONSC 5895, at para. 29. Plaintiff’s counsel argues that the defendant officers do not explain why they could not have kept their memories fresh through periodic review of their notes and statements knowing that the Rules provide for five years to schedule a trial. He submits that it is telling that the Defendants never raised any concern about prejudice until the Plaintiff’s lawyer tried to schedule examinations for discovery.
41Counsel for the Defendants argues that the Plaintiff’s delayed prosecution of the action has led to actual, not presumed, prejudice to their ability to defend the action. Counsel contends that, even with the benefit of the Defendants’ written records, the defendant officers have each given evidence of their respective inability to remember key, specific, and material details and that this was likely caused by the delay. In that regard, the Defendants identify a number of evidentiary points they believe have been lost, including specifics relating to the Plaintiff’s alleged fall from a fence, the Plaintiff physically resisting arrest, where and how the Plaintiff was restrained, how the Plaintiff was handcuffed, how the Plaintiff was removed from the ground and placed in a police cruiser following his arrest, and the circumstances of the initial traffic stop. Counsel for the Defendants submits that the Plaintiff has led no evidence showing that all documentary evidence has been preserved or that the issues in the action do not depend on the recollection of witnesses or that all necessary witnesses are available with detailed recollection of the events.
Presumptive Prejudice
42I find that the Plaintiff has rebutted any presumption of prejudice due to delay.
43Mr. Heslop attests that, with the exception of the advice of Defendants’ counsel that he may have lost contact with the defendant Officer Flynn, Mr. Heslop is not aware of any potential witnesses who are no longer available to testify at a trial and he is not aware of any records that have gone missing in the course of the litigation. One of Mr. Heslop’s former lawyers also attested that they are not aware of any prejudice caused by the Plaintiff’s delay that would inhibit the Defendants’ ability to defend a trial, that they are not aware of any records that have gone missing in the course of the litigation, and that requests had been made of Mr. Heslop’s treatment providers for updated medical records.
44The Defendants’ evidence is that, while initially Officer Flynn could not be located, he has since been contacted. Officer Flynn is therefore available to be called as a witness at trial.
45Accordingly, I find that the Plaintiff has provided evidence that the relevant documentary evidence remains available, including the written records of the defendant officers, and that witnesses are available to testify.
Actual Prejudice
46With respect to the Defendants’ claim that there is actual prejudice to them due to weakened memories, I find that such prejudice, if any exists, does not arise from the Plaintiff’s delay.
47The Rules contemplate a five-year period within which parties have to complete an action. In light of that time, to the extent possible, parties are expected to preserve any evidence that is necessary to put forward their claim or defence. In this case, the Defendants were sued in a timely manner and were put on notice that the Plaintiff was making a claim in connection with the incident. By the claim, the Defendants were made aware that the Plaintiff was alleging that the arrest was unlawful and resulted in forcible confinement and that the defendant officers used excessive force, including handcuffs that were too tight, and that, as a result, the Plaintiff suffered personal injury.
48In terms of the evidentiary points the Defendants claim have been potentially lost to the passage of time, a review of their statement of defence shows that all of these were, or should have been, contemplated at the time of the drafting of the defence:
a. Sub-paragraphs 6(r) and (t) plead that the Plaintiff climbed a fence at 114 Highland Road West and then jumped over several more fences.
b. Sub-paragraphs 6(v) and (w) plead the Plaintiff became actively resistant and struggled violently with his legs and right arm.
c. Sub-paragraphs 6(w)(x) and (y) address the application of handcuffs to, and arrest of, the Plaintiff.
d. Sub-paragraph 6(cc) addresses the placing of the Plaintiff in the police cruiser.
e. Paragraph 7 pleads that the Defendants had reasonable grounds to arrest and detain the Plaintiff and that whatever force was used at the time of arrest, it was reasonable in the circumstances.
f. Paragraph 5 pleads that the Defendants’ actions with respect to the Plaintiff were fully justified and reasonable.
g. Sub-paragraphs 6(a)(b)(d)(e)(f)(g)(h)(i) plead the grounds upon which the Plaintiff was stopped by the Police.
49Based on their own pleadings, the Defendants could reasonably have foreseen needing the information or evidence they now claim is lost. They had the ability to fully investigate the Plaintiff’s allegations. While no discoveries of the defendant officers were held, there was ample opportunity for the Defendants to take their own steps to conduct interviews and otherwise preserve evidence and this was not contingent on the Plaintiff doing anything. A defendant cannot rely on prejudice caused by its own conduct in failing to do something that it reasonably could have or ought to have done, such as interviewing witnesses, conducting surveillance, or otherwise preserving relevant evidence: Labelle v. Canada (Border Services Agency), 2016 ONCA 187, at para. 23; Chiarelli v. Wiens (2000), 46 O.R. (3d) 780 (Ont. C.A.), at paras. 14-15.
50While each of the defendant officers gave evidence that their memories have been degraded by the passage of time and that they cannot recall key events that are important to their defence, they have provided no explanation as to why they were unable to take measures to preserve their evidence and memories, given their knowledge of the claim and that they would have to provide evidence in their defence if the matter went to trial.
51The defendant officers took contemporaneous notes and prepared statements respecting the incident and arrest. They are specifically trained in this skill. It is common for police officers to give evidence at trial based on notes they made at the time of an event and which are used to refresh their memory. One of the defendant officers attested that “[i]t is standard practice to record precisely what happens in an interaction with an accused and, if an officer uses force, they will take careful notes about what happened so that they can defend allegations of excessive force in the future”. Each of the four defendant officers state that they are heavily reliant on their notes and/or written statements, however, they also say that they believe these records to be complete and accurate. These records remain available to them.
52I also note the statement made in the Staff Superintendent’s supporting affidavit, respecting the Defendants’ intention to seek partial or full summary judgment, wherein he says: “… if the action is allowed to proceed, the available evidence suggests that there are no issues requiring a trial in respect of liability …” This supports the contention made by counsel for the Plaintiff that the Defendants are not actually prejudiced and unable to appropriately defend themselves in this action.
53Counsel for the Defendants relies on the case DK Manufacturing Group Ltd. v. MDF Mechanical Limited, 2019 ONSC 6853, in support of its position that this motion should be dismissed. I find DK Manufacturing to be distinguishable. In that case, the plaintiff did not provide any evidence in support of its argument that there was no non-compensable prejudice whereas, in the instant case, uncontroverted affidavit evidence on this issue has been provided. As well, in DK Manufacturing, the defendant had taken some steps of their own to try and move the case forward and the Court had rejected the plaintiff’s characterization of the defendant as “sitting idly by”. Here, there is no evidence before me that the Defendants took any meaningful steps to try and advance the action after delivery of the Plaintiff’s affidavit of documents.
54While a plaintiff bears the onus to move an action along, a court can take into consideration a defendant’s “unhurried approach to the litigation and lack of any express complaints of delay-related prejudice”: CWH Distribution Services, at para. 80. I am of the view that it would be unfair on the facts of this case to ignore the Defendants’ passivity.
55Finally, I find that the Defendants’ argument of actual prejudice is based on two assumptions, both of which are speculative. The first is that the evidence they say is lost is evidence that will actually be required for the trial. It may turn out that such evidence is not relevant or needed at all, depending on how the Plaintiff’s case goes in (for instance, in his reply affidavit, the Plaintiff gives an account of the underlying incident that differs in such a way that potential evidentiary gaps identified by the Defendants are not relevant). The second is that the questions that would have been asked by counsel for the Plaintiff at any examination for discovery of the defendant officers would have been the “right” questions and, importantly, would have elicited the “right” answers to provide the information that the Defendants now purport is needed to properly refresh their memories to defend themselves at trial.
56Weighing all the relevant factors, I find that the Plaintiff has shown that there is no non-compensable prejudice to the Defendants due to the Plaintiff’s delay.
Disposition
57For the foregoing reasons, I conclude that it is appropriate in the circumstances to grant the motion and extend the time to set the action down for trial to August 31, 2023.
58I agree that a timetable should be set. However, given that the Plaintiff has retained new counsel who did not appear on this motion, I do not have adequate information to set this timetable. I therefore order as follows:
(a) The parties shall confer and attempt to agree on an appropriate timetable order for the completion of the remaining steps in this action and the setting down of the trial of the action by August 31st, 2023.
(b) Any such consent timetable shall be provided to the court for its consideration and approval by no later than June 29th, 2022.
(c) If the parties are unable to agree on such a timetable, on or before June 30th, 2022, the parties shall provide me with written submissions of not more than two pages each, setting out what they think the timetable should be and why.
Costs
59With respect to costs, the parties requested an opportunity to make written submissions after release of this decision. I would urge the parties to agree on costs, but if they are unable to do so, costs submissions may be made as follows:
a. By June 17th, 2022, the Plaintiff shall serve and file his written costs submissions, not to exceed three pages, double-spaced, together with a draft bill of costs and copies of any pertinent offers; and
b. By June 24th, 2022, the Defendants shall serve and file their responding costs submissions of no more than three pages, double-spaced, together with a draft bill of costs and copies of any pertinent offers; and
c. By June 30th, 2022, the Plaintiff’s reply submissions, if any, are to be served and filed and are not to exceed two pages.
d. If no costs submissions are received by June 30th, 2022, the parties will be deemed to have resolved the issue of the costs and costs will not be determined by me.
B. MacNeil J.
MacNEIL J.
Released: May 30, 2022