2022 ONSC 3309
COURT FILE NO.: CV-13-0041-00
DATE: 2022-06-02
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Janine Lafontaine
J. Van Bakel for the Plaintiff/Moving Party
Plaintiff/Moving Party
- and -
The Corporation of the City of Thunder Bay and 1333494 Ontario Inc.
B. Love for the Defendant 1333494 Ontario Inc. Responding Party
No one appearing for the City of Thunder Bay
Defendants/Responding Parties
HEARD: May 27, 2022, at Thunder Bay, Ontario via video conference
Mr. Justice F. Bruce Fitzpatrick
Decision on Motion to Set Aside Registrar’s Dismissal Order
Background
[1] This is a personal injury matter involving a slip and fall that occurred in 2011. The action against the City of Thunder Bay has been dismissed on consent. The balance of the plaintiff’s action against 1333494 Ontario Inc. (“133”) was administratively dismissed on August 9, 2021, by the Registrar of the Superior Court at Thunder Bay. This dismissal came as the result of the matter having not been restored to the trial list within two years of having been struck from the trial list on consent on January 28, 2019.
[2] Rule 48.14(1) 2 applies. Rule 48.14 (1) 2 is as follows:
(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 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.
[3] The COVID-19 pandemic has impacted this case. The parties agree that the plaintiff had until July 29, 2021, to restore the matter to the trial list because of the operation of O Reg. 73/20 under Reopening Ontario (A Flexible Response to COVID-19) Act 2020 SO 2020 c 17 which extended limitation periods in civil matters by an additional 26 weeks.
[4] Plaintiff’s counsel did not move to restore the matter to the trial list by July 29, 2021. The defendant requisitioned the Registrar to issue the dismissal order. The defendant did not notify the plaintiff of this action. The Registrar’s order dismissing the action was sent to an old email address for plaintiff’s counsel. The dismissal order did not come to the attention of the plaintiff until late January 2022. The plaintiff then brought the within motion to have the Registrar’s order set aside and the matter restored to the trial list further to Rule 48.14(10).
[5] The defendant opposes the motion to restore the matter.
The Legal Test
[6] The parties agree on the applicable legal test on a motion to set aside a Registrar’s dismissal for delay. In the decision Prescott v. Barbon, 2007 ONCA 63 Peppall J.A. explained at para. 14 that:
- The legal test for setting aside a registrar's order dismissing an action for delay was originally described by Master Dash in Reid and adopted by this court in Scaini v. Prochnicki, 2007 ONCA 63, 85 O.R. (3d) 179:
(i) Have the plaintiffs provided a satisfactory explanation for the litigation delay?
(ii) Have the plaintiffs led satisfactory evidence to explain that they always intended to prosecute this action within the time limit set out in the rules or a court order but failed to do so through inadvertence?
(iii) Have the plaintiffs demonstrated that they moved forthwith to set aside the dismissal order as soon as the order came to their attention, and
(iv) Have the plaintiffs convinced the court that the defendants have not demonstrated any significant prejudice in presenting their case at trial as a result of the plaintiffs' delay or as a result of steps taken following the dismissal of the action?
[7] Justice Peppall further explained at paragraph 15 of Prescott that the test is not a rigid one size fits all test; a contextual approach is required.
The Facts and Analysis
[8] The parties agreed on the majority of the facts that underly this motion. The dispute was on the conclusions that should be drawn from those facts. In the circumstances, it makes most sense to me to discuss the facts and the conclusions I draw from them using the framework of the four factors discussed in the Prescott case noted above.
Issue 1: Have the plaintiffs provided a satisfactory explanation for the litigation delay?
[9] A brief overview of the history of the litigation is as follows. The slip and fall at issued happened on February 7, 2011. The plaintiff issued a Notice of Action on February 5, 2013, followed by a Statement of Claim on March 5, 2013. Discoveries of all parties occurred on July 20 and 21, 2017. The plaintiff filed a trial record on January 4, 2018. The plaintiff had not complied with her undertakings nor filed any expert reports at that time. Counsel for the defence pressed plaintiff’s counsel for the answers to the undertakings in June and July 2018. The parties agreed to let the City out of the action in April 2018 based on information obtained on discovery. A pretrial occurred on August 7, 2018. The plaintiff was not ready for trial and the matter was put to an Assignment Court. Further correspondence between counsel was exchanged in the Fall of 2018. The plaintiff answered some but not all undertakings as of January 28, 2019.
[10] In my view, the litigation had been proceeding at a “leisurely pace” up to the pretrial in August 2018. In the context of a serious personally injury case, in recent experience, it was not unusual for discoveries to occur in a four-to-six-year period following the accident. This is because plaintiffs are cautious to push forward with litigation in circumstances where their injuries have not yet resolved or stabilized. Experts cost money. Parties are reluctant to spend money litigating about injuries that may not be worth much if they get better. A defendant correspondingly is usually content to respond to how the plaintiff is pursuing matters unless the wait becomes unduly long.
[11] Prior to 2018, this case was not breaking any speed records. On the other hand, it was not the worst I have ever seen. Whether or not this pace is to be tolerated in the future given all the other pressures now facing the civil justice system is a question for another day. In my view in terms of assessing litigation delay for the purpose of the applicable test on this motion, it is important what happened once the matter was struck from the trial list in January 2019.
[12] For privacy purposes I will not name plaintiff’s counsel having carriage of the matter to date. Plaintiff’s counsel has been full and frank in the affidavit material filed on this motion on disclosing the fact they have a medical condition that has impacted conduct of the case. A letter dated May 2, 2022, from a psychiatrist was filed as an exhibit to plaintiff’s counsel’s affidavit. It described how counsel has been in treatment since 2010 for Major Depressive Disorder and Avoidant Personality Traits. This evidence was not disputed by the defence. In the letter, the psychiatrist opines:
X has described some of the problematic behaviours they exhibit in their professional role. Specifically, X has discussed their struggle to meet timelines with certain duties. X identified an understanding and appreciation of the rules regarding timelines of certain tasks but an inability to complete the work associated with meeting those deadlines. X described a pattern of avoidance despite the cases and tasks being on their mind. X also has reported difficulty in describing their "emotional state" when trying to complete tasks associated with some cases.
Given that the substance of the problems X experiences professionally involves, from my understanding, their avoidance of or delay in taking steps of advancing elements of some case files, this is in keeping with elements of their psychiatric condition. Specifically, suffering from Avoidant Personality Disorder as well as intermittent symptoms of depression, their condition will result in avoidance of attending to important tasks which results in significant impairment in this area of functioning. Given the nature of X’s personality disorder, their condition is not seen as "curable" and can only be managed or accommodated, so it is not surprising that such issues continue to occur while they are engaged in treatment. Another important aspect of X’s condition is their difficulty in articulating the nature of their symptoms. Although it is difficult to solely attribute this specific element to their personality disorder, it does exacerbate the difficulty in successfully treating their condition. Not feeling confident in labelling their mood or recounting nuances of their experiences in relationships or work makes it more likely that they will avoid discussing these subjects and ultimately more difficult to address pathological behaviours psychotherapeutically.
[13] I have edited the portion of the letter above to eliminate the identifying pronoun, substituting “their” for he/she and using X to replace either counsel’s name or the pronoun.
[14] Further in the affidavit material, plaintiff’s counsel clearly identifies that upon consenting to the matter being struck for the list they were not aware that Rule 48.14(1)2 started the clock ticking towards an administrative dismissal. At some subsequent point counsel determined they had to restore the matter, but they erroneously believed the date ran from the date of the pretrial (August 2018) instead of the date of the dismissal (January 2019). Counsel had not diarized this important two-year date. Counsel knew they needed to restore the action to the trial list, but felt overwhelmed and unable to address the file.
[15] Between January 2019 and January 2022, counsel did take some steps to obtain documents necessary to satisfy undertakings and provide evidence necessary for trial. An actuarial report concerning the plaintiff’s potential past economic loss was obtained in late December 2021. This was served on the defence together with an expert medical opinion report on April 21, 2022. On May 3, 2022, a will say statement from the plaintiff was served on the defence.
[16] The plaintiff has filed her own affidavit indicating she had always intended to prosecute the action. She did not know about the need to restore the matter to the trial list. This is not surprising. She described how she frequently contacted her counsel. She described how when she actually could get through to her counsel, how she expressed displeasure regarding the lack of progress on the file. She noted her counsel took a long time to return calls. This is not surprising in light of the revelations from the material filed on this motion.
[17] I accept the plaintiff’s personal explanation for the litigation delay as satisfactory. Counsel for the moving party has described the explanation from plaintiff’s counsel as “adequate”. In Carioca’s Import & Export v. Canadian Pacific Railway Limited, 2015 ONCA 592 (a case dealing with restoring matters to a trial list and delay) at paragraph 45 Van Rensburg J.A. said; “As to the nature of the explanation for delay, in the judgment followed in Nissar, 1196158 Ontario Inc., Sharpe J.A. referred variously to the requirement for the plaintiff to show an "acceptable", "satisfactory" or "reasonable" explanation for the delay. Therefore, I take these adjectives to be interchangeable in this context.”
[18] In this case, I would describe the explanation of the delay of two years in setting a motion to restore as “reasonable” in context. I accept plaintiff’s counsel had a medical condition that adversely affected their ability to meet the deadline. This is a reasonable explanation why the deadline was missed in the two years following the consent to have the matter struck from the trial list. I observe that I find comfort in making that assessment in the context of the undertaking by plaintiff’s counsel in their affidavit material that they are in the process of retiring and will no longer be acting for the plaintiff if the motion is granted.
[19] Plaintiff’s counsel knew they had to restore the matter to the list once it had been struck on consent. Counsel knew they had a limited time to do so. Ordinarily, an admission of having this knowledge would not be sufficient to excuse a failure to act within a two-year time frame. However, personal medical circumstances prevented counsel from taking a critical step in the two years permitted by the Rules.
[20] On the motion, the arguments from both sides did not reach deeply into a discussion or analysis of the scope or nature of the mental condition experienced by counsel for the plaintiff. Counsel for the moving party described it as a disorder. This is a delicate topic. The nature of the medical condition at issue is one with which I have had no experience. At first blush, it seems to be one that would pose great difficulties in an adversarial, rules-based environment where adherence to deadlines is critical to success. In this case, it has clearly caused the situation leading to this motion.
[21] However, it is but one aspect of the context I am to consider on this motion.
Issue 2: Have the plaintiffs led satisfactory evidence to explain that they always intended to prosecute this action within the time limit set out in the rules or a court order but failed to do so through inadvertence?
[22] The evidence in respect of this issue is similar to that bearing on the question regarding Issue 1. I find that the plaintiff and her counsel did demonstrate an intention to prosecute the action through the period January 2018 to August 2021. Counsel took steps to obtain evidence and expert reports. The plaintiff did not give instructions to hold off prosecution of the matter. Counsel for the plaintiff simply failed to bring a motion seeking leave to restore the matter to the list within two years.
[23] It is difficult to accept that the actions of counsel for the plaintiff represent mere inadvertence. They are actions borne out of a medical condition. This is not inadvertence.
Issue 3 Have the plaintiffs demonstrated that they moved forthwith to set aside the dismissal order as soon as the order came to their attention?
[24] There was an issue on the motion about when the order dismissing the action came to the attention of the plaintiff. An affidavit from the defence shows the email from the court office to an email address associated to plaintiff’s counsel on the date the matter was dismissed August 9, 2021. In argument moving party counsel advised that this was an “old email”. Counsel for the defence did not strenuously object to this assertion and accepted that the order did not come to the attention of the plaintiff until January 2022. Under this time frame, the plaintiff has moved forthwith to set aside the dismissal order as soon as it came to their attention.
[25] There was also an issue on this motion on exactly how the dismissal order came to be issued. The defendant requisitioned the Registrar to do so. No explanation was provided as to why this was procedure was necessary. Rule 48.14(1)2 mandates the Registrar to dismiss an action for delay two years after it has been struck off the trial list. I have a suspicion why this did not immediately occur on July 29, 2021, or even shortly thereafter. I emphasize it is not a suspicion that would cast blame or aspersions on any person (lawyer, party, court staff, judge) whatsoever. A lot is and was going on in this period where we are still dealing with the impact of COVID-19 and the tremendous changes it has brought upon the civil justice system. What happened, happened. However, it does present an opportunity to comment on a point of practice that may be of benefit to the bar.
[26] Rule 24.01(1)(e) and (2) provides:
24.01(1) A defendant who is not in default under these rules or an order of the court may move to have an action dismissed for delay where the plaintiff has failed,…
(e) to move for leave to restore to a trial list an action that has been struck off the trial list, within thirty days after the action was struck off.
(2) The court shall, subject to subrule 24.02 (2), dismiss an action for delay if either of the circumstances described in paragraphs 1 and 2 of subrule 48.14 (1) applies to the action, unless the plaintiff demonstrates that dismissal of the action would be unjust.
[27] In my view, in circumstances like those that presented to a defendant as in this case, it would have been “best practice” to utilize the procedure of Rule 24.01 and bring a formal motion on notice seeking an order to dismiss for delay to obtain this remedy. Utilizing this procedure would have at least brought the matter to the attention of plaintiff’s counsel.
Issue 4: Have the plaintiffs convinced the court that the defendants have not demonstrated any significant prejudice in presenting their case at trial as a result of the plaintiffs' delay or as a result of steps taken following the dismissal of the action
[28] The short answer is yes. I say this for the following reasons.
[29] The defence alleges prejudice arising from two discrete aspects. First, the simple overall delay in the slip and fall having occurred in 2011 and still awaiting trial in 2022. The obvious deterioration of witness memories over time is indisputable. It is a fact that confronts all cases. In this matter however I do not see it as a particular prejudice to the defence arising from the acts of delay of the plaintiff in the two years from January 2019 to July 2021. The case was eight years old in January 2019, it is now over 11 years old. I do not see this as a prejudice that can be uniquely attributed to the delay at issue.
[30] Second the defence takes issue with the availability of two of the plaintiff’s lay witnesses. Having reviewed the evidence presented and particularly the back and forth between counsel in the years before January 2019, I agree with the arguments of the moving party that there is no prejudice arising from circumstances involving these witnesses that would fit with the kind of prejudice that would militate in favour of maintaining the dismissal of the matter. The witnesses are still alive, the parties know where they are, and it was initially the defence position as set out in correspondence I reviewed, that the witnesses were critical to the plaintiff’s case, not the defence.
[31] The plaintiff’s ongoing and past medical records are available, some of which were recent. There is no suggestion that any key defence evidence, documentary or otherwise, is no longer available. The defence will need to respond to the plaintiff’s expert but there was no suggestion that was impossible at this point.
[32] Overall, regarding issue 4, I find that the plaintiffs have convinced the court that the defendants have not demonstrated any significant prejudice in presenting their case at trial as a result of the plaintiffs' delay or as a result of steps taken following the dismissal of the action.
[33] Reviewing all four aspects of the test and taking a contextual approach, I find on balance that the interests of justice require the Registrar’s order dismissing the action to be set aside and the matter ordered restored to the trial list. The plaintiff has reasonably explained the delay. While the delay was not due to inadvertence, it was understandable. The plaintiff did move with due dispatch to set aside the order. I find no prejudice to the defendant if the dismissal order is set aside.
[34] Counsel agreed during a break in the argument that in this event, no costs would be awarded to either party for this motion. I would take that a step further. In the event the matter does go to trial, and the plaintiff is successful, I direct this decision be brought to the attention of the trial judge following a decision, if the issue of costs is being considered. It seems to me that a trial judge should look very closely at any claim for any of the plaintiff’s costs for the period January 2019 to June 1, 2022.
[35] The provisions of Rule 37.14 which govern the setting aside of a Registrar’s order provides at sub rule (2) that the order shall be set aside on such terms as are just. The terms of the final order for this motion remain outstanding at this point. I direct counsel for the parties to arrange a case conference before me where the precise terms of any timelines or additional orders as are necessary to expeditiously have this matter tried will be discussed. This should be scheduled in the next thirty days. I direct the plaintiff to be in attendance personally at this conference. I expect new counsel for the plaintiff to be available and ready to meaningfully participate in this conference. Requests for adjournments, pleas of lack of availability for trial in the foreseeable future and inability to produce documents or reports in a short time frame will not be looked upon favourably. This will be particularly the case for the plaintiff’s side given how this matter has unfolded to date. Among other things, I expect the conference to produce an order giving effect to this judgment and any further directions regarding conduct of the matter.
[36] I thank counsel from both sides for professionally and efficiently dealing with the novel and delicate issues that presented on this motion before me.
“original signed by” The Hon. Mr. Justice F.B. Fitzpatrick
Released: June 2, 2022
2022 ONSC 3309
COURT FILE NO.: CV-13-0041-00
DATE: 2022-06-02
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Janine Lafontaine
Plaintiff/Moving Party
- and -
The Corporation of the City of Thunder Bay and 1333494 Ontario Inc.
Defendants/Responding Parties
DECISION ON MOTION TO SET ASIDE REGISTRAR’S DISMISSAL ORDER
Fitzpatrick J.
Released: June 2, 2022
/lvp