COURT FILE NO.: CV-14-00501648
DATE: 2022 07 14
ONTARIO
SUPERIOR COURT OF JUSTICE
JACQUELINE FAZAL; ZAMIR FAZAL
Plaintiffs
And
ABC CORPORATION; FCA CANADA INC. (FORMERLY CHRYSLER CANADA INC.) 1035312 ONTARIO LIMITED O/A BRAMPTON CHRYSLER DODGE JEEP
Defendants
AND BETWEEN:
FCA CANADA INC. (FORMERLY CHRYSLER CANADA INC.) AND 1035312 ONTARIO LIMITED o/a BRAMPTON CHRYSLER DODGE JEEP
Plaintiffs by Counterclaim
And
ZAMIR FAZAL
Defendant to the Counterclaim
BEFORE: Associate Justice Ilchenko
COUNSEL:
Louis P. Covens (“Covens”) for the Plaintiffs Jacqueline Fazal and Zamir Fazal (“Jacqueline” and “Zamir” or collectively the “Plaintiffs”)
Christopher Horkins (“Horkins”) and Meghan Rourke for Defendants FCA Canada Inc. (Formerly Chrysler Canada Inc.) (“FCA”) and 1035312 Ontario Limited O/A Brampton Chrysler Dodge Jeep (“Brampton Chrysler”) (collectively the “Defendants”)
Counsel for ABC Corporation (now identified as Stabilus) not attending
M. Rozsa for Zamir on the Counterclaim
HEARD: February 16, 2022, all Parties directed to file further hyperlinked Compendia of their portion of the 1397 pages of materials by March 16th, 2022, which increased the materials to 1626 pages.
RELEASED: July 14, 2022
E N D O R S E M E N T
I) Nature of Relief Sought by Plaintiff
[1] The Plaintiff has brought this motion (the “Motion”) to set aside the Registrar's administrative dismissal order dated May 15, 2019 administratively dismissing this action under the provisions of R. 48.14 (the “Dismissal Order”), as this action commenced by the Plaintiff on April 7, 2014 (the “Action”) had not been set down for trial or terminated by any means by the fifth anniversary of the commencement of the action.
[2] This Motion was initially brought, and a Notice of Motion was served, on February 22, 2021, returnable on a date to be determined by the Court. At a case conference before Associate Justice Brott held on March 30, 2021 this motion was scheduled for December 2, 2021, and a case timetable was set. This motion was subsequently adjourned due to the unavailability of AJ Brott on that date, to be heard by me on February 16, 2022 as a Long Motion.
[3] At the outset, I would like to commend all counsel on this complicated and technical Motion on the quality and organization of their voluminous materials, now grown collectively to 1626 pages, and their Advocacy before me. Without the hyperlinked documentation they produced, these Reasons would have been far more difficult to complete.
II) Context in which the Motion is Brought
Plaintiffs’ Evidence
[4] The Pleadings in this Action filed by the Plaintiffs and Defendants are appended as Tab 4 of the Motion Record of the Plaintiffs (Statement of Claim) and Tab 5 to the Motion Record of the Plaintiffs (Statement of Defence) as described in the Affidavit of David Levy (“Levy”) sworn May 27, 2021 in support of the Plaintiffs’ Motion (the “Levy Affidavit”).
[5] By Order of Master Muir dated September 21, 2015 the Defendants were permitted to amend their Statement of Defence and add a counterclaim against the Plaintiff Zamir (the “Amended Statement of Defence and Counterclaim” or singularly the “Counterclaim”) which is attached at Exhibit V to the Holland Affidavit (as defined below).
[6] Levy is the lawyer for the Plaintiffs who had carriage of the Action prior to the issuance of the Dismissal Order. Levy was Cross-Examined on the Levy Affidavit (the “Levy Examination”) and the transcript of that examination was entered into evidence (the “Levy Transcript”).
[7] In addition, the Plaintiff Jacqueline swore an affidavit in support of the Motion on May 28, 2021 (the “Jacqueline Affidavit”). Jacqueline was Cross-Examined on her Affidavit (the “Jacqueline Examination”) and the transcript of that examination was entered into evidence (the “Jacqueline Transcript”). The entirety of the Jacqueline Affidavit reads:
“1. I am a Plaintiff in this action, and as such I have knowledge, information and belief of the matters to which I hereinafter depose.
I have recently spoken to my lawyer, Mr. David Levy, and understand the within action was administratively dismissed by way of a Registrar's Dismissal Order on May 15, 2019,
I did not know the Registrar dismissed my action until recently.
My husband and I have always intended to maintain this claim.
We kindly ask the Court to set aside the Registrar's Dismissal Order so we may continue our action.
I make this affidavit in support of the motion to grant leave to set aside the Registrar's administrative dismissal order dated May 15, 2019 and for no other or improper purpose.”
[8] Nowhere in the Jacqueline Affidavit does Jacqueline state that she instructed Levy to abandon the Action. Jacqueline’s Affidavit is silent however on whether Jacqueline contacted Levy prior to the date of the Dismissal Order regarding the conduct and progress of the Action.
[9] Jacqueline was cross-examined on the Jacqueline Affidavit and provided further evidence on this issue:
“110 Q. Were you still interested in pursuing your claim against Chrysler after settling your accident benefits claim?
A. Yes.
116 Q. Were you relying on Mr. Levy and his firm to advise you on what needed to be done to get the case to trial?
A. Yes.
123 Q. Did you or your husband instruct Mr. Levy to move the action forward to trial after the mediation?
A. Yes.
127 Mrs. Fazal, did you or your husband ask for updates from Mr. Levy about the status of your case after the mediation?
A. Yes.
147 Q. Okay. And how did you find out that the case had been dismissed for delay?
A. How did I find out? I can't remember. But I just was inquiring and ...
148 Q. Inquiring with Mr. Levy?
A. Yeah.
149 Q. And so when did you make that inquiry?
A. Sometime this year. I am not sure which month, but it was sometime. It was this year.
150 Q. And how did you reach out to him? Would you have reached out to him by e-mail? Was it a phone call?
A. Maybe a phone call or an e-mail. I can't remember. My memory is bad.
151 Q. And what were you asking about? Was it just kind of, "Hey, what is going on with my case?"
A. I wanted to know if Chrysler has made any action towards it. I wanted to know where I stand with Chrysler and that.
152 And were you reaching out because you hadn't heard from him in a while? Or what was the purpose of reaching out?
A. Well, I just wanted to know where I stand with my case. Okay?
182 Q. If you knew about the five-year deadline to set the action down –A. No.
183 Q. -- for trial?
A. I wouldn't know about that. I wouldn't know there was such a thing, even.
184 Q. And so were you aware that the five-year deadline was set to expire on April 7 –
A. No.
185 Q. -- 2019?
A. No.
186 Did anyone, including your lawyers, ever explain to you that there was such a deadline?
A. No.”
[10] In answer to undertakings on this cross-examination Jacqueline answered as follows:
“Q.161 To provide the date of the written correspondence, if any, wherein Mr. Levy first advised the plaintiffs that the action had been dismissed for delay.
A. Mr. Levy’s office has advised there was a phone call between Mr. Levy and Jacqueline on March 31, 2021 and likely when the Plaintiffs were first apprised of the dismissal order.”
[11] It is unclear whether this is the same date as the answer to Q.149 above, other requests by Horkins for specific dates of inquiries by Jacqueline to Levy regarding the progress of the Action having been refused on the basis of Solicitor and Client Privilege.
Defendants’ Evidence
[12] In response the Defendants have filed extensive Affidavit evidence, as well as an expert’s report. The Defendants have filed the Affidavit of Jennifer Lewis (“Lewis”), the former general manager of the Defendant Brampton Chrysler sworn July 23, 2021 (the “Lewis Affidavit”). It appears that Lewis was not cross-examined on this Affidavit.
[13] In addition the Defendants have filed the Affidavit of Stuart Shaw (“Shaw”), the Manager of Vehicle Safety and Regulatory Compliance for FCA sworn on July 27, 2021 (the “Shaw Affidavit”). It appears that Shaw was not cross-examined on this Affidavit.
[14] In addition, the Defendants have filed the Affidavit of Stefanie Holland (the “Holland Affidavit”) the primary client responsible partner for FCA at Cassels Brock & Blackwell LLP (“Holland”). Hollands evidence is based, inter alia, on her review of the file and from her position as client responsible partner. It appears that Holland was not cross-examined on this Affidavit.
[15] In addition, the Defendants have filed the Affidavit of Dr. Eric R. Weishaupt (“Weishaupt”) sworn July 16, 2021 (the “Weishaupt Affidavit”), an expert, attaching his Expert’s Report (the “Defendants’ Report”), CV and Acknowledgement of Expert’s Duty. Weishaupt also swore a Reply Affidavit (the “Weishaupt Reply Affidavit”) on September 17, 2021, attaching a Reply Report to the Plaintiff’s Report (the “Defendants’ Reply Report”).
[16] Weishaupt was Cross-Examined on the Weishaupt Affidavit, the Weishupt Reply Affidavit, and the Defendants’ Report and the Defendants’ Reply Report (the “Weishaupt Examination”) and the transcript of that examination was entered into evidence (the “Weishaupt Transcript”).
[17] In response, the Plaintiffs have filed the Affidavit of Robert Sparling (“Sparling”) sworn August 19, 2021 (the “Sparling Affidavit”), an expert, attaching his Expert’s Report (the “Plaintiffs’ Report”), CV and Acknowledgement of Expert’s Duty. Sparling was Cross-Examined on the Sparling Affidavit and the Plaintiffs’ Report (the “Sparling Examination”) and the transcript of that examination was entered into evidence (the “Sparling Transcript”).
[18] A summary of the positions of the parties from the Pleadings, and quotations from their specific respective positions taken on the issues to be determined on this Motion, are necessary to place the issues being determined on this motion in the broader context of this Action.
Statement of Claim
[19] The Plaintiffs in their Statement of Claim (the “Statement of Claim”) claimed damages in the amount of $300,000 in General Damages and $1,000,000 in Special Damages for the Plaintiff Jacqueline and Damages in the sum of $ 300,000.00 pursuant to the Family Law Act. R.S.O. 1990, c.F.3 for the Plaintiff Zamir.
[20] The Statement of Claim alleges that Jacqueline was the operator and Zamir was the owner of a Chrysler Town & Country Minivan manufactured by the Defendant FCA and sold to Zamir by the Defendant Brampton Chrysler (the “Minivan”).
[21] The Plaintiffs allege that on May 13, 2012, the Plaintiff, Jacqueline was unloading some items from the trunk/cargo area of the Plaintiffs’ Minivan, when suddenly and without warning, allegedly the mechanism holding the liftgate open, which was equipped with an automatic opener, collapsed and closed automatically, and that the liftgate allegedly violently struck Jacqueline on the head causing serious and permanent injuries (the "Injury").
[22] The Injury allegedly occurred in the parking lot of the Big Apple Restaurant and Market near Cobourg Ontario, where the Plaintiffs had stopped to purchase some pies. This has relevance to issues of change of venue that will be described in detail later, as the Plaintiffs and the Defendant Brampton Chrysler are resident in Brampton, the Defendant FCA is resident in Windsor, but this Action was commenced in Toronto.
[23] The Plaintiffs allege that the Defendants had received other complaints about failures of the liftgate props installed in various Dodge Town & Country motor vehicles similar to the Minivan and that the failure in the liftgate prop-rods installed in the Minivan was the result of defects in the materials used for the liftgate, and the liftgate installed in the Minivan was not of merchantable quality and was unfit for its intended use as an automatic device to open, support and hold the liftgate in place, and make general product liability claims.
[24] As a result of the Injury, Jacqueline claims she sustained permanent and serious impairment of important physical, mental and psychological functions, including injuries She sustained, inter alia, a serious shock to her system together with a general tearing and straining of the muscles and ligaments throughout her body. In particular In particular she claims to have sustained injuries to her head, jaw, neck, shoulders, back, chest, arms, elbows, hands, knees and legs as well as bruising of her body, and severe pain and suffering and psychological trauma, including severe headaches, dizziness, anxiety, nervousness, numbness, impaired function of her muscles, insomnia and depression, as well as a loss of income earning potential and a diminution of income earning capacity.
[25] As a result of the Injury, the Plaintiff Zamir claims under the Family Law Act for the loss of care, guidance and companionship of his wife and has provided extensive housekeeping, attendant care and clerical services for his wife, for which he claims he is entitled to an allowance.
[26] Initially, the Plaintiff’s retained a lawyer, Muhammad Alam (“Alam”), to represent them with respect to this claim. The Statement of Claim was issued on April 7, 2014, almost 2 years after the date of the Injury.
[27] On February 9, 2015 Howie Sacks Henry LLP and Levy served a Notice of Change of Lawyer on all parties, which is Exhibit F to the Levy Affidavit, and Levy replaced Alam as counsel for the Plaintiffs, approximately a year after the issuance of the Statement of Claim, and almost 3 years after the Injury.
[28] The Dismissal Order was issued almost exactly 7 years after the Injury.
The Prop Rods
[29] One key issue on this action and this Motion are the liftgate props or “gas shocks” that open and hold open the liftgate, and whose failure allegedly caused the Injury (the “Prop-Rods”).
[30] Levy in the Levy Affidavit states the following with respect to these Prop-Rods and the efforts by Alam to preserve this evidence in the period leading up to the issuance of the Statement of Claim:
“8. After the above incident the Plaintiffs brought the minivan back to the dealership where the 'prop rods' were replaced at no cost to the Plaintiffs. The 'prop rods' look like hydraulics that allow the lift gate to open and close.
Stuart Shaw, the manager of FCA Canada Vehicle Safety and Regulatory Compliance, was produced as a witness on behalf of the Defendant, FCA Canada Inc. (Formerly Chrysler Canada Inc.). Mr. Shaw confirmed the Defendants continue to have and preserve the original 'prop rod.' Attached hereto and marked as Exhibit B is a copy of Mr. Shaw's transcript arising from his examination for discovery (see page 65). Also attached hereto and marked as Exhibit C is a copy of a letter by Mr. Zakaib, former counsel for the Defendants confirming the preservation of the 'prop rod’.
On June 12, 2012 and September 17, 2012 Muhammad Alam of Alam Law Office wrote to Chrysler Canada Inc. putting them on formal notice of his retainer to pursue a personal injury claim as against them. Attached hereto and collectively marked as Exhibit D are copies of Mr. Alam's notice letters.
On April 15, 2013 Mr. Alam wrote to Chrysler Canada Inc. requesting they preserve the liftgate component in dispute. Attached hereto and collectively marked as Exhibit E is a copy of Mr. Alam's letter.”
[31] In the Holland Affidavit, the correspondence between Alam and FCA in the pre-Statement of Claim period is described as follows:
“Pre-Litigation Correspondence
On or about June 12, 2012, the plaintiffs' former counsel, Muhammad Alam of Alam Law Office PC, wrote to FCA Canada advising that he had been retained by Mrs. Fazal with respect to an action for injuries allegedly suffered by her in the Incident. A copy of this correspondence is attached hereto as Exhibit "A".
On June 15, 2012, FCA Canada's Litigation and Arbitration Manager, Robert Lackovic, wrote to Mr. Alam advising that FCA Canada had not been provided with any evidence that a manufacturing defect had caused the Incident and inviting Mr. Alam to provide any evidence or expert report upon which Mrs. Fazal intended to rely in supporting such a claim. A copy of this correspondence is attached hereto as Exhibit "B".
On or about September 17, 2012, Mr. Alam wrote to 103 advising of his retainer by Mrs. Fazal and that he was in the process of issuing a claim against FCA Canada. He further requested information regarding 103's replacement of the prop rods during warranty service performed following the Incident and asked that 103 preserve the prop rods if still in their possession. A copy of this correspondence is attached hereto as Exhibit "C".
On or about February 27, 2013, Mr. Alam again wrote to FCA Canada stating that he had been advised that the prop rods removed from the Vehicle had been returned to the manufacturer. Mr. Alam asked that FCA Canada locate and preserve the "replaced portion of the liftgate" for use as evidence in Mrs. Fazal's intended litigation. Mr. Alam also asked FCA Canada to identify the manufacturer of the prop rods. A copy of this correspondence is attached hereto as Exhibit "D".
On March 4, 2013, Mr. Lackovic wrote to Mr. Alam confirming that the prop rods which were removed from the Vehicle had been retained and preserved by FCA Canada. Mr. Lackovic further advised that FCA Canada was unable to identify the manufacturer of the prop rods due to a confidentiality agreement with the supplier. A copy of this correspondence is attached hereto as Exhibit "E".
On or about April 15, 2013, Mr. Alam wrote to Mr. Lackovic of FCA Canada advising that he understood that FCA Canada had possession of the prop rods removed from the Vehicle and asking that FCA Canada preserve the prop rods "as there is a pending litigation this matter and this evidence may be called upon for trial." Mr. Alam further requested that FCA Canada identify the manufacturer of the prop rods so that they may be added as a party to the action. A copy of this correspondence is attached hereto as Exhibit "F".
On May 7, 2013, Mr. Lackovic wrote to Mr. Alam noting again that FCA Canada was unable to provide the name of the prop rod manufacturer. copy of this correspondence is attached hereto as Exhibit "G".
On or about January 10, 2014, Mr. Alam wrote to Mr. Lackovic of FCA Canada requesting availability to arrange for "our engineers to inspect the liftgate props and this request is being made pursuant to the Rules of Civil Procedure." Mr. Alam again asked that FCA Canada identify the manufacturer of the prop rods so that they may be added as a party to Mrs. Fazal's intended action. A copy of this correspondence is attached hereto as Exhibit "H".
On January 28, 2014, Mr. Lackovic wrote to Mr. Alam reiterating that FCA Canada was not able to provide the name of the prop rod manufacturer. Mr. Lackovic also advised that FCA Canada could not provide access to the prop rods since FCA Canada did not believe the request fell within the scope of the Rules of Civil Procedure. A copy of this correspondence is attached hereto as Exhibit "I".”
On June 25, 2014 Mr. Zakaib wrote to Ms. Fasoyiro confirming their telephone conversation of June 10, 2014 and advising that the prop rods had been stored at FCA Canada's premises in Windsor, Ontario where they could be made available for non-destructive examination by plaintiffs' counsel or their experts. Mr. Zakaib further noted that FCA Canada was not able to formally identify the manufacturer of the prop rods due to contractual obligations but advised that the new prop rods installed on the Vehicle, which remained in the plaintiffs' possession, were manufactured by the same manufacturer as the prop rods which had been removed and that the prop rods contained markings which should identify the manufacturer. Mr. Zakaib requested to speak with Mr. Alam to explore the nature of the claim and potential damages at his earliest convenience. A copy of this correspondence is attached hereto as Exhibit "L".
On October 9, 2014, Mr. Zakaib again wrote to Ms. Fasoyiro noting that Mr. Alam's office had not contacted Cassels to make the necessary arrangements for an inspection of the prop rods. Mr. Zakaib invited Mr. Alam to contact him to discuss the claim, requested copies of Mrs. Fazal's medical documentation, and provided draft copies of the affidavits of documents of FCA Canada and 103. A copy of this correspondence is attached hereto as Exhibit "M".
On October 27, 2014, Mr. Alam wrote to Mr. Zakaib requesting availability to attend FCA Canada's Windsor premises to inspect the prop rods and advising that he planned to amend the Statement of Claim upon confirming the name of the manufacturer of the prop rods. Mr. Alam thanked Mr. Zakaib for advising that the replacement prop rods would contain the identity of the manufacturer. A copy of this correspondence is attached hereto as Exhibit "N".
On November 13, 2014, and as described in the correspondence attached as Exhibit "O" below, Mr. Zakaib had a telephone call with Mr. Alam in which Mr. Alam agreed to deliver the plaintiffs' productions as quickly as possible and advised that he would be seeking to have an expert attend in Windsor to inspect the prop rods at FCA Canada's offices.
On November 14, 2014, Mr. Zakaib wrote to Mr. Alam confirming their telephone discussion on November 13, 2014 and asking Mr. Alam to provide the dates on which he was seeking to have an expert attend at FCA Canada's offices in Windsor to inspect the prop rods so that he may canvas FCA Canada's availability and make the necessary arrangements. A copy of this correspondence is attached hereto as Exhibit "O".
On January 6, 2015, Mr. Zakaib again wrote to Mr. Alam following up on his letter of November 14, 2014, advising that he had yet to hear from Mr. Alam with respect to the delivery of the plaintiffs' productions or the intended expert inspection of the prop rods. A copy of this correspondence is attached hereto as Exhibit "P".
On February 9, 2015, Mr. Zakaib wrote to Mr. Levy advising of his prior attempts to move the matter forward with Mr. Alam including by requesting delivery of the plaintiffs' productions. Mr. Zakaib noted that Mr. Alam had been "insistent upon having an expert review the liftgate props" at FCA Canada's offices in Windsor but that he had yet to hear from Mr. Alam with respect to arranging such an inspection. Mr. Zakaib invited Mr. Levy to contact him regarding moving the matter forward. A copy of this correspondence is attached hereto as Exhibit "R".
[32] From this evidence it appears that Alam had been retained by the Plaintiffs approximately a month after the Injury, and in the ensuing almost two years was engaged in attempting to preserve the Prop-Rod evidence and determining the name of the Prop-Rod Manufacturer from FCA, ultimately issuing the Statement of Claim with the placeholder defendant ABC Corporation, which has now been identified to be “Stabilus” (“Stabilus”).
[33] It also appears from this correspondence that Alam did not have the Prop-Rods in the possession of FCA inspected during his tenure as counsel for the Plaintiff’s, a period from June of 2012 when he was retained by the Plaintiffs to February of 2015 when he was replaced by Levy, a period of almost 3 years.
[34] Despite being replaced in this Action, Alam apparently continued to represent Jacqueline in respect of her statutory accident benefits claim (the “SABS Claim”).
[35] In the Shaw Affidavit, also filed on behalf of the Defendants, Shaw as the Manager of Vehicle Safety and Regulatory Compliance for FCA, and the discovery witness for FCA, provides the following evidence on this Motion with respect to the Prop-Rods:
“5. The prop rods at issue are a third-party manufactured part supplied by Stabilus, a component manufacturer based in Germany. They consist of two gas-charged extending rods that extend to hold open the liftgate of the Vehicle when the trunk is opened.
As I confirmed at my examination for discovery and through answers to undertakings, there is no record of Stabilus communicating any "en masse" issue with the prop rod components supplied for the 2011 Town and Country and the only record of any customer complaint related to the prop rods or the liftgate on the 2011 Town and Country is from the plaintiffs in this action.
On or on or about May 24, 2012, warranty service was performed on the Vehicle by the defendant/plaintiff by counterclaim, 1035312 Ontario Limited o/a Brampton Chrysler Dodge Jeep ("Brampton Chrysler"), which involved the replacement of both prop rods. Brampton Chrysler retained the prop rods and sent them to FCA Canada's offices in Windsor, where they have since been stored in a climate-controlled environment.
Following the replacement of the prop rods by Brampton Chrysler, the plaintiffs made various requests through their counsel that FCA Canada preserve the subject prop rods for use as evidence in this action and potential examination and testing by an expert. FCA received certain of these requests directly and was advised by counsel and by Brampton Chrysler of requests that were made to them. FCA Canada complied with such requests by continuing to store the prop rods at its Windsor offices.
As I testified at my examination for discovery in this action, FCA Canada has not conducted any destructive testing or analysis on the subject prop rods. FCA Canada's visual inspection of the subject prop rods was not able to reach any conclusions regarding the cause of the alleged failure of the prop rods during the Incident.
At my examination for discovery, plaintiffs' counsel requested an undertaking that FCA Canada cooperate with an expert examination of the subject prop rods if requested. FCA Canada's counsel agreed to this request. I am advised by counsel that plaintiffs' counsel never sought to conduct such an examination of the subject prop rods and no expert examination or analysis of the subject prop rods has been conducted.
If the Dismissal Order is set aside, FCA Canada will be required to defend the plaintiffs' action at trial. Based on my experience and the advice of counsel, I believe that a full and complete defence to a product liability action such as this typically requires expert evidence on the alleged failure of the vehicle and/or the component parts alleged to have been defective. In this case, FCA Canada would likely need to present expert evidence addressing the plaintiffs' allegation that a defect in the subject prop rods caused their alleged failure during the Incident.
Notwithstanding the Dismissal Order, FCA Canada has continued to store the prop rods in the same manner out of an abundance of caution. Despite this, I believe that FCA Canada will be prejudiced in its ability to defend this action due to the passage of time and likely material degradation of the prop rods, which will hinder FCA Canada's ability to obtain an accurate failure analysis of the prop rods for presentation at trial.
I confirm that the assumptions relied upon in Dr. Weishaupt's report are true. In particular, I confirm that:
(a) The subject prop rods were harvested from the Vehicle following the Incident and have been stored in a climate-controlled environment at FCA Canada's offices in Windsor, Ontario since 2012;
(b) The subject prop rods have not been exposed to water or moisture ingress during their storage and have not been routinely exercised during the storage period; and
(c) The exemplar prop rods acquired by ESi from a 2012 Chrysler Town & Country, which were examined by ESi and discussed in Dr. Weishaupt's report, bear the same part number and are representative of the subject prop rods harvested from the Vehicle.
Dr. Weishaupt's report identifies the materials used in the construction of the prop rods through an examination of an exemplar part and concludes that the expected degradation of the materials in the subject prop rods in the time since the Incident would prevent an expert from conducting an accurate failure analysis of the subject prop rods in relation to the Incident.
1 therefore believe, based on my review of Dr. Weishaupt's report and my professional experience at FCA Canada, that FCA Canada's ability to obtain the expert evidence necessary to mount a full and complete defence to the action will be prejudiced if the Dismissal Order is set aside.”
[36] In the Lewis Affidavit, which is similarly worded to the Shaw Affidavit regarding the claim of actual prejudice by the Defendants on this Motion, states the following with respect to the preservation by Brampton Chrysler of the Prop-Rods:
“4. On or on or about May 24, 2012, 103 performed warranty service on the Vehicle which involved the replacement of both prop rods. 103 retained the prop rods and sent them to FCA Canada's offices in Windsor to the attention of Mr. Robert Lackovic, FCA Canada's Litigation and Arbitration Manager. I am advised by counsel and by Mr. Lackovic that the prop rods have since been stored at FCA Canada's offices in Windsor in a climate-controlled environment.
- Following the replacement of the prop rods, the plaintiffs requested through their counsel that 103 preserve the subject prop rods for use as evidence in this action and potential examination and testing by an expert. 103 advised FCA Canada of this request.”
[37] So, unusually for these types of 48.14 proceedings, but crucial in this Motion, is the state of the preservation of these Prop-Rods that the Parties agree have been “retained and preserved” by FCA since at least 2013, a period of almost a decade.
[38] The expert evidence presented by both the Plaintiffs and the Defendants sought to answer the unusual key question on this Motion of “preserved in what state”, to assist in the determination of the key issue on this Motion as to whether the alleged delay in this case by the Plaintiffs created actual prejudice to the Defendants in defending this Action, due to the allegedly physically degraded state of these Prop Rods in the possession of FCA.
Defence
[39] According to the Levy Affidavit, the Defendants served a Statement of Defence on or about May 1, 2014. As noted above, after the Order of Master Muir, the Defendants served the Amended Statement of Defence and Counterclaim against Zamir (the “Defence”).
[40] In the Defence there is a general denial of liability on the basis of merchantability or defect or otherwise, and a denial of the damages claimed by the Plaintiffs, defences relating to the personal conduct of Jacqueline in operating the liftgate, allegations that Zamir was in fact operating the Minivan liftgate at the time of the Injury to Jacqueline, leading to the Counterclaim. The Defendants also plead the relevant defences available under the Insurance Act and the Family Law Act.
[41] As well, the defence makes the following specific denials of liability with respect to the Lift Props, which is a crucial issued on this Motion:
“6. These defendants deny that they designed, developed, tested, assembled, manufactured, licensed, marketed, distributed and sold the liftgate props installed in the plaintiffs; vehicle for profit or at all.
- These defendants plead that the plaintiffs' vehicle was accompanied by an Operator's Manual which included instructions and warnings with respect to operation of the liftgate in the plaintiffs' vehicle, In particular, the warnings and instructions stated as follows:
"WARNING: During power operation, personal injury or cargo damage may occur. Ensure the liftgate travel path is clear. Make sure the liftgate is closed and latched before driving away.
... Gas props support the liftgate in the open position. however, because the gas pressure drops with temperature, it may be necessary to assist the props when opening the liftgate in cold weather."
Conduct of Action and Discoveries
[42] From the evidence before me, it appears that no steps were taken by Alam during his tenure to provide documentary production or the Affidavit of Documents of the Plaintiffs to the Defendants. It also appears that no inspection of the Prop Rods was conducted during Alam’s tenure, despite the flurry of correspondence between Alam, FCA and its counsel over a 3 year period, from almost the date of the Injury.
[43] Levy, upon being appointed counsel on February 9, 2015 expedited production and discovery in this Action.
[44] On April 7th, 2015 he forwarded certain productions to counsel for the Defendants including medical records that had been previously obtained by Alam, as well as other mostly medical documentation obtained by Levy, with the promise of more medical and employment records to follow.
[45] The review of this documentation apparently prompted the Motion before Master Muir to amend the Statement of Defence and to add Zamir as a defendant by Counterclaim. As stated in the Holland Affidavit:
“28. On April 30, 2015, Mr. Zakaib wrote to Mr. Levy advising that the documents produced on April 7, 2015 had disclosed for the first time that Mr. Fazal was operating the plaintiffs' vehicle at the time of the incident and may have operated the liftgate mechanism at the time of Mrs. Fazal's alleged injury. Mr. Zakaib requested the plaintiffs' consent to issuing an amended Statement of Defence including a counterclaim against Mr. Fazal. A copy of this correspondence is attached hereto as Exhibit "T".
I am advised by Mr. Horkins and do verily believe that plaintiffs' counsel did not provide consent to the proposed amendment and that FCA Canada and 103 were required to bring a motion seeking leave to issue an amended Statement of Defence and Counterclaim. I am further advised by Mr. Horkins that the motion was heard on an unopposed basis and granted on September 21, 2015. A copy of the Order of Master Muir, issued September 21, 2015, granting leave to amend FCA Canada and 103's Statement of Defence is attached hereto as Exhibit "U".
FCA Canada and 103 delivered their Amended Statement of Defence and Counterclaim on September 30, 2015, a copy of which is attached hereto as Exhibit "V".”
[46] It appears that Zamir, at the time separately represented by Mini Kohli (“Kohli”) at Hughes Amys, delivered his defence to the Counterclaim on May 2, 2016. Subsequently Zamir was represented by Kendell Cumming (“Cumming”) at Bell, Temple, at the time of the Dismissal Order. Levy’s evidence was that he found out about the Dismissal Order from Cumming at Bell, Temple writing to determine whether releases could now be exchanged as the Action had been dismissed.
[47] The Affidavit of Documents of the Defendant Brampton Chrysler was sworn on August 19, 2016 and the Affidavit of Documents of the Defendant FCA was sworn on August 26th, 2016. Each was served by courier on August 31, 2016.
[48] On September 19, 2016 the Plaintiffs served their Affidavit of Documents, and on September 23, 2016 Zamir served his separate Affidavit of Documents that contained no documents.
[49] One curiosity. The only affidavit of documents for the Plaintiffs in these materials is the same unsworn draft Affidavit of Documents at both Exhibit “O” to the Levy Affidavit and Exhibit “Y” to the Holland Affidavit. Have the Plaintiffs ever served a sworn affidavit of documents?
[50] The Examinations for Discovery were conducted as follows, and the scheduling of those examinations appeared drama free, from the record before me:
(a) The examination for discovery of Shaw on behalf of FCA was held on October 6, 2016.
(b) The examination for discovery of Lewis on behalf of Brampton Chrysler was held on October 13, 2016.
(c) The examination for discovery of Jacqueline was held on October 13, 2016.
(d) The examination for discovery of Zamir was held on October 13, 2016.
[51] It is the evidence of Holland that on November 3, 2016 charts of the undertakings, questions taken under advisement, and refusals from the examinations for discovery of Zamir and Jacqueline were sent to Levy.
[52] It is Holland’s evidence that only partial answers to the plaintiffs' undertakings, under advisements, and refusals were delivered by the Plaintiffs and that FCA delivered its answers to undertakings on August 3, 2017.
[53] Levy does not specifically dispute these statements in the Levy Affidavit. It is not clear from the Levy Affidavit, and the Levy Transcript, what the Plaintiffs’ position is on the completeness of the answering of the undertakings of the Plaintiffs, when any of the Plaintiffs’ answers to undertakings were delivered, and what remains outstanding.
[54] On December 19, 2017, the parties attended a joint mediation of the Action and Jacqueline’s SABS Claim conducted by Marcela Saitua that was not successful with respect to the Action, but apparently resolved the SABS Claim (the “Mediation”).
[55] The Mediation occurred more than a year after completion of discoveries, 3 years and 8 months after the commencement of the Action, and 5 years and 7 months from the date of the Injury.
The Change of Venue Debate and possible Zamir Summary Judgment Motion
[56] At this point the evidence regarding the progress of the Action appears to diverge.
[57] In the Holland Affidavit the evidence of Holland for this period from the Mediation on December 19, 2017 to August of 2020, when Levy first wrote to counsel for the Defendants regarding the setting aside of the Dismissal Order:
“41. I am advised by Mr. Horkins and do verily believe, based on my review of the correspondence between counsel described below, that the plaintiffs did not take any steps in this action following the unsuccessful mediation in December 2017 and did not set the action down for trial or seek an order extending the deadline to do so prior to the five-year anniversary of the action being commenced.
On December 20, 2017, Mr. Horkins emailed Mr. Levy asking whether Mrs. Fazal was able to settle her SABS claim at the mediation on December 19, 2017 and, if so, what the amount of the settlement was. A copy of this email is attached hereto as Exhibit "GG".
On or around December 22, 2017, the plaintiffs' counsel, Mr. Levy, requested by letter that the parties consent to transfer the action from Toronto to Oshawa. Mr. Levy noted that the action "technically [ ... ] should be transferred to Cobourg" but that Oshawa would be a "better venue" due to "the location of the parties, witnesses, etc." and "the advantage of getting us much earlier trial dates than what is available in Toronto." A copy of the letter dated December 22, 2017 is attached hereto as Exhibit "HH".
Mr. Horkins responded to Mr. Levy by email on the same day and inquired as to the connection between the action and Oshawa, noting that he was not prepared to recommend consenting to a transfer to Oshawa unless Mr. Levy could offer a compelling reason to do so. Mr. Horkins further noted that the case may not be ready to set down for trial given the plaintiffs' outstanding undertakings and the fact that "ABC Corporation" had never been properly named or served with the Statement of Claim. Mr. Horkins also noted that Mr. Levy had not responded to his email of December 20, 2017 regarding the settlement of Mrs. Fazal's SABS claim. A copy of this correspondence is attached hereto as Exhibit "Il".
After receiving no answer from plaintiffs' counsel, Mr. Horkins followed up on or around January 3, 2018. A copy of this correspondence is attached hereto as Exhibit "JJ".
46 Mr. Horkins sent a further follow up to Mr. Levy on January 16, 2018 requesting that he provide the amount of the settlement which Mrs. Fazal was obligated to provide. A copy of this correspondence is attached hereto as Exhibit "KK".
47 Mr. Levy responded on January 17, 2018, advising that Mrs. Fazal's SABS claim had settled for $300,000 and that he had asked Mrs. Fazal's counsel in the SABS claim, Mr. Alam, to forward a copy of the settlement disclosure notice. Mr. Levy also asked Mr. Horkins to reconsider his proposal regarding transferring the action to Oshawa noting that the place of the accident was "east of Oshawa" and that he "thought Oshawa just made more sense than Belleville." Mr. Levy advised that if FCA Canada and 103 resisted the plaintiffs' request to transfer the action to Oshawa, he would bring a motion to have the action transferred to Oshawa.
Mr. Horkins responded to Mr. Levy's email on January 17, 2018, noting that the action had no connection to Oshawa and that the location of the Incident was over 80 km east of the Durham courthouse. Mr. Horkins advised that he could not recommend consenting to transfer the action to a court location that had no connection to the action but offered to recommend consenting instead to a transfer of the action to Cobourg or Belleville, based on their proximity to the location of the Incident, or to Brampton or Windsor where the respective parties are resident. A copy of Mr. Levy's January 17, 2018 email and Mr. Horkins' response of the same date is attached hereto as Exhibit "LL".
I am advised by Mr. Horkins and do verily believe that plaintiffs' counsel never responded to his offer to consent to a transfer of the action to Cobourg, Belleville, Brampton, or Windsor and never brought a motion seeking to transfer the action to Oshawa or any other venue.
Mr. Horkins followed up with Mr. Levy on May 2, 2018, noting that he had yet to receive the settlement disclosure notice in respect of Mrs. Fazal's SABS claim settlement. Finally, Mr. Horkins noted that he had heard nothing further from Mr. Levy regarding the proposed transfer of venue and asked Mr. Levy to confirm if the transfer was still being pursued. A copy of this correspondence is attached hereto as Exhibit "MM".
51 Mr. Horkins followed up with Mr. Levy again on May 17, 2018, noting that he had not received any response to his email of May 2, 2018. A copy of this correspondence is attached hereto as Exhibit "NN".
Mr. Horkins followed up with Mr. Levy again on October 15, 2018, noting that he had not received any response to his emails of May 2 and 17, 2018. A copy of this correspondence is attached hereto as Exhibit "OO".
Mr. Levy emailed Mr. Horkins on November 4, 2018 acknowledging that it had been "a while since you heard from us" and asking to set up a call. I am advised by Mr. Horkins and do verily believe that he had a telephone conversation with Mr. Levy on November 14, 2018. I am further advised by Mr. Horkins that plaintiffs' counsel had no substantive update to provide on the call, aside from confirming that the plaintiffs still intended to pursue their request to transfer the action to Oshawa.
Following the call, Mr. Horkins emailed Mr. Levy confirming their discussion and advising that he would await hearing from Mr. Levy regarding: (a) Mr. Horkins' outstanding request for a copy of the settlement disclosure notice in respect of Mrs. Fazal's SABS claim settlement, and (b) the plaintiffs' intended motion to transfer the action to Oshawa. Mr. Horkins further noted that FCA Canada and 103 remained ready and wiling to discuss any outstanding issues required to ready the action for trial. A copy of the email from Mr. Horkins to Mr. Levy summarizing their November 14, 2018 phone call, including emails exchanged on November 4, 2018 regarding scheduling the call, is attached hereto as Exhibit "PP".
I am advised by Mr. Horkins and do verily believe that neither he nor anyone else at Cassels received any further communications from plaintiffs' counsel after the November 14, 2018 call and his confirming email until August 2020, more than one year after the action was dismissed for delay, as detailed below.
Mr. Fazal's Change of Defence Counsel
- On November 26, 2018, Mr. Fazal delivered a Notice of Change of Lawyer advising the parties of his retainer of Kendall J. Cumming of Bell Temple LLP to replace Ms. Kohli of Hughes Amys LLP as his counsel for the defence of the counterclaim. A copy of the correspondence from Mr. Cumming and enclosed Notice of Change of Lawyer is attached hereto as Exhibit "QQ".”
[58] In the Levy Affidavit, Levy’s evidence of the progress of the Action in this period is as follows:
“18. On December 19, 2017 the within action was globally mediated before mediator, Marcela Saitua, and did not resolve. In addition to the within tort action, the mediation also included accident benefits which was resolved.
On December 22, 2017 I emailed counsel and attached a letter advising of my intention to move the action from the Toronto Courthouse and requested the parties consent to do same. Attached hereto and marked as Exhibit G is a copy of the letter to my affidavit.
On January 16, 2018, my office served records of Dr. Vidry on all counsel.
On November 14, 2018 I participated in a teleconference with counsel for the Defendants, Mr. Horkins. We mainly spoke about three items:
Settlement discussions
A copy of the Settlement Disclosure Notice following the settlement of accident benefits
A motion to transfer the within action from Toronto to a more appropriate Courthouse
Attached hereto and marked as Exhibit H is a copy of Mr. Horkins' email thread from November 4 to November 14, 2018.
This action was issued at the Toronto Courthouse and I intended to transfer the action to a different Courthouse. I was initially unsure which Courthouse to transfer this action to and even mentioned this to Mr. Horkins. The Plaintiffs live in Brampton and the majority of her treating practitioners live in Brampton and the surrounding area however the trial backlog at the Brampton Courthouse at the time was significant. I was also very mindful that the subject incident (liftgate malfunction) occurred in Colborne, Ontario, and that the Defendants' headquarters are located in Windsor, Ontario.
The timing of the motion to transfer was also complicated given the Defendant by Counterclaim was considering a Summary Judgment motion.
On January 8, 2019 I received correspondence from counsel for the Defendant by Counterclaim. The correspondence includes without prejudice comments but also contemplation of moving on a Summary Judgment motion as against the Defendants who had not responded to earlier requests from counsel. Attached hereto and marked as Exhibit I is a redacted copy of Mr. Cummings' letter dated January 8, 2019.
On January 14, 2020 counsel for the Defendant by Counterclaim requested a status of negotiations between the parties and requested that the action be set down for trial. Attached hereto and marked as Exhibit J is a copy of Mr. Cumming's letter dated January 14, 2020.
All schedule a productions are available including updated records. This includes: accident benefits file, OHIP Summary pre-dating the subject incident by three years, along with medical records of the Plaintiff including but not limited to the Plaintiff's treating practitioners; family physician, physical therapist, hospital records, TMJ assessor, psychologist, and prescription summary. There is also income tax returns dating back to 2009.”
[59] Levy’s evidence was that they had reached an impasse on the change of venue to Oshawa issue. The Defendants’ evidence is that the Defendants’ were agreeable to a move to Cobourg, not Oshawa, and communicated that in January 2018 and November 2018, but had not heard anything from Levy regarding this offer. In any event it appears clear that, despite the discussion, no change of venue Motion from Toronto was ever brought by the Plaintiffs before the Dismissal Order.
[60] In addition there was discussion with the Defendant by Counterclaim Zamir, and his counsel at both Hughes, Amys (Kohli), and then Bell, Temple (Cumming), regarding Zamir bringing a summary judgment motion on the Counterclaim, but again, from the record before me no such Summary Judgment motion was brought prior to the Dismissal Order, or subsequently.
[61] The Attached as Exhibit Q to the Levy Affidavit are medical reports mentioned in his Affidavit, but it is not at all clear to me what the state of the production of this documentation was, whether the Plaintiffs’ position is that they have fulfilled their undertakings, what the position of the Plaintiffs was on the state of fulfilment of the Defendants’ undertakings from the Fall 2016 discoveries, some 6 years ago, or whether there was any attempt by the Defendants or the Plaintiffs to bring a Motion to compel answers to undertakings and refusals. I will deal with this issue more specifically below.
[62] Other than what is specifically described above, what else occurred in this time period from, effectively, the discoveries in 2016 and the Mediation in December 2017 onward to advance this Action, other than the venue debate and the confirmation of the settlement of the SABS Claim, is opaque.
[63] In the Levy Transcript, Levy’s applicable testimony on the period is as follows with respect to the change of venue, the possible Summary Judgment Motion by Zamir, settlement discussions and the Plaintiffs’ desire to continue the action in the time period between he Mediation on December 2017 and the Dismissal Order in May of 2019:
“142 Q. And following that unsuccessful mediation, what were the steps that remained, that you needed to complete, before you could set the action down for trial?
A. Well, there were -- you know, I suppose there were three items that still remained. One of them was venue. One of them was the summary judgment motion that the defendant by counterclaim's counsel had told us that she was being instructed to bring. And then the third one was, as I recall, and this is sort of borne out in your own materials, your own consent or position on whether the case was ready to set down for trial and, you know, your view that there may have been undertakings outstanding and that sort of thing and your suggestion that the case was potentially not ready to yet be listed.
143 Q. And can you tell me generally what progress was made toward completing the steps that you just listed after the mediation?
A. Well, there were a number of discussions and e-mails, most of which I think have made their way into the materials in one form or other, about discussions that you and I had, e-mails that you and I exchanged, over the course of '18 and early '19, about those issues. And so that was as far as venue was concerned. And I think those -- you know, those communications probably speak for themselves.
The summary judgment motion was another matter. And we, I think both you and I, were under the impression that this motion was forthcoming. Certainly all communication indicated that. And that went up, you know, into '19. And I think it was really the beginning of 2020, if I am remembering the dates correctly, when it finally became clear that the defendant by counterclaim had, for whatever reason, chosen to abandon the notion of bringing a summary judgment motion.
148 Q. And is the only reason that you wanted to move the case to Oshawa because you had a view that an earlier trial date could be obtained there?
A. It seemed like a sensible compromise. Brampton, at the time, was -- you know, Toronto and Brampton, at the time, were sort of particularly overwhelmed and backlogged. And the venue of the accident didn't seem to really be convenient for anybody. So a practical solution might have been to go to Oshawa, which is, you know, in that general part of the world, but not quite as far as Cobourg, and didn't seem to have as bad a trial backlog.
149 Q. And later, in January 2018, I had raised concerns with Oshawa being an appropriate venue. You took the position that if my clients were going to resist your request, that you would bring a motion to transfer the case to Oshawa. Does that align with your recollection of how that played out?
THE WITNESS: Look, if that is what it says, that is what it says. Obviously I would have preferred not to have to bring a motion, and just to, you know, do these things on consent. Not everything needs to be a fight. Right? I mean, if we were able to do these things on consent, obviously that would have been preferable.
MR. HORKINS: 150 Q. And, ultimately, my clients did not consent to transfer the case to Oshawa. Correct?
A. That is what you told me.
151 Q. And your clients never brought a motion to transfer the case to Oshawa. Correct?
A. Correct.
156 Q. Okay. So you never advised me that your clients would agree to any of the four 19 proposed alternative venues. Correct?
A. I think you have cited and quoted all of the e-mails already, so ...
157 Q. Do you know why there was never any agreement to the four other venues I proposed?
A. Well, I mean, again, if nothing else, we still had the summary judgment motion lurking out there and hanging over our heads. And my expectation was that that was going to be coming at some point, and was going to have to get dealt with. So --
158 Q. But you never responded to me, saying, "Well, I can't agree to this until this summary judgment thing is resolved." Correct?
A. I don't believe so, no.
163 Q. A third thing that was happening after the mediation were settlement discussions. Which I won't ask too much about, because they are privileged. But, essentially, my clients had made an offer shortly after the mediation, and I was following up with you for a response, but I never got one. Is that fair?
A. Well, my recollection was that the offer that was made was the same offer that had been rejected at the mediation. And so, quite frankly, there, you know, wasn't a lot to say.
164 Q. But you didn't even say that. Right? Whether or not -- I am not going to comment on what the offer was and whether it was the same as at the mediation, because that is privileged, to my mind. But the point is you didn't even respond to say, "We are rejecting this offer for that reason. " Correct?
165 Q. Yes. But I am asking: Was there ever a response to the settlement offer after the mediation?
THE WITNESS: Well, Chris, there is no doubt that, when you and I spoke, you would have raised it. And that is what I would have said to you, because there was no movement, or certainly no movement of consequence, if any, in the offers. And so, you know, from our perspective, there wasn't anything to talk about.
166 Q. Yeah. So let's go there, because that is what I have got next. So I am going to pull up -- this is exhibit PP from Ms. Holland's affidavit in our motion record. And so we will go down to the bottom of this e-mail chain, where it starts, November 4, 2018, you write to me, saying: "Hi, Chris. I know it has been a while since you heard from us. Do you want to set up a call?" (as read) So you are acknowledging here that you haven't contacted us for some time and are looking to set up a phone call?
A. Okay.
167 Q. And then the next few e-mails up the chain relate to scheduling the call. Ultimately, we settle on November 14 at 3:00 p.m. And then you say, in your e-mail copying your assistant at the bottom of the first page here: "Claudeen, please diarize for me. " (as read) So is that typical, in your practice, that you can e-mail your assistant to ask her to diarize things like calls, meetings and other important dates?
A. Sure.
168 Q. And could you have asked her at any point to diarize the five-year deadline for the dismissal of this claim?
A. I can send any e-mails at any time.
169 Q. Okay. And you would expect that, you know, in this type of an e-mail, that if you asked her to diarize a date, she would do it?
A. Yes.
170 Q. We ultimately had that call on November 14, 2018. And my recollection is you called me, and other than confirming that your clients still were planning to bring a motion to transfer the case to Oshawa which was never brought, you didn't have any updates on any of the outstanding items we discussed. And that is reflected in my confirming e-mail, after the call, where I say: "I will await hearing from you on the following, " (as read) With the three bullet points. And I can tell you the blacked-out portion is with respect to the settlement offer that we discussed. So does that align with your recollection of the call?
A. Yeah. I mean, from a big-picture perspective, sure.
171 Q. And we never heard from you about any of those outstanding issues after this e-mail?
A. Okay.
172 Q. And also in this e-mail, in the bottom, I say that we are ready and willing to discuss any other outstanding issues required to ready this case for trial, in the event we can't reach a resolution. We never heard from you about any other outstanding issues. Correct?
A. Well, again, we were both hearing from the defendant by counterclaim about the summary judgment motion, which to me was definitely an issue that had to be addressed.
173 Q. But we never heard from you about that issue between this e-mail and the dismissal of the case for delay. Correct?
A. You are probably right about that
174 Q. And, in fact, we never received any communication from you or your firm after my e-mail to you on November 14, 2018, until August 19, 2020, when you reached out asking for consent to set 2 aside the dismissal-for-delay order. Correct?
A. I believe that is correct.
176 Q. I mean, I ask because you say, in your affidavit, your evidence is that you believe that the Plaintiffs always intended to prosecute this claim. So what is the basis for that claim?
A. My understanding of the nature and merits of their case. The severity of her injuries. My communications with her all along. The instructions that she gave me at the mediation regarding your settlement offer. That gave me a pretty clear picture of her intentions.
177 Q. Did the Plaintiffs instruct you to set the action down for trial at any time after the mediation?
THE WITNESS: I have no recollection of that specific instruction. And to some extent, nor would I have expected it. Clients are often not familiar with, you know, the details of procedure.
181 Q. What is the basis -- I already asked that. Between the mediation and August 19, 2020, did the Plaintiffs ever express to you their intention to prosecute the claim to trial?
182 Q. So after the mediation, and before August 19, 2020, did the Plaintiffs ever express to you that they intended to prosecute the claim to trial?
A. I wouldn't say they used those exact words. But yes.
183 Q. And when did that happen?
A. I can't answer that.
184 Q. And you can't answer it because you don't recall, or you –
A. Because I don't recall.
185 Q. Okay. So you don't recall any specific discussion where they said that they intended to maintain this claim and prosecute it to trial?
A. Chris, I will tell you that that is the sort of conversation that almost never takes place.”
Dismissal Order and Activities after issuance of Dismissal Order
[64] Levy’s evidence regarding his becoming aware of the Dismissal Order and steps taken afterward was as follows:
“21. Due to inadvertence my office did not serve and file a trial record within five years of the subject action's issuance.
My office did not diarize the five year anniversary for this claim. This unfortunately did not occur due to inadvertence when my office assumed carriage of the within action from Alam Law Office whom was the initial lawyer for the Plaintiffs and issued the Statement of Claim. Typically my office diarizes the five year anniversary when we issue a Statement of Claim, but have to remember to check when we assume carriage of an already issued action.
Despite the omission to diarize and serve a trial record within five years of the subject claim's issuance, the Plaintiffs have always intended to prosecute this claim.
When the pandemic began in March 2020 my office and my practice was not fully prepared for remote work only. My office is located in the downtown Toronto core and attendance in-person is very limited due to social distancing and government protocols limiting capacity.
During the pandemic my office and practice also ran into a number of inefficiencies due to the majority of staff having to work remotely.
Since around the Fall of 2020 my practice has adapted relatively well to working remotely and communicating via email on files but this still remains a challenge.
I did not know the Registrar issued an administrative dismissal order on May 15, 2019 until August 19, 2020. That is when I reviewed a letter dated August 10, 2020 by counsel for the Defendant by Counterclaim indicating the action had been administratively dismissed.
I attempted to explain what occurred to all counsel and seek consent from the Defendants to set aside the dismissal order but counsel for the Defendants advised on August 25, 2020 they would likely oppose it. Attached hereto and marked as Exhibit K is a copy of the email thread between me and Mr. Horkins from August 19, 2020 to August 25, 2020.
On January 20, 2021 I notified LawPro of the Registrar's administrative dismissal.
On February 12, 2021 LawPro retained Louis Covens of Bruder Springstead L.L.P.
On February 22, 2021 Mr. Covens served a Notice of Motion on the parties to set aside the Registrar's administrative dismissal order dated May 15, 2019. Attached hereto and marked as Exhibit L is a copy of the Affidavit of Service. A copy of the Notice of Motion is attached at Tab 1 of the motion record.
On March 30, 2021 a case conference was held before Master Brott who scheduled the motion for December 2, 2021 along with a Timetable. The Endorsement by Master Brott dated March 30, 2021 is attached at Tab 9 of the Motion Record.
Between March 2020 to March 2021, my mother had not been well. She was diagnosed with a brain tumour in March 2020 and passed in March 2021. From the onset of her diagnosis to her passing I focused much attention on her health. I was personally taking her to medical appointments, radiation treatments, chemotherapy, caring for her, and visiting her at her home in Thornhill, Ontario. I have a good support staff and view the inadvertence of not serving and filing a trial record within the five year anniversary of the claim's issuance as mere inadvertence. My mother's health and my attention to her is not the cause of what led to the Registrar's dismissal order but something that likely contributed to me not following up on the within action or giving more attention than it deserved. I did not want to discuss this for privacy reasons but Mr. Covens, counsel for LawPro, has advised it is relevant to the motion and what occurred between March 2020 to now.”
[65] On the lead up to the Dismissal Order, Holland’s evidence on this issue is as follows:
“57. On or around May 15, 2019, the action was dismissed by the court pursuant to rule 48.14 of the Rules of Civil Procedure, because it had not been set down for trial within five years of being commenced and the plaintiffs had not obtained an order extending the time to set the action down for trial (the "Dismissal Order"). Cassels received a copy of the Dismissal Order on or about May 22, 2019. A copy of the Dismissal Order is attached hereto as Exhibit "RR".
I am advised by Mr. Horkins and do verily believe that the plaintiffs did not contact Cassels and made no attempt to address the Dismissal Order until approximately fifteen months after it was issued and only in response to correspondence from Mr. Fazal's defence counsel, as described below.
On August 10, 2020, Mr. Fazal's defence counsel, Mr. Cumming, wrote to plaintiffs' counsel and Cassels noting that the action had been dismissed for delay and proposing to "take steps to formally bring litigation to an end." I am advised by Mr. Horkins and do verily believe that he understood this to be a request by Mr. Cumming that the parties enter into a mutual release. A copy of Mr. Cumming's letter dated August 10, 2020 is attached hereto as Exhibit "SS".
On August 19, 2020, in response to Mr. Cumming's letter, plaintiffs' counsel wrote to Mr. Horkins and Mr. Cumming stating that he had only recently become aware of the Dismissal Order and that "it goes without saying" that his clients always intended to move the action forward. Mr. Levy requested the parties' consent to having the Dismissal Order set aside and the matter being "restored" to the trial list (despite the matter never having been set down for trial or placed on any such list). Mr. Levy also noted, incorrectly, that he had not received any response regarding his proposal to transfer the action to Cobourg (when, in fact, as noted above, he had never proposed to transfer the action to Cobourg but rather, had proposed a transfer to Oshawa and had failed to respond to Mr. Horkins' proposal that a transfer be sought to Cobourg, Belleville, Brampton or Windsor instead). A copy of this correspondence is attached hereto as Exhibit "TT".
On August 19, 2020, in response to Mr. Cumming's letter, plaintiffs' counsel wrote to Mr. Horkins and Mr. Cumming stating that he had only recently become aware of the Dismissal Order and that "it goes without saying" that his clients always intended to move the action forward. Mr. Levy requested the parties' consent to having the Dismissal Order set aside and the matter being "restored" to the trial list (despite the matter never having been set down for trial or placed on any such list). Mr. Levy also noted, incorrectly, that he had not received any response regarding his proposal to transfer the action to Cobourg (when, in fact, as noted above, he had never proposed to transfer the action to Cobourg but rather, had proposed a transfer to Oshawa and had failed to respond to Mr. Horkins' proposal that a transfer be sought to Cobourg, Belleville, Brampton or Windsor instead). A copy of this correspondence is attached hereto as Exhibit "TT".
On August 25, 2020, Mr. Horkins responded to Mr. Levy, noting that he had had no contact from plaintiffs' counsel since the November 14, 2018 phone call described above and that he had never heard from Mr. Levy regarding the outstanding items discussed on that call in the 21 months since. Mr. Horkins stated that Mr. Levy's claim to having only recently become aware of the Dismissal Order was difficult to believe since the court would have sent the Dismissal Order to all parties and, in any event, it would have been known to Mr. Levy and his firm that the action would be dismissed for delay if steps were not taken to set the matter down or seek an order extending the deadline prior to April 7, 2019 since the five-year deadline for automatic dismissal was prescribed by Rule 48.14(1) of the Rules of Civil Procedure.
62 Mr. Horkins also noted that the plaintiffs had taken no steps to advance or set the action down for trial in the 15 months since the Dismissal Order had been issued and that the plaintiffs had taken no substantive steps to advance the action since the December 2017 mediation. Mr. Horkins stated that the passage of 32 months without any substantive steps taken to ready the action for trial suggested the plaintiffs had little or no intention of pursuing their claims at trial.
- Finally, Mr. Horkins asked Mr. Levy to advise:
(a) Whether his firm or Mr. Alam's firm had received the Dismissal Order and, if so, when?
(b) Whether his firm had a system in place to diarize the five-year deadline under Rule 48.14 and/or whether any specific steps were taken to diarize the deadline in respect of this action?
(c) What explanation the plaintiffs intended to provide for the 32-month delay in advancing he action following the December 2017 mediation and the 15-month delay in addressing the Dismissal Order?
Mr. Horkins noted that the answers to these questions would assist with FCA Canada and 103's consideration of their position on the plaintiffs' request for consent to set aside the Dismissal Order. Mr. Horkins further advised that, if the plaintiffs were ready to deliver their Motion Record in respect of the motion to set aside the Dismissal Order, he would consider it and seek instructions. A copy of this correspondence is attached hereto as Exhibit "UU".
I am advised by Mr. Horkins and do verily believe that he did not receive any response from Mr. Levy or his firm to his email dated August 25, 2020.
I am further advised by Mr. Horkins and do verily believe that it was not until February 22, 2021 that the plaintiffs served their Notice of Motion to set aside the Dismissal Order.”
[66] The Lewis Affidavit and the Shaw Affidavit, except as set out above regarding the preservation of the Prop-Rods, have no particular additional evidence related to the progress of the Action.
[67] Accordingly, other than is set out specifically above, the Levy Affidavit does not provide an explicit explanation of what other steps were being taken to advance the Action, other than the change of venue issue, the possible summary judgment motion by Zamir, discussion of a possible settlement and the provision of one medical report (such as the answering of undertakings, or other steps) in the almost 4 years from the completion of discoveries, and the three years from the date of the Mediation in December of 2017 to August 19, 2020 the date that Levy states he had become aware of the Dismissal Order.
[68] I will deal subsequently with the evidence before me relating to:
a) why Levy was not aware that the Dismissal Order had been issued on May 15, 2019, 15 months earlier;
b) why LawPro was notified by Levy on January 20, 2021, of the Dismissal Order, almost 6 months AFTER Levy was aware of the Dismissal Order, and more than 20 months from the date of the Dismissal Order.
[69] Once LawPro was aware of the possible claim, and appointed Covens, this Motion proceeded very expeditiously, a Notice of Motion being served within 10 days of Covens being appointed, and within 33 days after LawPro being advised by Levy, with the first Long Motion scheduling conference before AJ Brott being held within 36 days of the service of the Notice of Motion. The Notice of Motion was served 187 days after Levy testified that he became aware of the Dismissal Order, and 649 days from the date of the Dismissal Order.
[70] As set out at the beginning of the Endorsement, this Long Motion was timetabled by AJ Brott, and the parties expeditiously completed their very extensive, very well prepared materials for a December hearing, which due to Judicial availability issues, was instead heard by me in February, 2022, but not as a result of any conduct of any of the Parties.
[71] But other than the general explanations regarding the impact of COVID on his practice and the issue with his mother’s health, there is no explanation as to what was being done on this action, and whether Mr. Levy had any assistance from juniors in this time period.
[72] I note that on the Notice of Change of Lawyer, both Levy and Sandra Train were appointed as Lawyers for the Plaintiffs. Orit Winkler, a Law Clerk at Howie Sacks & Henry appears cc’d on a lot of the correspondence attached as exhibits to the Levy Affidavit, along with Claudeen Hudson, legal assistant to Levy, who is asked on occasion to diarize events, such as setting up a call in November of 2018. Train, Winkler and Hudson still appear to be working with Levy. Winkler served the Affidavit of Documents of the Plaintiffs in this Action.
[73] Levy’s evidence on this particular issue was as follows in the Levy Examination at Q 88-93:
“Q. And the notice of change also notes that Sandra Train was appointed counsel of record to the Plaintiffs?
A. It does.
Q. And she is an associate in your office?
A. She is.
Q. Did she in fact work on this file
A. NO.
Q. I believe you also had a law clerk, Ms. Winkler, assisting you on the file.
A. Yes.
Q. And what were her responsibilities?
A. So she had full clerking duties, which involved, you know, everything from getting records to preparing drafts of a mediation memo, answering undertakings. Those kind of things.
Q. Did you have any other lawyers or law clerks working on the file at your firm? A. No.”
III) Law and Analysis
[74] The Court has considered all materials and arguments raised by all parties on this Motion. Any failure by the Court to refer to specific arguments and materials raised does not reflect that the Court has not considered those arguments. Where quotations are underlined in these reasons, that emphasis has been added by me.
[75] Rule 48.14 sets out rules regarding administrative dismissal of actions. The relevant parts of the Rule to this Motion are:
Dismissal of Action for Delay
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. O. Reg. 170/14, s. 10; O. Reg. 487/16, s. 8 (1).
Exceptions
(1.1) Subrule (1) does not apply to,
(a) actions placed on the Commercial List established by practice direction in the Toronto Region; and
(b) actions under the Class Proceedings Act, 1992. O. Reg. 487/16, s. 8 (2).
Timetable
(4) Subrule (1) does not apply if, at least 30 days before the expiry of the applicable period referred to in that subrule, a party files the following documents:
- A timetable, signed by all the parties, that,
i. identifies the steps to be completed before the action may be set down for trial or restored to a trial list, as the case may be,
ii. shows the date or dates by which the steps will be completed, and
iii. shows a date, which shall be no more than two years after the day the applicable period referred to in subrule (1) expires, before which the action shall be set down for trial or restored to a trial list.
- A draft order establishing the timetable. O. Reg. 170/14, s. 10.
Status Hearing
(5) If the parties do not consent to a timetable under subrule (4), any party may, before the expiry of the applicable period referred to in subrule (1), bring a motion for a status hearing. O. Reg. 170/14, s. 10.
(6) For the purposes of subrule (5), the hearing of the motion shall be convened as a status hearing. O. Reg. 170/14, s. 10.
(7) At a status hearing, the plaintiff shall show cause why the action should not be dismissed for delay, and the court may,
(a) dismiss the action for delay; or
(b) if the court is satisfied that the action should proceed,
(i) set deadlines for the completion of the remaining steps necessary to have the action set down for trial or restored to a trial list, as the case may be, and order that it be set down for trial or restored to a trial list within a specified time,
(ii) adjourn the status hearing on such terms as are just,
(iii) if Rule 77 may apply to the action, assign the action for case management under that Rule, subject to the direction of the regional senior judge, or
(iv) make such other order as is just. O. Reg. 170/14, s. 10.
Party Under Disability
(8) Subrule (1) does not apply if, at the time the registrar would otherwise be required under that subrule to dismiss an action for delay, the plaintiff is under a disability. O. Reg. 170/14, s. 10.
Effect of Dismissal
(9) Rules 24.03 to 24.05 (effect of dismissal for delay), other than subrule 24.04 (1.1), apply to an action dismissed under subrule (1). O. Reg. 170/14, s. 10; O. Reg. 487/16, s. 8 (4).
Setting Aside
(10) The dismissal of an action under subrule (1) may be set aside under rule 37.14. O. Reg. 170/14, s. 10.
[76] The relevant portions of Rule 37.14 state:
37.14 (1) A party or other person who,
(a) is affected by an order obtained on motion without notice;
(b) fails to appear on a motion through accident, mistake or insufficient notice; or
(c) is affected by an order of a registrar,
may move to set aside or vary the order, by a notice of motion that is served forthwith after the order comes to the person’s attention and names the first available hearing date that is at least three days after service of the notice of motion. R.R.O. 1990, Reg. 194, r. 37.14 (1); O. Reg. 132/04, s. 9.
(2) On a motion under subrule (1), the court may set aside or vary the order on such terms as are just. R.R.O. 1990, Reg. 194, r. 37.14 (2).
Order Made by Registrar
(3) A motion under subrule (1) or any other rule to set aside, vary or amend an order of a registrar may be made to a judge or associate judge, at a place determined in accordance with rule 37.03 (where motions to be brought). R.R.O. 1990, Reg. 194, r. 37.14 (3); O. Reg. 689/20, s. 26; O. Reg. 711/20, s. 7; O. Reg. 383/21, s. 15
[77] Both parties argued this motion on the basis of the well known factors set out in the decision of Master Dash in Reid v. Dow Corning Corp (2011), 11 C.P.P. (5th) 80, that were (“Reid v. Dow Corning”) adopted by the Court of Appeal in Scaini v. Prochnicki, 2007 ONCA 63, 85 O.R. (3d) 179 (“Scaini”) and subsequent cases (the “Reid v. Dow Corning Factors”).
[78] The Plaintiffs cite the decision of Emery J. in Muscaj v. Urszula, [2018] O.J. No. 4820 (“Muscaj”) as setting out the relevant test quoting Peppall, J.A. in Prescott v. Barbon, 2018 ONCA 504 (“Prescott”):
46 The relevant principles the court is to apply are set out by Master Dash in Reid v. Dow Corning Corp (2011), 11 C.P.P. (5th) 80. Although that decision received other treatment at the Divisional Court level, those principles have been preserved and remain the four-part test as approved by the Court of Appeal in Scaini v. Prochnicki, 2007 ONCA 63. These four factors, which have become known as the "Reid factors", have most recently been approved and applied by the Court of Appeal in Prescott v. Barbon, 2018 ONCA 504.
47 In Prescott, Justice Pepall describes the contextual approach for applying the Reid factors in the following way:
[14] 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 Page: 7
(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?
[15] This is not a rigid, one-size fits all test. Rather, a contextual approach is required: Scaini, at paras. 23-25. Prior to Scaini, a plaintiff had to satisfy each of the four elements. Thereafter, courts were to consider and weigh all relevant factors to determine the order that is just. See also Marché d'Alimentation Denis Theriault Ltee. v. Giant Tiger Stores Ltd., 2007 ONCA 695, 87 O.R. (3d) 660. In Hamilton (City) v. Svedas Koyanagi Architects Inc ., 2010 ONCA 887, 104 O.R. (3d) 689, at para. 23, Laskin J.A. observed that the overriding objective is to achieve a result that balances the interests of the parties and takes account of the public's interest in the timely resolution of disputes. The four Reid factors provide a structured approach to achieving this result.
[79] The Defendants in their factum start with the Reid v. Dow Corning Factors, which they reorder and reword as:
a) That the defendants will not be prejudiced in setting aside the Dismissal Order;
b) That there is a reasonable explanation for the plaintiffs' delay;
c) That the plaintiffs always intended to set the case down for trial, but missed the deadline to do so through inadvertence; and
d) That the plaintiffs moved forthwith to set aside the Dismissal Order.
[80] The actual quote from Master Dash in Reid v. Dow Corning is linked to the Defendants’ Factum:
“40 While I agree there must be some balancing of interests, I find, upon review of the caselaw presented to me, that in determining whether to set aside a registrar's order dismissing an action made under rule 48.14(3), a plaintiff must satisfy four criteria. If the plaintiff fails to satisfy any one of these criteria, the registrar's order will stand.
41 The four criteria to be met are as follows:
Explanation of the Litigation Delay: The plaintiff must adequately explain the delay in the progress of the litigation from the institution of the action until the deadline for setting the action down for trial as set out in the status notice. She must satisfy the court that steps were being taken to advance the litigation toward trial, or if such steps were not taken to explain why. For example the complexities of the case and the number of parties may have required significantly more time to move the action toward trial, or the delay was caused by interlocutory matters or appeals. The plaintiff could explain that the action was stalled due to the inattention or negligence of her solicitors which was contrary to her own instructions or expectations. It is absolutely essential that the plaintiff lead satisfactory evidence that she personally always intended the action to proceed to trial without delay, that she did not assent to the delay, and that she always reasonably assumed it was so proceeding or made appropriate inquiries of her solicitors. If either the solicitor or the client made a deliberate decision not to advance the litigation toward trial then the motion to set aside the dismissal will fail.
Inadvertence in Missing the Deadline: The plaintiff or her solicitor must lead satisfactory evidence to explain that they always intended to set the action down within the time limit set out in the status notice, or request a status hearing, but failed to do so through inadvertence. In other words the penultimate dismissal order was made as a result of inadvertence.
The Motion is Brought Promptly: The plaintiff must demonstrate that she moved forthwith to set aside the dismissal order as soon as the order came to her attention.
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. The court takes note that witnesses' memories generally tend to fade over time and that sometime it is difficult to locate witnesses or documents. However to bar the plaintiff from proceeding with her action on the ground of prejudice, the defendant must lead evidence of actual prejudice. This might include evidence of specified documents lost over time, or destroyed following a dismissal, or of specific witnesses who have died, or have disappeared and the defendant has been unable to locate them with due diligence. While litigation is outstanding the defendants must take care to obtain and preserve evidence.”
[81] The Prescott and subsequent Court of Appeal decisions have amended this test to not require that all of these Reid v Dow Corning Factors must be met for a administrative dismissal order to be set aside, instead favouring a contextual approach, after the Court of Appeal’s decision in Scaini.
[82] I do not see a material difference between the ordering and wording of the Reid v. Dow Corning Factors by the Defendants in their Factum as significant, given that Peppall, J.A. in Prescott, also cited by the Defendants sets out the Reid v. Dow Corning Factors precisely.
[83] The Defendants in their Factum expand on the application of the Reid v. Dow Corning Factors, stating:
“56. The Reid factors provide a structured approach to reconciling the principle that civil actions should be decided on their merits with the public interest promoting the timely resolution of disputes.[citing Jadid v TTC, 2016 ONCA 936 at para. 12 [("Jadid")]. It is "not a rigid, one-size fits all test" nor an exhaustive list of factors that may be considered. Rather, the court's inquiry should be contextual, and with a view to arriving at a result that is just in the circumstances and balances the interests of the parties and the public.[Citing Prescott and Scaini]
- The court's assessment must take into account that public confidence in the administration of justice depends on ensuring timely justice.[citing Hamilton (City) v Svedas Koyanagi Architects Inc ., 2010 ONCA 887, at paras 20-22 ("Hamilton")].
As the Court of Appeal has stated:
“These rules and cases rest upon an important principle: there is a strong public interest in promoting the timely resolution of disputes. [ ... ] The interest of litigants involved in the civil justice system in timely justice is obvious. Litigants are entitled to have their disputes resolved quickly so that they can get on with their lives. Delay multiplies costs and breeds frustration and unfairness.[Marché D'Alimentation Denis Thériault Ltée v. Giant Tiger Stores Limited, 2007 ONCA 695, at para 25 ("Marche"); and Hamilton],
[84] From the arguments of the Parties before me, there did not appear to be disagreement on the legal tests to be applied, being the Reid v. Dow Corning Factors, and that a contextual approach was to be employed, but rather the application of these facts to those tests.
[85] The Court of Appeal in H.B. Fuller Company v. Rogers (Rogers Law Office), 2015 ONCA 173 (“H.B. Fuller”), cited by the Plaintiffs in their Factum, and also cited by Pepall, J.A. in Prescott, also approved the test for a Court in considering and weighing the four Reid v. Dow Corning Factors on a motion to set an administrative dismissal order aside, synthesizing that approach from many statements made in prior cases, such as Scaini, Marche, Prescott, and Hamilton, all cited by these Plaintiffs and/or the Defendants to support their cases:
the length of the litigation delay and whether it has been explained;
whether the failure to meet the mandated time limits was due to inadvertence;
whether the motion to set the dismissal order aside was brought promptly; and
whether the delay has prejudiced the defendant.
but also further clarified this test, finding that requiring a party moving to set a dismissal order aside to satisfy each of the four factors is too rigid an approach, citing Scaini, Hamilton, and Marche, also cited by the Defendants. Instead, the Court of Appeal in H. B. Fuller also held that a court must take a contextual approach, and the Court must take factors unique to the case into consideration. The factors are not an end to themselves, as the court must arrive at a just result in the particular circumstances of the case.
[86] The Court of Appeal in H.B. Fuller also states the following which is very applicable to this case, and which I am guided by:
“[23] As Blair J.A. stated on behalf of the court in Kara, at para.13:
[L]ittle is to be gained by debating whether there is a bright line between the “contextual approach” [enunciated in Scaini] and the approach enunciated in later authorities such as Faris and 1196158 Ontario Inc. v. 6274013 Canada Ltd.
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: see e.g. Hamilton (City), at paras. 22-23; Marché, at para. 20; Finlay, at paras. 27-30; Kara, at paras. 13-15. Furthermore, it is not only the plaintiff’s conduct that must be considered. While the plaintiff bears primary responsibility for the conduct of the action, the defendant’s conduct in the litigation is a relevant circumstance: see Aguas v. Rivard Estate, 2011 ONCA 494, 107 O.R. (3d) 142, at paras. 18-19, 21.
[24] In his reasons, the motion judge adverted to both the four-factor contextual approach and Faris v. Eftimonski, 2013 ONCA 360, 363 D.L.R. (4th) 111, which employs the two-part test. The parties to this appeal agree that the issue is whether he applied the relevant factors correctly.
[25] The factors that guide the court’s choice between ending the plaintiff’s action before trial and forcing the opposite party to defend the case despite the delay require a judge to resolve the tension between two underlying policies. The first is that civil actions should be decided on their merits. The second is that civil actions should be resolved in a timely and efficient manner in order to maintain public confidence in the administration of justice: Kara, at para. 9; Hamilton (City), at paras. 20-21; Marché, at para. 25.
[26] When reviewing a registrar’s dismissal for delay under the former rule 48.14, the weight of authority from this court has leaned towards the first policy consideration. As Laskin J.A. stated in Hamilton (City), at para. 20, quoting with approval the motion judge’s comment, “[T]he court’s bias is in favour of deciding matters on their merits rather than terminating rights on procedural grounds.” While failure to enforce the rules may undermine public confidence in the capacity of the justice system to process disputes fairly and efficiently, as Sharpe J.A. observed in 119, at para. 19, nonetheless:
“[P]rocedural rules are the servants of justice not its master … We should strive to avoid a purely formalistic and mechanical application of timelines that would penalize parties for technical non-compliance and frustrate the fundamental goal of resolving disputes on their merits. [T]he Rules and procedural orders are construed in a way that advances the interests of justice, and ordinarily permits the parties to get to the real merits of their dispute. [119, at para. 19. Citations omitted.]”
[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).
[28] In determining whether to reinstate an action that has been dismissed for delay, keeping in mind the above observations, the court must consider the rights of all the litigants. This necessarily requires consideration not only of the plaintiff’s right to have its action decided on its merits, but also consideration of whether the defendant has suffered non-compensable prejudice as a result of the delay, whether or not a fair trial is still possible, and even if it is, whether it is just that the principle of finality and the defendant’s reliance on the security of its position should nonetheless prevail. See e.g. 119, and Wellwood v. Ontario Provincial Police, 2010 ONCA 386, 319 D.L.R. (4th) 412.” (emphasis added)
[87] To put H.B. Fuller in factual context, that case dealt with:
an administrative dismissal under the former R.48.14 with a two year administrative dismissal period,
a solicitors negligence claim where the defendant solicitor had allegedly failed to monitor the dates when patent maintenance fees were payable, and failed to reinstate patents deemed abandoned by the CIPO due to failure to pay fees;
the Statement of Claim was issued in October 2011, Statement of Defence 14 months later, after the Defendant requested numerous extensions.
The Parties had some discussions about discovery dates in April 2013 but the co-defendant CPI had not yet filed its Statement of Defence at that point;
the Defendant Solicitor Rogers died in July 2013 without being examined for discovery;
the co-defendant filed its defence in July 2013, 20 months after the Statement of Claim was issued;
Under the previous system, the Registrar sent the Status Notice on November 8, 2013 to the wrong address for service;
When the action had not been set down for trial the Registrar dismissed the action for delay on February 24, 2014;
The Plaintiff’s counsel did not receive that Order either, possibly sent again by the Court to counsel’s former address, testifying that he only discovered the Dismissal Order from LawPro on behalf of the Defendant during settlement discussions in March 2014.
After taking the (incorrect) position that the Registrar had no jurisdiction to issue the Order, continuing with settlement discussion with LawPro, Counsel for the Plaintiff finally brought the Motion to set aside the Dismissal Order on June 9, 2014, 105 days after the date of the Dismissal Order and 98 days after counsel for the Plaintiff stated they became aware of the Dismissal Order.
[88] Notwithstanding all of these problematic factual issues, including only pleadings having been exchanged prior to the dismissal after 2 years, no discoveries had been conducted, no documents had been exchanged, and the key defence witness the Solicitor Rogers was dead without being examined for discovery, the Court of Appeal in H.B. Fuller allowed the appeal and set aside the dismissal Order stating:
“[46] While the discretionary decision of a lower court is entitled to deference, the errors I have identified rise to a level that warrants appellate intervention. Considering all the circumstances of this case, I would hold that the appellants have explained the delay in their conduct of the litigation and that the delay in moving to set aside the dismissal order is not so great as to yield to CPI’s reliance on the security of its position. I also conclude that the appellants have rebutted the presumption of non-compensable prejudice and it is still possible to have a fair trial.”
[89] In this Action, the period between the date of the Dismissal Order and the date of service of the Notice of Motion for this Motion was 649 days. The time period for the bringing of the Motion from August 19, 2020, the date that Levy testified he first became aware of the Dismissal Order, is 187 days.
[90] Both the Plaintiffs and the Defendants organized their argument, and their facta, in accordance with the four Reid v Dow Corning Factors, and I will as well.
[91] I am guided and bound by the ruling of the Court of Appeal in H.B. Fuller, Scaini and Prescott, that all of the circumstances of the case must be considered in order to arrive at a just result and that a contextual approach, which seeks to balance the respective interests of the parties, rather than a rigid application of the Reid v. Dow Corning Factors, is required on a R.37.14 inquiry and the key point is that the court consider and weigh all relevant factors to determine the order that is just in the circumstances of the particular case.
[92] I am also guided by R.1.04 which states:
Interpretation
General Principle
1.04 (1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.
Proportionality
(1.1) In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.
Matters Not Provided For
(2) Where matters are not provided for in these rules, the practice shall be determined by analogy to them.
(3) Revoked
“Party and Party” Costs
(4) If a statute, regulation or other document refers to party and party costs, these rules apply as if the reference were to partial indemnity costs.
“Solicitor and Client” Costs
(5) If a statute, regulation or other document refers to solicitor and client costs, these rules apply as if the reference were to substantial indemnity costs.
[93] I am also guided by the Court of Appeal in Finlay v Passen 2010 ONCA 204, also cited by the Plaintiffs (“Finlay”) , (at Para. 14):
“Rule 1.04(1) and rule 2.01 are intended to do away with overly "technical" arguments about the effect of the Rules and orders made under them. Instead, these provisions aim to ensure that the Rules and procedural orders are construed in a way that advances the interests of justice and ordinarily permits the parties to get to the real merits of their dispute.”
- the length of the litigation delay and whether it has been explained
[94] In the Defendants’ Factum, on the issue of the explanation of the litigation delay, the Defendants cite a number of decisions to construct their argument:
“67. The plaintiffs have no reasonable explanation for their delay of over three years between the unsuccessful mediation in December 2017 and commencing this motion in February 2021. The plaintiffs' delay includes:
(a) a failure to take any substantive steps in the 17 months between the December 19, 2017 mediation and issuance of the Dismissal Order on May 19, 2019;
(b) a failure to take any substantive steps in the 15 months between the issuance of the Dismissal Order on May 19, 2019 and the plaintiffs' counsel advising that he was aware of the Dismissal Order on August 19, 2020; and
(c) no communications from plaintiffs' counsel to the defendants for 21 months between November 14, 2018 and August 19, 2020, during which time the plaintiffs' counsel claims to have been unaware of the Dismissal Order.
This court has found similar unexplained periods of delay to be inexcusable. In Grillo, the period of over 30 months with only "three, or at best five, email and/or telephone exchanges" constituted "significant and inexcusable delay". [citing Grillo Barristers PC v Kagan Law Firm PC, 2021 ONSC 2317]. In Muscaj v Urszula, a period of inactivity of 17 months was described as a "yawning gap" which "does not amount to an acceptable pace of litigation." In Ross v Hertz Canada, a delay of 14 months was considered "inordinate". In Kamboj v Sidhu, the court considered an 11-month delay, noting "it is not acceptable to ignore an active litigation file for such a long period of time". If delays of this nature are routinely tolerated, rule 48.14 will "become meaningless and of no real effect."[citing Ross v Hertz Canada].
In Grillo, this court clarified that the court must not only consider the length of delay, but rather, whether the plaintiff's "explanation for his delay was satisfactory." In Giant Tiger, the Ontario Court of Appeal held that the plaintiff "must satisfy the court that steps were being taken to advance the litigation toward trial, or if such steps were not taken to explain why".
[95] In their Reply Factum, the Plaintiffs respond as follows regarding the jurisprudence cited by the Defendants, above:
“21. The Respondents have cited several decisions with time gaps ranging from 11 months to 30 months; Grillo Barristers PC v Kagan Law Firm PC, Massoj v Ursgala, Ross v Hertz Canada, and Kamboj v Sidhu. Before continuing, this Court has set aside Registrar Dismissal Orders for periods longer than three years; Cornell v. Tuck, [2018] O.J. No. 6229 was 4.5 years; dismissal Order was issued on June 1, 2012 and Notice of Motion served on November 16, 2017, in Iacolucci v. TD Waterhouse Canada Inc., [2018] O.J. No. 788 Registrar's administrative dismissal order dated November 20, 2013 and notice of motion brought on August 24, 2016.”
[96] What both sides have not provided in citing these cases for assorted time periods is the factual context of these cases, which is required to be considered in employing the Contextual approach required after Scaini.
[97] I have prepared the chart at (for the sake of readability) Schedule “A” to these reasons, summarizing the facts of all of the 19 + cases cited on this issue by the parties in their three competing Facta on this issue, as in each case the parties are citing time periods for acceptability of delay that are frequently actually divorced from the actual findings in these cases, and where the findings of the Courts in those specific cases as to whether the Dismissal Order should or should not be set aside, are more dependant on the REASONS for the unexplained delay in their individual contextual circumstances, than the chronological LENGTH of the unexplained delay.
[98] As an example, after Master Dash in Ross v. Hertz stated the quote extracted by the Defendants in their Factum that “In Ross v Hertz Canada, a delay of 14 months was considered "inordinate"”, the actual quote from Master Dash reads:
16 The delay of 14 months from commencement to dismissal of the action is, in my view, inordinate "considered in the context of the purpose of rule 48.15, to discourage delay at the front end of an action and compel at least one defence to be filed within six months" . The requirements of rule 48.15 serve to "prevent plaintiffs from commencing an action and then taking no steps or insufficient steps to pursue it" such as compelling the filing of a defence.
[99] Despite the “inordinate” statement, Master Dash finds that the “inordinate” delay had been by explained by the Plaintiff, stating:
“18 The explanation for the failure to move the action forward (and for the failure to avoid the dismissal) is that the lawyer for the plaintiffs, Owen Elliot, was dealing with anxiety and depression, which escalated significantly following the death of his grandmother in December 2010 as well as pressures dealing with other files. He ultimately sought medical attention and in February 2011 began treatment for his depression. In April 2011 he began taking antidepressants. The medication in turn caused nausea, extreme drowsiness and fatigue. At times his symptoms were so bad that they manifested as physical symptoms and he could not get out of bed or attend work. He was missing one to two and later two to three days of work per week. The motion on January 26, 2011 to extend the rule 48.15 deadline was brought by other members of his firm, albeit on his instructions.
19 The best evidence as to Elliot's medical condition and how it affected his attention to his files would have been a report from his doctor. No such report was tendered in evidence. Despite this, Mr. Elliot has testified as to the state of his mental health under oath in an affidavit filed as part of a public record. He was cross-examined and in answering questions originally refused revealed details of his medical condition. I am satisfied that the lawyer's medical issues as described by him are authentic.
20 Undoubtedly the lawyer was negligent in his handling of the file and in failing to turn the file over to another lawyer when he was unable to cope. I am prepared to accept however, in the context of the lawyer's medical condition, that the explanation is adequate, although barely so. It is a situation where the "court should be concerned primarily with the rights of the litigant, not with the conduct of their counsel ... 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." The situation however "may be different where the lawyer's conduct is not inadvertent but deliberate" or if the lawyer had "put the file in abeyance and intentionally and stubbornly refused to proceed with the action "
21 In this case there is no evidence that the lawyer intentionally caused the action to be delayed or that he deliberately put the file in abeyance. The plaintiffs filed their own affidavits on this motion and made it clear that they never intended to abandon their claim for damages. They should not lose their rights against the defendants because of their lawyer's mental health.
22 Considered on a contextual basis, the plaintiff's have satisfied the first Reid factor.”
[100] From the decisions in Hamilton it appears that the cumulative delay, including the period of delay for the bringing of other proceedings, such as the motion to add Honeywell as a defendant, should be reviewed, to determine if there is an explanation.
[101] From Grillo, the overall delay needs to be evaluated rather than individual periods of delay followed by periods of activity, as stated by Pinto, J.:
“21 Instead of focusing on the explanation for any delay during the entire five years, the Master took an "all or nothing" approach to delay, equating it with litigation not advancing at all. This caused the Master to implicitly divide the five years into Three Periods. It was only when the litigation was not advancing at all that the Master considered there to be litigation delay. This is a legal error. As stated by the Court of Appeal in DK Manufacturing Group Ltd. v. MDF Mechanical Limited 2019 ONSC 6853Ont. S.C.J. , 2 C.C.L.I. (6th) 203, at para. 18, citing Madore v. Metropolitan Toronto Condominium Corp .,, 2015 ONSC 4750, at para. 26, "While the explanation need not cover every single minute of delay, it must still explain most of the delay and certainly all periods of material delay."
[102] After the date of the hearing of this Motion, and while I was writing these reasons, the Court of Appeal in Grillo Barristers P.C. v. Kagan Law Firm P.C., 2022 ONCA 303, upheld Pinto, J. in the Grillo decision cited by the Defendants, and provided the most current guidance from the Court of Appeal on the proper approach to this issue:
“[5] The heart of the appeal is the argument that the motion judge erred in setting aside the associate judge’s order to reinstate the action by interpreting the applicable factors from Reid v. Dow Corning Corp. (2002), 48 C.P.C. (5th) 93 (Ont. S.C.), for reinstating an action dismissed for delay rigidly, rather than considering each factor as part of an overall contextual approach intended to take into account the court’s preference that actions be determined on their merits.
[6] We disagree. The motion judge correctly found that, while the associate judge cited the Reid test, his approach to its interpretation significantly distorted the test itself. The motion judge emphasized that the periods of delay must not be treated in isolation from another, but rather as a whole. The associate judge erred in failing to take this approach.
[7] The argument that the motion judge erred in failing to apply the test “flexibly” as Reid requires is misplaced; flexibility lies not in the application to particular periods of delay but rather with respect to a consideration of the entire delay. Here, the delay was well over 4 years and the action was nowhere close to being ready for trial. The associate judge acknowledged that the appellant had “dithered”.
[8] It is clear from the reasons that the motion judge was very much alive to the deference owed to the exercise of discretion according to the correct legal principles. Nevertheless, he went on to identify additional errors of both law and fact.
[9] He found that, while the associate judge cited the correct test, he erred in the approach he took to it which resulted in the distortion of the test itself. Namely, it was only when the litigation was not advancing at all that the associate judge considered there to be litigation delay. This was a central legal error, and sufficient in itself to set aside the associate judge’s decision. The periods of delay are to be considered as a whole, and not in isolation from one another.
[10] Moreover, and as the motion judge points out, the associate judge erred by focussing not on the explanation for the delay, but on the length of the delays. For that reason, the associate judge the first two and a half years of delay even though almost an entire year of that delay went unexplained. Similarly, the associate judge found that an additional two and a quarter years of delay was “not unforgiveable”. Consequently, the associate judge erred in law by asking whether the delay was forgivable rather than whether the delay was sufficiently explained. He did so in the face of considerable evidence that the appellant’s delay was egregious, including:
• The 13-month period between the commencement of the action and the appellant’s first reply;
• The associate judge’s finding that the appellant became “a sojourner” before returning to “being a litigant”;
• The associate judge’s finding that the appellant “stalled the process with his own lawyers”;
• The associate judge’s finding that the appellant “slumbered” for two and a quarter years;
• The appellant did not move this action beyond the pleadings stage in five years; and
• The appellant served its affidavit of document 14 months after the five-year administrative dismissal.”
[103] In this case there have been periods of periods of activity, and periods of inactivity, as there had been in Grillo. The very current guidance of the Court of Appeal in Grillo is that the periods of delay are to be considered as a whole, and not in isolation from one another, and that the question to be determined is not whether the delay was forgivable but rather whether the delay was sufficiently explained. I will use the Court of Appeal’s lens in Grillo to apply the facts in evidence before me on this Motion to the specific alleged delay periods to assess the whole of the alleged delay in this Action, that led to the Dismissal Order.
Alam Representation
[104] During the period in which Alam had carriage of this Action from retention in or about June, 2012 until his replacement by Levy on February 9, 2015, a period of:
2 years 9 Months from the Injury,
2 years and 8 months from retention of Alam, and
10 months and 2 days from the issuance of the Statement of Claim
the following steps in the litigation had been completed:
Notice was given by Alam to the Defendants to preserve the physical Prop-Rods and lift gate from the Minivan, and request to inspect them, and/or the name of the Prop-Rod Manufacturer on June 12, June 15, and September 17, 2012 and February 27, April 15 , 2013 and January 10 2014;
Responses from the Defendants on June 15, 2012, March 4 , May 7, 2013 and January 28, 2014, requesting proof of an experts report identifying a defect in the liftgate, claiming to be unable to provide the name of the Prop-Rod manufacturer, and/or to provide access to the Prop-Rods for inspection;
Statement of Claim issued on April 7, 2014;
Statement of Defence issued by Defendants on May 1 2014, approximately one month shy of the 2 years from the Injury;
Confirmation by Defendants of preservation of liftgate props and availability for inspection on June 25, 2014;
Requests by Defendants for production of documents and medical records to evaluate claim on June 10, June 25, October 9, November 13 of 2014 and January 6, 2015 to Alam;
Request by Alam to inspect Prop-Rods and identity of manufacturer of Prop-Rods on October 27, 2014;
Offers by Defendants to schedule inspections of Prop-Rods on June 25, October 9, November 14, 2014 and January 6, 2015;
Alam advising on October 27, 2014 that he would need to amend the Statement of Claim once the Prop-Rod Manufacturer was identified;
Counsel for the Defendants advising Alam on June 25, 2014 that the name of the Prop-Rod manufacturer appeared on the replacement Prop-Rods in the Plaintiffs vehicle that replaced the allegedly defective Prop-Rods.
Alam acknowledging on October 27, 2014 receiving the information regarding the Prop-Rod Manufacturer from counsel for the Defendants, stating:
“You also confirmed that the liftgate props manufactured by the same manufacturer were reinstalled on our client's vehicle following the initial repairs and that those props contain the identity of the manufacturer of the liftgate props. Thanks for providing this information. However, I am still puzzled as to why you cannot simply provide the name of the manufacturer if you are in possession of that information as this will move the case forward and avoid any further delay.”
Draft Affidavits of Documents of Defendants served on October 9, 2014;
[105] Based on all of the authorities reviewed, and all of the evidence before me, I cannot say that the time period in Alam’s tenure as counsel for the Defendants, in and of itself, showed evidence of inordinate delay, and in any event can be explained by Alam attempting to obtain the identity of the Prop-Rod manufacturer, and the discussion regarding the inspection of the Prop-Rods, both before and after the Statement of Claim was issued.
[106] There was a period of time where counsel for the Defendants was repeatedly following up regarding productions and to schedule inspections, but Alam was also repeatedly following up with respect to the inspection of the Prop-Rods and repeatedly requesting the Defendants to identify the Prop-Rod manufacturer, which counsel for the Defendants did not explicitly provide.
[107] As noted previously, Alam continued to be retained to prosecute the SABS Claim on behalf of Jacqueline which was settled at the Mediation.
Levy Representation- To End of Discoveries on October 13, 2016
[108] Upon retention of Levy on February 9, 2015, the following steps were completed in the period February 9, 2015 to October 16, 2016, when discoveries were completed:
Invitations by Defendants to inspect Prop-Rods February 9, 2015
Provision on April 7, 2015 of productions previously obtained by Alam, and by Levy as a result of the requests made by counsel for the Defendants, including:
Hospital Records,
Treating Physician Records,
Neurological Expert report,
18 AB-IME reports,
10 Plaintiff medical and vocational assessments,
prescription summaries, and
Diagnostic imaging reports.
After review of these documents, on April 30, 2015 the Defendants requested leave, on Consent, to amend the Statement of Defence and add a Counterclaim against Zamir, and when no consent was granted, brought a Motion on an unopposed basis and obtained the leave Order from Master Muir on September 21, 2015;
Amended Statement of Defence and Counterclaim delivered on September 30, 2015;
Defence to counterclaim delivered on May 2, 2016
The Defendants served sworn Affidavits of Documents on August 19, 2016 and the Plaintiffs served separate sworn Affidavits of Documents by September 23, 2016
Discoveries of all Parties were completed by October 13, 2016
[109] Based on all of the authorities reviewed, and all of the evidence before me, I cannot say that this time period showed evidence of inordinate delay either. The Parties exchanged productions, including the significant Medical productions that Alam and Levy had compiled, and exchanged sworn affidavits of documents, obtained an order permitting amending of pleadings, brought and defended the counterclaim and completed discoveries in the 1 year and 8 months from the date that Levy took over carriage of the Action.
[110] The only unexplained delays in this period was the approximately 8 month period it took for Zamir to defend the Counterclaim, probably explainable by the need to retain separate counsel, but that is not attributable to Levy’s representation.
[111] It is not clear what Levy and Horkins were doing in this time period either, presumably preparing their productions and Affidavits of Documents, and scheduling the discoveries. There is also no evidence as to whether the failure by the Plaintiffs to consent to the Order ultimately granted my Master Muir had any material impact on this April 2015 to May 2016 period required to amend the Statement of Defence and Counterclaim and for the filing of the defence by Zamir.
[112] As of October 13, 2016, when the discoveries were completed, Levy still had 2 years 5 months and 26 days to complete post-discovery tasks and file a Trial Record, or agree on a timetable and obtain an Order, or have a Status Hearing.
From Discoveries to Mediation - October 13, 2016 to December 19, 2017
[113] At this point the momentum built up to the end of Discoveries begins to slow.
[114] In this 1 year and 2 month time period, from the evidence before me, the following steps were completed:
On October 20, 2016 it appears that Levy requested scheduling of a Mediation and requested Answers to Undertakings by Shaw, but the correspondence is not in the record;
Undertakings Charts of the Discoveries of Jacqueline and Zamir, apparently prepared by the Defendants without benefit of the Transcripts, were sent to Levy on November 3, 2016;
Holland’s evidence is that only partial answers to undertakings were provided by the Plaintiffs, but neither the Holland Affidavit nor the Levy Affidavit contain any evidence as to when they were provided by Levy or what they specifically contained;
Unclear when Transcripts became available;
The Defendants state they answered their undertakings on August 3, 2017, but it is not clear whether the Plaintiffs accepted their completeness;
As at the August 3, 2017 correspondence from the Defendants, it appears the Plaintiff had not answered their undertakings, so any answers must have been provided after this date, perhaps before the Mediation;
Glenn Zakaib, counsel with carriage of the Action for the Defendants left Cassels on October 19, 2017 and Horkins became lead counsel, but no evidence is presented that this contributed to delay;
Mediation conducted on December 19, 2017;
SABS Claim settled at Mediation;
[115] And that is it for the evidence before me.
[116] There must have been other communications in this period to schedule the Mediation, at least, but neither the Levy Affidavit nor the Holland Affidavit contain it. Nothing in the Levy Transcript really assists either.
[117] Availability of counsel, clients and the Mediator and conflicting scheduling may have been the issue, as well as the time and effort required to prepare their respective mediation materials, but that evidence is not before me.
[118] As a result there is no explanation as why it took 14 months to schedule and attend a mediation and for the parties to wholly and/or partially answer undertakings.
[119] Jacqueline and Zamir’s draft summaries of undertakings, refusals and under advisements were attached to the Holland Affidavit as Exhibit “EE”, as well as the for the Shaw and Lewis Discoveries as Exhibit “FF”.
[120] Jacqueline had 5 undertakings, 2 under advisements and 6 refusals. Zamir had 1 undertaking and 15 refusals. None appear too onerous or voluminous to answer if determined to be proper questions.
[121] Similarly, Shaw’s Discovery had 13 undertakings, and 6 under advisements. Only two Under Advisements were maintained as refusals. Lewis’ Discovery had 1 Under advisement that was maintained as a Refusal. I note that the list of Shaw’s undertaking, under advisements and refusals does not precisely match the list in the transcript of Shaw’s discovery, at Exhibit “B” to the Levy Affidavit, but there is no evidence before me that the Plaintiffs have taken issue with the state of the answers to the undertakings provided, as set out in the abovementioned summaries.
[122] Between all 4 of the Discovery witnesses there were a combined total of 50 unanswered questions in the undertakings and refusals charts, of which (by my count) 3 of the Plaintiffs’ 6 combined Undertakings were to advise if witnesses to the accident come forward, and to provide any expert opinions, and 9 of the Plaintiffs’ 15 combined refusals were related to questions as to whether they had read the Statement of Claim and Defence to Counterclaim before they were issued and whether they believed that those pleadings were accurate.
[123] Why did these undertakings take at least 8-9 months to answer? What undertakings given by the Plaintiffs are allegedly incomplete? There is no evidence before me explaining this passage of 1 year and two months.
[124] From the evidence before me it appears that no Motions have been brought by any party, at any time, to compel any of the allegedly Undertakings or Refusals to be answered, since late 2017 when the Plaintiff’s undertakings were likely allegedly answered, but not to the satisfaction of the Defendants.
[125] I note that from Levy’s testimony there were settlement discussions at the Mediation that were not successful on the Tort side, although the SABS Claim settled. He states about continuing settlement discussions after the Mediation, and the position of the parties at the Mediation:
“163 Q. A third thing that was happening after the mediation were settlement discussions. Which I won't ask too much about, because they are privileged. But, essentially, my clients had made an offer shortly after the mediation, and I was following up with you for a response, but I never got one. Is that fair?
A. Well, my recollection was that the offer that was made was the same offer that had been rejected at the mediation. And so, quite frankly, there, you know, wasn't a lot to say.
164 Q. But you didn't even say that. Right? Whether or not -- I am not going to comment on what the offer was and whether it was the same as at the mediation, because that is privileged, to my mind. But the point is you didn't even respond to say, "We are rejecting this offer for that reason. " Correct?
MR. COVENS: Sorry. What time frame is this?
MR. HORKINS: After the mediation.
MR. COVENS: Well, there is certain events and discussions between you two. I think there is a teleconference November 2018. So that is almost a year after.
MR. HORKINS:
165 Q. Yes. But I am asking: Was there ever a response to the settlement offer after the mediation?
MR. COVENS: I think he answered that question.
MR. HORKINS: Well, I am going to take it as a no, because he hasn't advised me of any response.
THE WITNESS: Well, Chris, there is no doubt that, when you and I spoke, you would have raised it. And that is what I would have said to you, because there was no movement, or certainly no movement of consequence, if any, in the offers. And so, you know, from our perspective, there wasn't anything to talk about.”
[126] As of December 19, 2017, when the Mediation was completed, Levy still had 1 year, 4 months and 27 days to complete post-discovery and post-mediation tasks and file a Trial Record, or agree on a timetable and obtain an Order, or have a Status Hearing.
[127] But the pace of the prosecution of this Action had appreciably slowed, without a cogent explanation being provided in the evidence before me, during this time period as to why, but there was still some activity occurring, and I find that as the Mediation was scheduled and completed, and the SABS Claim settled, and some undertakings at least were answered, there is sufficient forward momentum and insufficient evidence to attribute the slowing momentum solely to Levy. I cannot make a finding that there was inexplicable delay in this time period attributable solely to Levy, as per the Grillo test.
From Mediation to Dismissal Order - December 19, 2017 to May 15,2019
[128] Three days after the Mediation, on December 22, 2017 Levy wrote to Counsel for the Defendants and Kohli, then counsel to Zamir (Exhibit “HH” to the Holland Affidavit) stating:
“I write further to our recent attendance at mediation. I understand from Ms. Kohli that her instructions are not to bring a summary judgment motion, and thus the case can be listed for trial at this time. I note that the action was, for some reason, commenced in Toronto when the proper venue would be the location of the accident which was out east. I do believe that technically the action should be transferred to Cobourg, but the balance of convenience given the location of the parties, witnesses, etc, leads me to suggest that Oshawa would actually be a better venue. either would also have the advantage of getting us much earlier trial dates than what is available in Toronto.
I would ask that you please each obtain instructions in this regard so that a motion will not be necessary, failing which we will bring our motion and seek costs from anyone who opposes it. May I please hear from each of you.”
[129] From the evidence before me, this appears to be the first time that two issues that the Plaintiffs raise as explanations for delay are raised: the change of venue issue and the Summary Judgment by Zamir on the Counterclaim issue. At this point in December of 2017, Zamir appears NOT to be bringing a summary judgment motion on the Counterclaim.
[130] Also on the evidence before me this appears to be the first time that Levy indicates that he wishes to set the Action down for trial. As at December 22, 2017 Levy is clearly cognizant of the need to set the Action down for trial.
[131] The next document in the Levy Affidavit chronologically is Exhibit H, an email thread between Levy and Horkins between November 4 and 18, 2018. The only other step mentioned in this time period in the Levy Affidavit is the service of the medical records of Dr. Vidry on all counsel on January 16, 2018.
[132] The Holland Affidavit fills in this time period. The same day Horkins responded to Levy, stating (at Exhibit “II” to the Holland Affidavit):
“David, What connection does this case have to Oshawa? The parties are resident in Brampton and Windsor. Unless you can offer a compelling reason to transfer to Oshawa, I'm not prepared to recommend that the case be transferred there. I'm also not sure I agree that the case can be set down given your clients' outstanding undertakings and claim against "ABC Corp" which has not been properly named or served.
You have also not answered my earlier email regarding the settlement of your client's AB claim? Please let me know if that resolved on Tuesday and if so, for what amount.”
[133] After several further prompting emails from Horkins, on January 17, 2018 Levy responded:
“I think we had a brief power interruption just as I was sending. It didn't send - and then deleted it!
Basically, I confirmed that the AB settled for 300K (I thought you were still there when it happened). I have asked Mr Alam for a copy of the SDN to send to you.
And I asked that you reconsider on venue. The place of the accident (a key, and often determinative, factor) is east of Oshawa, and I thought Oshawa just made more sense than Belleville. You ask what connection the case has to Oshawa, but it has no more connection to Toronto and as I am sure you have seen, Toronto Judges have become increasingly strict about not letting us run our claims here, often punting cases back out at late stages. I cant allow that to happen.
If your client resists, we will bring the appropriate motion. I would hope that could be avoided , so please let me know.”
[134] The same day Horkins responds (Exhibit “LL” to the Holland Affidavit):
“David,
Thanks for confirming the amount of the AB settlement and I look forward to receiving the settlement disclosure notice.
With respect to venue, while I agree that the action has no connection to Toronto (and I appreciate it was not your decision to commence the action in Toronto), I don't see any connection to Oshawa either. The Big Apple is over 80 km east of the Durham courthouse - about halfway to Kingston. If the location of the accident is to be the determining factor, the trial should be held in Cobourg (the Cobourg courthouse is a 20 minute drive from the Big Apple) or, perhaps, Belleville. I would be willing to recommend consenting to either of those court locations or, as noted in my email below, Brampton or Windsor where the respective parties are resident.
I completely agree that our judges have become increasingly strict on this, for good reason, which is why I can't recommend consenting to a court location that has no connection whatsoever to the case. As you know, even where such motions are brought on consent, the practice direction requires that they be approved by the RSJ of any region involved and the moving party is required to file affidavit evidence addressing the factors under rule 13.1.02(2)(b) in support of the transfer. I just don't see how those factors could possibly support a transfer to Oshawa as you've recommended.”
[135] It appears that on January 23, 2018 “Without Prejudice” redacted correspondence was sent by Horkins to Levy. No response being received, Horkins emailed Levy 100 days later on May 2, 2018 (“Exhibit MM” to the Holland Affidavit), reattaching the “Without Prejudice” correspondence, and after another redacted “Without Prejudice” paragraph, states:
“Further, I have yet to receive the Settlement Disclosure Notice from you confirming the settlement of your client's AB claim. Please forward a copy at your earliest convenience.
Finally, having heard nothing further from you regarding your proposed transfer of venue, I assume that you are no longer pursuing it. Please confirm.”
[136] Horkins continued to follow up with Levy on this email on May 17 and then again October 15, 2018.
[137] Levy responded to this January 23, 2018 “Without Prejudice” correspondence and May 2, 2018 email on November 4, 2018, a silent period of 286 days (email string at Exhibit “PP” to the Holland Affidavit and Exhibit “H” to the Levy Affidavit):
“Hi Chris. I know it has been a while since you heard from us. Do you want to set up a call?”
[138] After some emails setting a date for a call on November 14, 2018, Horkins states on November 14, 2018 in an email to Levy:
David, Thanks your call today. Further to our discussion, I will await hearing from you on the following:
[REDACTED]
The Settlement Disclosure Notice from the AB claim; and
Your clients' motion to transfer the action, which I understand from our call is still being pursued.
All of these items remain outstanding, despite my numerous follow ups below.
In addition to the above, we are ready and willing to discuss any other outstanding issues required to ready this case for trial in the event we cannot reach a resolution.
I look forward to hearing from you.
Chris”
[139] The next correspondence that appears in the Holland Affidavit is the Notice of Change of Solicitors for Zamir to Cumming of Bell Temple (“Cumming”) from Kohli from Hughes Amys, served November 26th, 2018.
[140] From subsequent correspondence from Cumming dated January 8th, 2019 at Exhibit “I” to the Levy Affidavit (but not the Holland Affidavit) to both Horkins and Levy, there appears to have been prior correspondence from Cumming dated November 30, 2018 that is not attached to Exhibit “I”, so the issues raised in that letter are a mystery. The January 8, 2019 letter from Cumming reads:
“We enclose our correspondence of November 30, 2018. [NOT ATTACHED TO EXHIBIT I] We have not heard from counsel with respect to same. We would specifically like to hear from Mr. Zakaib or Mr. Horkins with respect to their position [REDACTED]
[REDACTED]
Alternatively, considering this is a Brampton action, the writer will consider obtaining instruction to proceed with a summary judgment motion, which we anticipate will not be contested and the sole issue will be costs.
We would appreciate hearing from counsel by the end of the month.”
[141] There is no further correspondence in the Levy Affidavit until a further letter from Cumming to Levy and Horkins dated January 14, 2020 at Exhibit J to the Levy Affidavit that I will deal with subsequently. I can only conclude that Levy did not respond to the November 14, 2018 email from Horkins with respect to the change of venue issue or to the correspondence from Cumming dated November 30, 2018 and January 4, 2019 relating to the Summary Judgment Motion.
[142] The Dismissal Order was issued by the Court on May 15, 2019, 183 days from the date of the November 14, 2018 call between Horkins and Levy and 128 days from the date of the second Cumming Letter dated January 8, 2019.
[143] The Dismissal Order was issued 1 year, 4 months and 24 days after Levy sent the December 22, 2017 letter taking the position that a change of venue was required and 1 year 3 months and 29 days from the January 17, 2018 Horkins email where it is clear that Horkins would not be agreeing to a change of venue to Oshawa, Levy’s preferred venue to obtain an earlier trial date.
[144] There is no evidence before me whatsoever that Levy took any steps, at all, in that almost 14 month time period, or ever, to bring his threatened change of venue motion. From the record before me that issue appears to have first been raised by Levy in that December 22, 2017 letter 3 years and 8 months into this Action, so waiting for a change of venue cannot have contributed the reason for that expiry of time to the date of that letter.
[145] It was clear from early 2018 that Horkins was not agreeing to the change of venue to Oshawa, but there is no response to Horkins chasing Levy for answers until the November 14, 2018 call, and at that point it appears that the motion was still theoretical given the email from Horkins that Levy never specifically responded to, before the Dismissal Order or afterward.
[146] Levy’s cross-examination testimony also didn’t shed light on the issue:
“150 Q. And, ultimately, my clients did not consent to transfer the case to Oshawa. Correct?
A. That is what you told me.
151 Q. And your clients never brought a motion to transfer the case to Oshawa. Correct?
A. Correct.
150 Q. And, ultimately, my clients did not consent to transfer the case to Oshawa. Correct?
A. That is what you told me.
151 Q. And your clients never brought a motion to transfer the case to Oshawa. Correct?
A. Correct.
157 Q. Do you know why there was never any agreement to the four other venues I proposed?
A. Well, I mean, again, if nothing else, we still had the summary judgment motion lurking out there and hanging over our heads. And my expectation was that that was going to be coming at some point, and was going to have to get dealt with. So
158 Q. But you never responded to me, saying, "Well, I can't agree to this until this summary judgment thing is resolved.
Correct?
A. I don't believe so, no.”
[147] Jacqueline’s cross-examination evidence on this issue was as follows:
“135 Now, Mrs. Fazal, are you aware that, after the mediation, your counsel, Mr. Levy, requested my clients' consent to moving the case from Toronto to Oshawa?
A. No.
136 Q. So you weren't aware of that at all?
A. No.
Q138 And I take it you also weren't aware that my clients did not consent to moving the case to Oshawa, but offered to consent to moving the case to four other locations, including Brampton, where you live?
A. No.
139 Q. And I take it you also weren't aware that Mr. Levy didn't agree to Brampton or the other locations suggested by my clients, and that he never even responded to the offer to move the case there?
A. No. I don't recall any of that.
140 Q. And I take it you also weren't aware that Mr. Levy advised me that he was planning to bring a motion to move the case to Oshawa?
A. No. No.”
[148] As it does not appear from the evidence before me that any steps, at all, ever, were taken to bring a motion to move the venue to Oshawa, or that instructions were ever sought to do so from the Plaintiffs, the change of venue motion cannot be the explanation for the delay in this time period between the date of the Mediation and the date of the Dismissal Order.
[149] With respect to the second explanation for the delay, the threatened summary judgment motion by Zamir on the Counterclaim, it appears that issue predated the December 22, 2017 Levy letter, in order for the following sentence in that letter to make sense:
“I understand from Ms. Kohli that her instructions are not to bring a summary judgment motion, and thus the case can be listed for trial at this time.”
[150] There is no evidence before me that Kohli was given different instructions from December 2017 until she and her firm were replaced as counsel for Zamir in November 2018 by Cumming. So for that time period the “summary judgment threat” testified to by Levy was not hanging over the heads of the parties and this issue was not preventing the setting down of the action for trial until Cumming was appointed in November 2018 his January 8th, 2019 letter (or perhaps also his mysterious November 30th 2018 letter) stated:
“Alternatively, considering this is a Brampton action, the writer will consider obtaining instruction to proceed with a summary judgment motion, which we anticipate will not be contested and the sole issue will be costs”
[151] I don’t know what the first part has to do with the second part, as this was not a Brampton Action, but this does also not seem to be a significant issue, if the assumption by Cumming is correct that the motion was going to go on consent. Why he or Levy would think that would be the case is not in evidence before me. However, there is no evidence before me that Cumming ever obtained the instructions he was “considering” or that Levy ever answered him.
[152] In any event, given that this letter only came 3 months from the 5th anniversary of the Action, this summary judgment issue cannot be the explanation of the delay for the previous 4+ years, or for the 16 1/2 month period between the Mediation in December 2017 and the dismissal in May of 2019.
[153] In the Cross-Examination of Levy this nugget of information was dropped by Horkins with respect to this issue:
“230 Q. Okay. And so you are also taking the position that this contemplated summary judgment 18 motion was also a reason why you did not set the action down for trial before the expiry of the five-year deadline?
A. Well, again, I think there would have been objection to setting the case down for trial by that party who still wanted to bring a summary judgment motion.
231 Q. I am just going to bring up the -- I think it is the only reference to this, but you can correct me if I am wrong. This is Mr. Cumming's letter dated January 8, 2019. And he only briefly references here considering a summary judgment motion, where he says:
"Alternatively, considering this is a Brampton action, " (as read)
Which he is actually wrong about:
"The writer will consider obtaining instruction to proceed with a summary judgment motion, which we anticipate will not be contested, and the sole issue will be costs." (as read) And that was a summary judgment motion solely on the counterclaim that my clients had against Mr. Fazal. Correct?
1A. Right. I assume, yes.
232 And he never actually brought such a motion?
A. All right. I am not aware that a motion was ever brought.
234 Q. Okay. And this is the same motion, in fact, that Mr. Cumming's predecessor, Ms. Kohli, had attempted to bring, but ultimately decided not to bring?
A. I mean, I assume so.
235 Q. Were you aware that the reason that Ms. Kohli did not ultimately bring that motion was that we were told by Justice Firestone, at Civil Practice Court, that the motion would likely not even be booked, because in his view it was an inappropriate partial summary judgment motion?
A. That was never told to me, no.
236 Q. And in any event, the fact that Mr. Cumming had referenced considering such a motion would not actually have prevented your clients from pursuing their motion to transfer?
A. I don't know. I don't know that they ever gave us their position on it. So I don't know.
237 Q. Did you ever ask for their position on it?
A. Well, I mean, they were copied on the previous correspondence. I don't recall them ever weighing in, one way or the other.
242 Q. So just what we were discussing before quickly going off the record there. So I understand, Mr. Covens, what you are suggesting is that if the main action had been set down for trial, that may have stood in the way of Mr. Cumming bringing the summary judgment motion that he is contemplating in this letter. However, what I am asking is whether the fact that he has said he is contemplating the motion stands in the way of you setting the main action down for trial. And I don't think that it 1does. Do you agree, or disagree?
A. I think I will -- I think I disagree. And if for no other reason than just in terms of trying, you know, to be cooperative amongst counsel. You know, if that was going to put them in a position where they suddenly had an extra step in order to bring a motion that they intended, you know, I would have wanted, within reason, to respect that.
243 Q. Okay. And did you ever have a discussion with Mr. Cumming or anyone at his office, after this letter was received, saying that you wanted to set the action down for trial, and attempting to work out potential issues arising from his contemplated summary judgment motion?
A. I don't have a recollection of that.”
[154] So, one would have thought that if the Regional Senior Justice of this jurisdiction had rejected Kohli’s request to schedule the threatened summary judgment motion on the basis that it constituted partial summary judgment, that some party with knowledge of that order or endorsement on a crucial issue on this motion, would have put that order or endorsement into evidence on this Motion.
[155] In addition, one would have thought that someone would have let Levy and Cumming know of such an order or endorsement likely granted at some point prior to the December 22, 2017 Levy letter, given that each of them appear, at some point in 2018, to have believed that such a motion was still looming over the parties’ heads as a viable option.
[156] There is no correspondence or other evidence before me from Levy to Kohli or Cumming with respect to this issue, and no response to Cumming with respect to his letter(s). It appears clear from Levy’s testimony that no motion was ever brought by Cumming, or even threatened after the abovementioned correspondence.
[157] But it is clear that in the period December 22, 2017 to the end of November 2018, based on the wording of Levy’s December 22, 2017 letter:
“I understand from Ms. Kohli that her instructions are not to bring a summary judgment motion, and thus the case can be listed for trial at this time.”
the threatened summary judgement motion by counsel for Zamir could only be a viable explanation for the period January 8, 2019 to the date of the Dismissal Order, or approximately 4 months, and not for the preceding 12 ½ months from the Mediation.
[158] Apart from the December 22, 2017 letter, the serving of the records of Dr. Vidry on all counsel on January 16, 2018, the January 17, 2018 email, and the scheduling email string from November 4th to November 14th leading to the call between Levy and Horkins on November 14th, 2018 there is NO evidence before me of ANY activity by Levy during the period December 19, 2017 and the Dismissal Order on May 15, 2019.
[159] Accordingly, there is no viable explanation by Levy in evidence before me for the delay between the periods of January 17, 2018 and November 4, 2018 (292 days) and November 14, 2018 and May 15, 2019 the date of the Dismissal Order (183 days) a total period of 475 days or approximately a year and three months.
From Dismissal Order to Date of Discovery of Dismissal Order- May 15 2019 to August 11, 2020
[160] The test in Grillo as well as in Cornell v Tuck, requires me to factor in the total delay for the Action, not just to the date of the Dismissal Order.
[161] In this time period there are only two pieces of correspondence, both letters from Cumming to Horkins and Levy. In a letter dated January 14, 2020 (at Exhibit J to the Levy Affidavit, but not in the Holland Affidavit), sent 245 days after the Dismissal Order, Cumming states:
“Would counsel kindly advise as to the status of any settlement negotiation on this matter. If settlement does not appear feasible, this matter should be set down to move forward to trial.
We look forward to hearing from counsel with respect to the above.”
[162] It is unclear from the wording of this letter whether at this point Cumming was aware of the Dismissal Order.
[163] There was no response to this letter in the evidence before me from Levy, whose evidence was that he was unaware of the dismissal at this point, or by Horkins.
[164] According to the Holland Affidavit “Cassels” was aware of the Dismissal Order on or about May 22, 2019. It does not appear that “Cassels” made anyone else, including Cumming, aware in response to this letter, but there is no obligation on them to do so.
[165] It is unclear what “settlement discussions” were ongoing in the 245 days since the Dismissal Order and in the 1 year and 6 days since Cumming’s last letter dated January 8, 2019. Evidence of those settlement discussions is not before me, other than the excerpt from the Levy Transcript above, and the possible redacted correspondence.
[166] It is notable in this letter that Cumming makes no mention whatsoever of a threatened Summary Judgment motion. It is also notable in the August 19, 2020 response from Levy, which I discuss below in relation to the Third Reid v Dow Corning Factor, no mention is made by Levy of the Summary Judgment issue, but the change of venue issue is.
[167] In a letter dated August 10, 2020, but apparently from the fax sheet and date imprint actually sent on August 11, 2020 (at Exhibit “SS” of the Holland Affidavit, but not in the Levy Affidavit), sent 455 days after the Dismissal Order, and 6 years 4 months and 5 days from the date of the commencement of the Action, Cumming wrote:
“Given the delay in moving this matter forward, we had a process server attend at the courthouse to check the status of the claim. We have been advised that the file has been inactive since April 7, 2019 and as such has been administratively dismissed for delay.
If the plaintiff does not intend to continue this action moving forward, we should take steps to formally bring litigation to an end.
We look forward to hearing from you both with respect to the above.”
[168] From the fact that Cumming had to send a process server to the Court House on a hazardous mission during COVID to determine what was going on in this Action, it can be inferred that he was receiving no communications from other Parties to the Action, and that he had not received a copy of the Dismissal Order.
[169] There is NO correspondence or evidence from Levy before me that indicates what, if anything, Levy was doing with respect to this Action in the 455 day time period from the Dismissal Order and the date of this Letter from Cumming.
[170] There is no evidence that Levy responded to the previous letter from Cumming sent on January 10, 2020, a period of 7 months, or Cumming’s January 8, 2019 letter, a period of 1 year and 7 months.
[171] In answer Levy in his Affidavit and his testimony indicated that he had been distracted by the illness of his Mother between March 2020 and March 2021. That is partial explanation for delay in that time period. In addition the COVID lockdowns began in March of 2020 and continued into 2021, which is another partial explanation. Levy testified that COVID had affected the practice of his firm due to having to transition to remote work, which is a credible explanation for this time period.
[172] I will credit in this time period Levy with these explanations for the time period between March 1 2020 and the date of Cumming’s letter, a period of 164 days. But there is no explanation, at all, for the remaining 291 days of delay from the Dismissal Order to March 1, 2020.
[173] I will deal specifically with the time period after August 11, 2020 in the sections on the Reid v Dow Corning Factors of “Timeliness of Bringing this Motion” and whether the “Dismissal Order was issued as a result of inadvertence”. However, I must note that the Injury occurred 10 years and 3 months prior to this issuance of these Reasons, and this Action was commenced 8 years and 4 months prior to the issuance of these Reasons. I will discuss the implications of that in the section dealing with the Reid v Dow Corning Factor of Prejudice.
Conclusion
[174] This is not factually similar to cases like Reid v Dow Corning, Prescott, H. B. Fuller, Scaini, Hamilton, Iacolucci, Micallef, Vaccaro, Ross v Hertz, or Kamboj where only pleadings had been exchanged and no further steps taken, for the very particular factual reasons in each of those case. Attempting to apply cases under the prior rules also has to be done with care, and with a view to the specific factual situation in those cases, as the rules under which they were decided were so different from the current 5 year rule 48.14, as I have summarized in Schedule A.
[175] Factually this case is more similar to Muscaj, Finlay, Aquas, Cornell v Tuck, Machchek, Marche, Naclerio, and Manufacturers Life v Enveron where some stage of discoveries had been completed, and some other issues had been dealt with.
[176] Grillo is also a case where factually pleadings had been exchanged, and a draft discovery plan discussed, but the action got stuck on amending the reply and an affidavit of documents was delivered by the Plaintiff 14 months after the dismissal Order. But Pinto J., and now the Court of Appeal, in Grillo have now given very clear, up to date guidance as to how the delay is to be calculated to determine whether there was an explanation for the delay, that I am bound to follow.
[177] I cannot find on my review of the Jacqueline Affidavit and her testimony in the Jacqueline Transcript a specific admission to abandon this Action. Jacqueline states in her testimony that she and Zamir had told Levy to continue the Action to Trial after the failed mediation in 2017. There is some evidence she contacted Levy in 2021 to inquire the status of the Action, and an answer to an undertaking from her cross-examination states that Levy advised her of the Dismissal Order in March 2021, possibly the same call.
[178] But it was also Jacqueline’s evidence that Levy never told her about the issues relating to the change of venue issue and never requested her instructions on the issue. Jacqueline testified that she trusted Levy to protect her interests, but here is no evidence before me that the Plaintiffs communicated with Levy at all in the three years and three months between December 2017 and March 2021 about the delay of the Action, the change of venue and summary judgment issues, or any other issue.
[179] The Plaintiffs’ evidence is not quite a “Bald assertion” that they always intended to proceed with the action without further evidence, but it is also not quite the evidence expected to prove the Plaintiffs’ intention to move the Action forward without delay, as described by Master Dash in Reid v. Dow Corning:
“The plaintiff could explain that the action was stalled due to the inattention or negligence of her solicitors which was contrary to her own instructions or expectations. It is absolutely essential that the plaintiff lead satisfactory evidence that she personally always intended the action to proceed to trial without delay, that she did not assent to the delay, and that she always reasonably assumed it was so proceeding or made appropriate inquiries of her solicitors.”
[180] On my analysis above, I have calculated the unexplained delay in the various phases of this Action, summarized as follows:
Alam Representation: No unexplained delay
Levy Representation to end of Discoveries in October 2016: No unexplained delay
Discoveries to Mediation in December 2017: Delay but cannot be exclusively attributed to the conduct of Levy and the Plaintiffs
Mediation to Dismissal Order May 2019: 475 days or approximately 1 year and three months of unexplained delay by Levy
Dismissal Order until discovery of Dismissal Order in August 2020: 291 days of unexplained delay by Levy
[181] On my review it appears that there was approximately 766 days of unexplained delay, or just over 2 cumulative years, all during the period of Levy’s representation of the Plaintiff’s commencing February 9, 2015, including a 1 year and 3 month period of silence and inactivity from November 14, 2018 until August 11, 2020 (for which I have credited Levy for the period of March 1, 2020 at the start of COVID and the issues that Levy had with his Mother’s health, which I have accepted as explanations) of which I have found there is no viable explanation, including with respect to the change of venue and summary judgment issues raised by Levy for the reasons I have set out above. It appears that neither Levy or Cumming took any steps to bring a motion for their respective issues in that time period, and for which there is no evidence Levy ever communicated with his clients to obtain instructions about this matter.
[182] As stated by Pinto, J. in Grillo, as upheld by the Court of Appeal:
“For the reasons above, I find that Grillo did not provide a satisfactory explanation for at least one year of delay in the First Period, two and a quarter years in the Second Period and three months of delay in the Third Period. Cumulatively, I find no satisfactory explanation for these three and a half years of delay over the five year period. I find that Grillo did not demonstrate that he always intended on prosecuting the action, an observation raised by his own lawyer, Mr. Cohen. Finally, Grillo did not convince me that the defendants will not face significant prejudice in presenting their case at trial as a result of Grillo’s delay. That Grillo sought to set aside the Registrar’s dismissal reasonably promptly, does not override the other factors or disturb my overall conclusion that this case is one of very significant and inexcusable delay, and one that should not be reinstated.”
[183] Unlike Grillo, in this case there was not the last minute attempt by Levy to move the Action along, and where in Grillo an affidavit of documents was served by the Plaintiff 14 months after the Dismissal Order.
[184] Effectively after the Mediation, and the letter sent by Levy on December 22, 2017, the entirety of Levy’s substantive activity in this Action, in evidence before me, in the 2 year and almost 8 month period until Cumming advised him of the Dismissal Order on August 11, 2020 was the sending some medical records and one email on January 16-17, 2018, and 9 months later some scheduling emails leading to a call with Horkins on November 14, 2018.
[185] Nothing else. For 2 years and 8 months.
[186] This is factually less activity than even the facts in Grillo as stated by Pinto, J., which collective delay the Court of Appeal termed “egregious”:
“[71] I also find the Master’s statement that “various counsel for Grillo were responsive to and regularly communicating with Mr. Parley” (para. 58), to have no basis in fact and to constitute a palpable and overriding error. On the Master’s own facts, Grillo’s first two lawyers were not communicating with opposing counsel for long stretches of time. Between the end of settlement discussions in March 2015 and November 2017, a period of over 30 months or two and a half years, there were three, or at best five, email and/or telephone exchanges.”
[187] In these circumstances, for the purposes of this test on the first of the Reid v Dow Corning Factors, taking into account all of the evidence before me, I find that Levy and the Plaintiffs have provided no satisfactory explanation for over 2 years of cumulative delays, and in particular the silence and inactivity after the November 14, 2018 call with Horkins.
[188] Following the test in Grillo, I do not find that the Plaintiffs’ "explanation for his delay was satisfactory" and the Plaintiffs have “…not explained most of the delay and certainly all periods of material delay” as stated by Pinto, J.:
“As stated by the Court of Appeal in DK Manufacturing Group Ltd. v. MDF Mechanical Limited, 2019 ONSC 6853, 2 C.C.L.I. (6th) 203, at para. 18, citing Madore v. Metropolitan Toronto Condominium Corp., 2015 ONSC 4750, at para. 26, “While the explanation need not cover every single minute of delay, it must still explain most of the delay and certainly all periods of material delay.”
[189] Following Marche I do not find that the Plaintiffs have satisfied ”… the court that steps were being taken to advance the litigation toward trial, or if such steps were not taken to explain why”.
[190] I can only conclude that this is a situation that Levy "had put the file in abeyance" in the words of the Court of Appeal in Marche, and that Levy “…did not demonstrate that he always intended on prosecuting the action…” as per Pinto, J. in Grillo, as approved by the Court of Appeal, and the Plaintiffs have also not provided evidence that they “…always intended the action to proceed to trial without delay” and “…always reasonably assumed it was so proceeding or made appropriate inquiries of [their] solicitors”.
[191] Accordingly, for the reasons set out above, after weighing of all of the evidence on this Motion, I find that Levy and the Plaintiffs have NOT the met onus of explaining the cumulative delay in this Action, and I find that the first of the Reid v Dow Corning Factors favours the Defendants.
- Whether the issuance of the Dismissal Order was due to inadvertence and was there always an intention to prosecute the Action within the time limits:
[192] According to the evidence of Levy, the Dismissal Order was issued due to the fifth anniversary of the commencement of this Action not being diarized in the firm’s Tickler system when the file was transferred from Alam. His specific testimony in the Levy Affidavit states:
“21. Due to inadvertence my office did not serve and file a trial record within five years of the subject action's issuance.
My office did not diarize the five year anniversary for this claim. This unfortunately did not occur due to inadvertence when my office assumed carriage of the within action from Alam Law Office whom was the initial lawyer for the Plaintiffs and issued the Statement of Claim. Typically my office diarizes the five year anniversary when we issue a Statement of Claim, but have to remember to check when we assume carriage of an already issued action.
Despite the omission to diarize and serve a trial record within five years of the subject claim's issuance, the Plaintiffs have always intended to prosecute this claim.”
[193] Levy’s testimony on this issue at the Levy Cross-Examination was:
125 Q. And so where you go on to say here, in the end of paragraph 22:
"But have to remember to check when we assume carriage of an already-issued action." (as read) So was there a different process in place, or a different practice that was followed, when you were assuming an already-issued action from another firm?
A. I think, in practice, what happened was that when you have a claim of your own and you are issuing the claim, at the time, you would put in all of the reminders. But when you took over a claim where there -- a lot of the other reminders weren't necessary when a claim had already been issued, or claims were even further down the road. And so it required, you know, a little bit of additional thought. It was, you know, not a perfect system, and it required some additional thought to make sure that the -- you know, to identify those that had been captured, those that hadn't been captured, and make sure those were diarized.
126 Q. So, essentially, the diarization of the five-year deadline into the reminder system was something that was, you know, more or less institutionalized into new-file opening, but there wasn't such a practice for assuming files from other firms?
A. Sorry. Say that one more time.
127 Q. So I think what I am understanding from you is that for new-file opening, the diarization of the five-year deadline was institutionalized into the process of opening the file. Is that fair?
A. Okay.
128 Q. But when you are assuming a file from another firm, you don't have the same process?
A. No. The same process existed. You just had to remember to do it. And, you know, I still think that -- or I shouldn't say I still think. I think that the remembering -- you know, the two-year limitation to issue a statement of claim is still probably more top of mind for people than the "five years after the claim, the claim can be administratively dismissed" deadline. I just think there is a top-of-mind difference between those two things.
129 Q. Yeah. And is the difference that there is a system, when you are issuing a claim for the first time, where, you know, somebody from Accounting is asking you to put this information into the system, and that that is not happening when you take on an existing file?
A. No. So I think it was more that, again, the assistants who would undertake these tasks when they were opening new files were -- you know, they had a specific sort of pattern of process for new claims. And it was a little murkier, let's just say, for take-over files which came, you know, at different stages. Sometimes they had been through -- you know, sometimes we took over cases that had already been set down. So there was, I will say, an extra step there to figure out the exact status of the claim and, you know, make sure that whatever needed to be diarized, was.
130 Q. And with that sort of extra step and the murkier process for taking on existing files from another firm, would you say that that created more room for human error?
A. I suppose.
131 Q. So you say in this case specifically, in this paragraph 22, that:
"The diarizing of the five-year deadline unfortunately did not occur, due to inadvertence, when my office assumed carriage of the within action from Alam Law Office." (as read)
When you say "inadvertence, " specifically what happened that resulted in the deadline not being diarized?
A. I am not really sure how to answer that. It didn't get diarized. I mean, that is -- it is as simple as that.
132 Q. Whose inadvertence at your firm resulted in the deadline not being diarized?
A. Well, directly, it would have been my assistant at the time.
133 Q. And was that Ms. Hudson?
A. Yes.
134 Q. And she reports to you. Correct?
A. Yes.
136 Q. Did you make note of the date the claim was issued when you assumed carriage of the file?
A. I can't answer that. I don't recall.
137 Q. So you don't recall whether you calculated the five-year deadline when you received
136 Q. Did you make note of the date the claim was issued when you assumed carriage of the file?
A. I can't answer that. I don't recall.
137 Q. So you don't recall whether you calculated the five-year deadline when you received
139 Q. So generally speaking, around this time, under your circa 2015 system for these things, when you took in an existing file from another firm, was it your practice to tell your assistant, "Hey, remember to diarize the five-year deadline, " or did you assume that she knew to do that?
A. With Ms. Hudson, who was a pretty experienced assistant, you know, less specific instruction was typically required. And, again, I don't have a specific recollection of this day, you know, six years ago, or whatever this was. But she is not someone who I typically had to, you know, spell out all the As, Bs and Cs for.
140 Q. And after taking carriage of the file from Mr. Alam, and between that point and when the five-year deadline actually expired in April 2019, do you recall at any point reviewing the statement of claim and considering the fact that the five-year deadline would expire in April 2019?
A. I do not recall doing that, no.
[194] Levy was a credible forthright witness about the administrative factors in his office that contributed to the dismissal of this Action. I have no reason to doubt his testimony that this Action had not been diarized in the tickler system of his firm when he took over the Action from Alam. I accept that this was a factor in Levy not setting this Action down for trial by the date of the Dismissal Order. But it was not the only or even predominant factor.
[195] In his testimony Levy advised that in addition to him on this file, Orit Winkler was doing all of the usual clerking tasks with respect to this Action and was an experienced law clerk. His assistant Ms. Hudson was an experienced legal secretary. Given that the error alleged to be the root cause of the issuance of the Dismissal Order was the failure by Hudson to diarize the five year period, Levy, Winkler and Hudson each would have appreciated the 5 year issue.
[196] Levy admits he did appreciate it in his testimony. It is unclear to me why, even without diarization, none of these experienced litigation professionals sensed the looming R.48.14 date. It may be that no one looked at this file in this time period, but there is no evidence before me of this either, which would be additional evidence for the first Reid v Dow Corning Factor if there was.
[197] In his December 22, 2017 letter Levy states:
“I understand from Ms. Kohli that her instructions are not to bring a summary judgment motion, and thus the case can be listed for trial at this time.”
So Levy was cognizant of the need to set the matter down for trial, and says so 1 year and 3 months prior to the date when he needed to do so. Why did sending this letter not trigger some kind of “Bring forward” or tickler entry by Levy?
[198] But as I belaboured above, apart from sending medical records and an email in January 2018, and a call with Horkins in November 2018, Levy, from the evidence before me does absolutely nothing until Cumming advises him on August 11, 2020 of the Dismissal Order 2 years and almost 8 months from the date of this December 22, 2017 letter indicating the need to set this Action down for trial.
[199] At August 11, 2020 Levy had been counsel for the Plaintiffs for 5 years and 6 months since February 9, 2015, or more than the full 5 year R.48.14 period, notwithstanding the transfer from Alam. Why did more than 2 ½ years go by without something triggering a dormant file review?
[200] There is no evidence before me that had Cumming not sent the paralegal to do the detective work during COVID to find out what was happening in the Action, and alerted Levy of the Dismissal Order, that Levy would have ever taken any further steps in this action, as at that point there had been no activity at all since the November 14, 2018 call with Horkins, a period of 20 months, despite Cummings’ prodding in three separate pieces of prior correspondence.
[201] From the evidence before me Levy had never taken any steps, or ever sought instructions, to deal with the venue issue or the Summary Judgement issue that were allegedly bedevilling the setting down of this action for trial, from December 22, 2017 until August 11, 2020.
[202] This cannot be termed “mere inadvertence” on the part of Levy, and does not demonstrate an intention to prosecute the Action within the time limits, and is more akin to the conduct described by Sharpe, J.A. in Marche (at 27) cited by the Defendants, that:
“I agree with the Master that, in light of the length of the delay and the fact that it was caused by the solicitor effectively abandoning the file, this is not a case where the failure to move the case along to trial can be considered as mere inadvertence.”
[203] In Marche pleadings and discoveries had been completed, as in this case, but the action stalled at a motion to strike. The conduct of the various lawyers for the Plaintiff in Marche was much more serious than the conduct of Levy in this case, involving issues of the inability to get on the record, and failures of prior counsel to assist subsequent counsel, but there were unexplained gaps of years in Marche as well. The conduct of Levy in this Action is more akin to holding the action in abeyance than a complete abandonment for 4 years like Marche.
[204] Both the Plaintiffs and Defendants cite Muscaj in their Facta. In that case, as here, the lawyer for the Plaintiffs took over the file one year after the claim was issued and completed discoveries and undertakings, some settlement calls had been held, and a mediation conducted, albeit after the dismissal date.
[205] Emery, J. in Muscaj stated:
“[55] This activity does not amount to an acceptable pace of litigation. There is no evidence to explain the yawning gap of 17 months between the settlement call on February 23, 2015, and the next contact by Ms. Gosai’s office to arrange another call in July 2016.”
[206] The evidence of the lawyer in Muscaj (but not the Plaintiff, who filed no evidence, unlike this case) on the motion to set aside the dismissal to explain that 17 month period was that she intended to set the matter down for trial if it did not settle. Emery J. rejected that evidence on the issue of inadvertence and intention to prosecute within the time limits, stating:
“[59] The evidence given in paragraph 74 of Ms. Gosai’s affidavit is therefore the only evidence of an explanation why the action was not prosecuted with diligence; and it proves the point that she was focused on settlement alone. Ms. Gosai then states in paragraph 77 that she intended on setting the action down for trial if the file did not settle, and that it had always been the intention of the plaintiff and of hers to proceed with the action.
[60] These bald statements are starkly out of context with other evidence on the motion. They are not satisfactory evidence, nor do they provide an adequate explanation, of the failure to proceed with the action by setting it down for trial within the time limits through inadvertence. It would have been a straight forward process to assemble, serve, and file the trial record to set the action down. Following through in this manner would have also provided Ms. Gosai with a golden opportunity: to discuss settlement at a pre-trial conference, with a judge or Master.”
[207] Having dealt with the issue of the conduct of the Plaintiff and Levy with respect to the first of the Reid v Dow Corning Factors regarding the lack of explanation for the delay and that I have found in this case that this Action had been put in abeyance, for reasons that have not been explained, I will not repeat that factual analysis here.
[208] In Grillo, Pinto, J. (at [52]) states on the issue of inadvertence:
“I understand “prosecuting the action” to mean “moving it forward”, so the correct question to be asked is, did Grillo always intend to move this action forward. I find that, by the Master’s own assessment, the answer is no. The Master declared that Grillo stopped being a litigant during the Second Period and slumbered for two and a quarter years (para. 38). I fail to see how one can equate no longer being a litigant and slumbering for such a long time, with having an intention to move the action forward?”
[209] Applying Grillo, I find that, for the reasons set out in detail under the first Reid v Dow Corning Factor above, Levy and the Plaintiffs did in fact inexplicably “slumber” for the period after the exchange of documentation in December 2017-January 2018, until the call with Horkins on November 14, 2018, a period of over 9 months, and certainly in the period after that November 14, 2018 call until at least March 2020, when there may be an explanation due to COVID and Levy’s mothers health, a period of over 16 months, cumulatively just over 2 years, interrupted only by the November 14, 2018 call.
[210] In those circumstances, like in Grillo I “…fail to see how one can equate…slumbering for such a long time, with having an intention to move the action forward” and therefore cannot find that this conduct was “inadvertent”.
[211] Applying Muscaj, cited by both parties on this Motion, to these facts due to the lack of an adequate explanation for the delays I have identified above, I find that the Plaintiffs have also failed to provide an adequate explanation for the failure to proceed with the action by setting it down for trial within the time limits through inadvertence, and the intention to always prosecute the Action within the time limits. Although Jacqueline did provide evidence in this case, there is no evidence of what she did to ensure the Action moved along in the period from the December 2017 mediation to the date of the Dismissal Order.
[212] The failure to diarize the 5 year period when the Action was transferred from Alam cited by Levy could certainly be a contributing factor, but the long unexplained periods of delay with no activity whatsoever, including almost a year and three months after the date of the Dismissal Order with no activity at all, only interrupted by the detective work of Cumming by advising Levy of the Dismissal Order on August 11, 2020, cannot be explained merely by the failure to diarize the 5 year date.
[213] In these factual circumstances, as set out in detail above, and in reviewing the totality of the evidence before me I cannot find that the Plaintiffs have met the onus of proving that the issuance of the Dismissal Order was due to mere inadvertence and that there was there always an intention to prosecute the Action within the time limits.
[214] Accordingly, in the weighing of all of the evidence on this motion, I find that the Plaintiffs have not met the onus to prove this second Reid v Dow Corning Factor and that this factor favours the Defendants.
- Whether the motion to set the dismissal order aside was brought promptly once the Plaintiffs became aware of it
[215] After the appointment of by LawPro of Covens on February 12, 2021, the Notice of Motion was served by Covens on February 22, 2021, a period of 10 days. A Case Conference before Associate Justice Brott was held on March 30, 2021 and a case timetable set. This Motion was scheduled to be heard on December 2, 2021, but due to judicial availability was adjourned to be heard by me. I find no issue with this timing of the bringing of this Motion by Covens, who moved with, in relative terms, lightning speed.
[216] The Defendants did raise the issue of the timing of the receipt by Levy of the Dismissal Order and the time it took Levy to alert LawPro, alleging that constituted further unexplained delay.
[217] There is no explanation by Levy in the Levy Affidavit of the reasons why he was not aware of the issuance of the Dismissal Order, but in the Levy Transcript he states:
“248 Q. I am just going to -- this is tab 8 of your motion record, which is the order dismissing the action for delay. Did your firm receive a copy of this order from the Court?
A. So it did. I can tell you, after the fact, that we did receive the order.
249 Q. And when was it received?
A. It was received maybe a week or so later.
250 Q. So a week after May 15, 2019?
A. Yes.
251 Q. And how did it -- like, did it come to your attention after that? I take it, it did not?
A. It did not come to my attention.
252 Q. And why did it not come to your attention after it was received?
A. So, that, I can't answer. I can tell you that the process for these documents, when they are received in my office, is that they are scanned, put in the file, put in the electronic file, and also put in, or supposed to be put in, my electronic in-box. The latter never happened.
253 Q. Okay. Would you agree with me that, in a plaintiff civil litigation practice, something that comes in the door with the name "order dismissing action for delay" is generally something that should come to your attention immediately?
A. All my mail is supposed to come to my attention immediately. The staff who scan the incoming mail is not tasked with triaging the importance of mail that arrives.
254 Q. Does anybody do that for you, like your assistant?
A. No. No. We have -- because of the volumes that come in, there are individuals who are tasked with scanning and distributing the -- again, much of this, at the time, was still in hard copy. Tasked with distributing what arrived.
255 Q. Yeah. So when you are talking about the scanning and electronic, I take it that is what you do now, because you are working remotely. Right ?
A. Yes.
256 Q. And so at the time, in 2019, you are still working in your office. Correct?
A. Correct.
257 Q. And so mail that comes in, in hard copy, would be delivered to you in hard copy?
A. No.
258 Okay.
A. Mail that comes in, in hard copy, is scanned. We do not see -- with very, very narrow exceptions. You know, original client documents and that sort of thing. Right? With very narrow exceptions, we do not see any of the hard paper. It is scanned and delivered to us electronically.
259 Q. Okay. And, you know, I am just trying to understand kind of the process here. Because I know, in my practice, my mail goes to my assistant, and I will tell her things like, you know, "If it is, you know, junk mail from the Canadian Bar Association trying to sell me insurance, you can throw it out. But if it is something that is important, like an order or something like that, then bring it to my attention immediately." Do you have any sort of similar process with your assistant, or do you just receive everything yourself?
A. I receive everything myself. And I then distribute it appropriately, with instructions, as warranted.
260 Okay. And was this order brought to your attention electronically when it came in?
A. It was not.
261 Q. Okay. And what happened to it? Do you know?
A. No. I don't. All I can tell you is that it was not put in my in-box.
262 Q. Okay. And who would have been responsible for that at your firm?
A. One of several individuals who was doing scanning for us at the time.”
[218] There is no evidence before me that Levy actually received notice of the Dismissal Order at some point prior to August 19, 2020 the date on which he testified he read the August 11, 2020 letter from Cumming. There is no evidence before me that the administrative mishap described above did not happen as described by Levy in his testimony, and that he was other than a victim of his mailroom not sending him notice of this Order. There is no evidence before me the any other member of Levy’s firm became aware of the Dismissal Order prior to August 19, 2020, the date he testified that he read the August 11, 2020 Faxed letter from Cumming.
[219] Whether Levy should have known about the possibility of a dismissal order is not evidence. Whether Ms. Hudson or Orit Winkler did, or should have also been reviewing the file, and bringing this issue to the attention of Levy is also not in evidence before me.
[220] Accordingly, on the evidence before me, I find that Levy first found out about the Dismissal Order on August 19, 2020 the date he read Cumming’s August 11, 2020 faxed letter whose text I have set out above.
[221] As noted above, I have factored the delay to learn of the Dismissal Order into the first Reid v Dow Corning Factor, regarding the overall delay as per the Grillo test, as I have found no evidence that Levy was doing anything in the period between the November 14, 2018 call with Horkins and the Dismissal Order, and from the Dismissal Order and the Cumming letter received on August 11, 2020. For this Reid v Dow Corning Factor I am determining the actions of the Plaintiffs after the discovery of the Dismissal Order.
[222] On August 19, 2020, the same day he became aware of the Dismissal Order, Levy emailed Horkins and Cumming stating (Exhibit K to the Levy Affidavit and Exhibit “TT” to the Holland Affidavit):
“Chris and Kendall - I hope you are both well.
We have not spoken in some time. I have Kendall's letter from last week and having looked into this now, it does unfortunately appear that she is correct about the case having been administratively dismissed. This was the first that I am aware of this. I trust that it goes without saying that our client has always intended to carry forward with this matter, and I am asking for your consent to set aside the order and restore this matter to the trial list.
As I recall, there had been some discussion about a consent to change the venue to Coboug [sp] as being the closest to the location of the accident - and a place with a much shorter wait time for trial dates than Toronto. From a quick review of the file, I do not see that I received a response from you on that issue.
May I please hear from you, and should either of you wish to discuss this matter with me, please don't hesitate to call.”
[223] On August 25, 2020 Horkins responded by email copying Cumming (Exhibit K to the Levy Affidavit and Exhibit “UU” to the Holland Affidavit):
“David,
Thanks for your email. I hope you and your family are staying sate and healthy.
You are correct that we have not spoken about this matter in some time. Based on my review of the file, the last time we were in touch was on November 14, 2018. We had a phone call that day where I followed up with you regarding several outstanding matters including outstanding document requests by my clients, and your clients' proposed motion to transfer the action (to Oshawa, not Cobourg, as you note below). These were all items that had been outstanding for some time despite my numerous follow up attempts. We never heard from you with respect to any of these outstanding items in the 21 months since that phone call.
Since the order dismissing the action for delay was sent to all counsel by the court, I find it difficult to believe that you could have been unaware of it prior to receiving Mr. Cumming's letter. Even if the dismissal order was not received by your firm or inadvertently slipped your attention, the Rules provide for the automatic dismissal of all actions that are not set down for trial within five years of being commenced. Your firm would have been well aware of that deadline expiring in April 2019 and ought to have known that the action would be dismissed for delay, since your clients had not set the action down for trial. Your clients made no attempt to advance the action in the 15 months since the dismissal order was issued and never took any step to set the action down for trial (making the reference in your email to "restoring" the action incorrect, since it was never on any trial list).
In fact, aside from some exchanges of correspondence, your clients took no substantive steps to advance this action following the unsuccessful mediation in December 2017. The passage of 32 months without any serious attempts to ready the action for trial certainly suggested, contrary to your statement below, that your clients had little or no intention of pursuing their claims at trial.
My clients will not consent to having the order dismissing the action for delay set aside. I am seeking instructions as to whether my clients will actively oppose the motion since there would very likely be real prejudice suffered due to the lengthy delay, witness memory loss and potential degradation of physical evidence over time.
It would be helpful if you could advise:
Whether your firm, or Mr. Alam's firm, received the order dismissing the action for delay and, if so, when?
Whether your firm has a system in place to diarize the five-year deadline under Rule 48.14 and/or whether any specific steps were taken by your firm in this instance?
What explanation will your clients be providing in their the [sp] motion regarding the 32 month delay in advancing the action and the 15 month delay in addressing the dismissal of the action for delay?
The answers to these questions will all bear on the test your clients would need to meet in order to set aside the dismissal order and will assist with my clients' consideration of their position. Alternatively, if you are ready to serve your motion record, I will consider it and seek instructions on my clients' position after reviewing it.
Chris”
[224] There is no evidence before me that this email from Horkins was ever responded to by Levy.
[225] Levy’s evidence in the Levy Affidavit states:
“34. I attempted to explain what occurred to all counsel and seek consent from the Defendants to set aside the dismissal order but counsel for the Defendants advised on August 25, 2020 they would likely oppose it. Attached hereto and marked as Exhibit K is a copy of the email thread between me and Mr. Horkins from August 19, 2020 to August 25, 2020.
On January 20, 2021 I notified LawPro of the Registrar's administrative dismissal.
On February 12, 2021 LawPro retained Louis Covens of Bruder Springstead LLP.”
[226] In the Levy Transcript, Levy’s testimony on this issue is:
“288 Q. Okay. I am going to go now to my response, which is exhibit UU to Ms. Holland's affidavit. And so I respond on August 25. That is probably where I got that date from. And at the bottom, I say that I am seeking instructions on whether to oppose your request to set aside the dismissal for delay, and that it would be helpful if you could advise as to certain things, and I set out 3 three questions. You never responded to these questions?
A. No. I did not.
289 Q. And we ultimately heard nothing from you until this motion was served in February of 2021?
A. That is correct.
MR. HORKINS: 291 Q. We will leave that for now. From your affidavit, you say that you notified LAWPRO of the dismissal for delay on January 20, 2021. Is that right?
A. Whatever date I put is in the affidavit, yes.
292 Q. And that is five months after you say you became aware of the dismissal for delay?
A. Yes.
295 So, you know, if you want me to take LAWPRO out of the equation, I can just say: why did it take six months for this motion to be brought, after you learned about the dismissal order?
MR. COVENS: Sure.
MR. HORKINS: Okay.
THE WITNESS: Okay. I mean, I don't know, I kind of hear these as all the same question dressed up a little differently. So I will go ahead and answer it. Chris, when I got your e-mail, it was quite apparent to me that there was no chance that you were going to consent to this. And so I anticipated, from that moment, that this would always be opposed. I was uncertain at the time about exactly how -- what was the best way to go ahead with it in -- you know, I am aware of a certain practice within, you know, the personal injury bar about how these things are often dealt with, and I considered basically trying to resolve this with you directly. But then I didn't really think that no matter what I said or did, that you or your client were ever going to agree. And so, you know, my mind then turned to, well, I should get LAWPRO involved, as would be the appropriate thing to do if I have made an error of this sort and might potentially prejudice the client.
And then the other part of this is that was a particularly tough time for me. We put some information in my affidavit about my mother, who had been diagnosed with a brain tumour earlier that year. And a fair bit of responsibility fell on me in terms of dealing with her treatment and care. You know, particularly complicated, as this was going through the pandemic. And that was, you know, a particularly taxing time for me personally and emotionally, as you might imagine, I hope. And I didn't, you know, get to it then as quickly as, with the benefit of hindsight, I wish I had.”
[227] I have accepted that explanation regarding the illness of Levy’s mother for the purposes of delays occurring in the period of March 2020 to March 2021, as well as the effects of COVID on Levy’s law practice, that would have continued despite some restrictions being raised by September 2020.
[228] In Iacolucci, cited by the Plaintiffs, the Plaintiffs’ counsel found out about the Dismissal Order 2 years after issuance, allegedly as a result of not receiving the Order, there was a 5 month delay to inform LawPro, and LawPro counsel took 2 months to bring the motion to set aside the Order. In that case Spies, J. states:
“In this case the delay between discovery of the Dismissal Order by Mr. Lissaman in September, 2015, and Mr. Esterbauer initiating the motion proceedings in February, 2016, is not so unreasonable that it cannot be excused.”
[229] In this case, after the email from Horkins’ email of August 25, 2020 indicating that the Defendants would not be consenting to the setting aside of the Dismissal Order, Levy Reported the issue to LawPro in January, and Covens brought the Motion in February, virtually the same time frame as Spies, J. found to be “not so unreasonable”, with the excusing factors of the health of Levy’s Mother, and the lingering administrative effects of COVID, that I have accepted.
[230] I therefore find that the motion to set aside the Dismissal Order was brought promptly by Covens after being appointed by LawPro, and that the period it took Levy to contact Horkins and Cumming, and to advise LawPro after receiving the position of the Defendants was “not so unreasonable”, based on the evidence before me of the explanations provided by Levy as to why it took him from September to January to report the matter to LawPro.
[231] Accordingly, in the weighing of all of the evidence on this Motion, I find that this Motion was brought promptly, and I find that this third Reid v Dow Corning Factor favours the Plaintiffs.
- Whether the delay has prejudiced the defendant
[232] The following test from Finlay, a case cited by both Parties, at para 25 (citing Marché) is instructive on this issue:
“(4) 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.”
[233] Muscaj, cited by the Plaintiffs on other issues states:
“[63] The burden is on the plaintiff, and not on the defendant to establish prejudice on a motion of this nature: see Jadid v. Toronto Transit Commission at paragraphs 63 and 85. Further, there is no requirement for the defendant to adduce evidence of actual prejudice. This is particularly the case if the plaintiff has not been able to provide a satisfactory explanation for the delay: 1196158 Ontario Inc. v. 6274013 Canada Ltd.”
[234] In Prescott the Court of Appeal states:
“[33] Prejudice is a key consideration on a motion to set aside a dismissal order: Finlay v. Van Paassen (2010), 101 O.R. (3d) 390, [2010] O.J. No. 1097, 2010 ONCA 204, at para. 28.
[34] In addressing this issue, it is important to consider the different aspects of prejudice. In Reid, the focus is on whether a defendant would suffer "any significant prejudice in presenting their case at trial" (para. 41). The emphasis described in that decision is on the impact of delay on a defendant's ability to mount a defence to the plaintiff's claim.
[35] However, in Marché, Sharpe J.A. identified an additional dimension to the fourth Reid factor: security of legal position and finality [at paras. 36, 38 and 40]:
“[A]s the Master correctly observed, the jurisprudence from this court identifies as relevant to the fourth Reid factor the security of legal position gained [page626] by a litigant through a court order granted because of delay or default: see Halton Community Credit Union Ltd. v. ICL Computers Canada Ltd., supra.
Even when the order dismissing the action was made for delay or default and not on the merits, and even when the party relying on the order could still defend itself despite the delay, it seems to me that at some point the interest in finality must trump the opposite party's plea for an indulgence.”
I agree with the Master that, when viewed in the light of a delay of this magnitude, the security of the legal position obtained by the appellant becomes an important factor to consider. Five years after the action against it had been dismissed, the appellant was entitled to rest on the assurance that the judicial system had disposed of the respondents' claim once and for all.
[36] As such, in considering the fourth Reid factor, the master was required to address
(i) did the appellants satisfy their onus to establish no significant actual prejudice to the respondents' ability to defend the action as a result of the appellants' delay; and
(ii) whether in light of the delay, the principle of finality and the respondents' reliance on the security of its position should nevertheless prevail. See H.B. Fuller, at para. 28.
[37] There is no need to resort to presumptions or inferences of prejudice. The question as described by Sharpe J.A. in Marché is simply whether the interest in finality must trump the opposite party's pleas for an indulgence.”
[235] The full quote from Marche, cited above on this topic of factors to be dealt with in determining whether the Plaintiff has satisfied the Court that there will be no prejudice, linking prejudice to the finality principle, states:
“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 the plaintiff an indulgence is generally favoured.
35 While I view the Master's finding that the appellant would not be prejudiced in presenting its case despite the delay to have been generous to the respondents, that finding was not challenged before us. This aspect of the fourth Reid factor and the underlying value of having disputes resolved on their merits favour the respondents. However, it is not enough for the respondents to show that the appellant could advance its case despite the delay if the matter were allowed to proceed to trial. There are four branches to the Reid test, and, according to Scaini, those four factors are not exhaustive.
36 Moreover, as the Master correctly observed, the jurisprudence from this court identifies as relevant to the fourth Reid factor the security of legal position gained by a litigant through a court order granted because of delay or default: see Halton Community Credit Union Ltd. V. ICL Computers Canada Lid ., supra.
37 Finality, like the avoidance of unnecessary delay, is a central principle in the administration of justice. "The law rightly seeks a finality to litigation" and finality is "a compelling consideration": Danyluk v. Ainsworth Technologies Inc ., 2001 SCC 44, [2001] 2 S.C.R. 460 (S.C.C.) at paras. 18 and 19.
38 When an action has been disposed of in favour of a party, that party's entitlement to rely on the finality principle grows stronger as the years pass. Even when the order dismissing the action was made for delay or default and not on the merits, and even when the party relying on the order could still defend itself despite the delay, it seems to me that at some point the interest in finality must trump the opposite party's plea for an indulgence. This is especially true where, as in the present case, the opposite party appears to have another remedy available.
39 The delay in this case was inordinate. From the appellant's perspective, the respondents did absolutely nothing to move this file forward for more than five years, and before that, the respondents had proceeded in what could only be described as a desultory fashion for two and one-half years after commencing the action.
40 I agree with the Master that, when viewed in the light of a delay of this magnitude, the security of the legal position obtained by the appellant becomes an important factor to consider. Five years after the action against it had been dismissed, the appellant was entitled to rest on the assurance that the judicial system had disposed of the respondents' claim once and for all.”
[236] H.B. Fuller, cited by the Plaintiffs, states the following with respect to the determination of prejudice on a motion to set aside a Dismissal Order:
[37] I turn now to the manner in which the motion judge assessed prejudice. Recently, in MDM Plastics Ltd. v. Vincor International Inc., 2015 ONCA 28 [2015] O.J. No. 265, at para. 25, van Rensburg J.A. explained how prejudice must be considered:
The prejudice that the motion judge or master must consider is to the defendant’s ability to defend the action that would [arise] from steps taken following dismissal, or which would result from restoration of the action following the registrar’s dismissal. [Citations omitted.]
[38] A presumption of prejudice can arise from the passage of time, such as the expiry of a limitation period or, as here, the death of a witness. However, the plaintiff will not necessarily fail to rebut this presumption simply because he or she does not adduce affirmative evidence:
“Rather, in evaluating the strength of the presumption of prejudice the master or motion judge, must consider all of the circumstances, including the defendant’s conduct in the litigation. [MDM, at para. 32. citations omitted.]”
[237] H.B. Fuller also states (at Para. 42):
“[42] Although it is incumbent upon a plaintiff to conduct its action in a proactive manner, it is unfair in the circumstances of this case to ignore CPI’s passivity. As Rosenberg J.A. stated for a majority of this court in Aguas, at para. 19, while “the appellant, as plaintiff, bore responsibility for moving the action along … respondents' counsel's lack of display of any sense of urgency undercuts the claim of actual prejudice.” In the circumstances, the motion judge’s reliance on Faris without considering the significant factual differences between that case and this, and his failure to consider the actions of the respondent, led him to err in his assessment of prejudice.”
Position of the Defendants:
[238] In their Factum the Defendants state their position on the general test for prejudice:
“59. Prejudice is a "key consideration on a motion to set aside a dismissal order".[citing Finlay] Where an action has been dismissed for delay, prejudice is presumed. In Jadid, the Ontario Court of Appeal held that "there is no requirement that the respondent adduce evidence of actual prejudice. Prejudice can be inferred from the mere passage of time." The plaintiffs bear the heavy onus of overcoming this presumption of prejudice. [citing Grillo- Pinto, J.] In this case, the plaintiffs have provided no evidence capable of rebutting the presumed prejudice arising from their delayed prosecution of the action. The defendants, in contrast, have demonstrated that they will suffer actual prejudice if the Dismissal Order is set aside.
This case involves both presumed and actual prejudice. The defendants will be significantly prejudiced if this action is revived due to the loss of physical evidence and deterioration of witness memories in the nearly 10 years since the Incident. The evidence of real prejudice differentiates this case from those cited by the plaintiffs where the court was inclined to grant an indulgence to plaintiffs who had missed a deadline due to the inadvertence of their counsel. If required to defend a trial more than 10 years after the Incident, the defendants in this case will be prejudiced by the loss of this key evidence in mounting their defence.
As set out above, Dr. Weishaupt's evidence establishes that a reliable failure analysis of the prop rods is no longer possible due to the expected material degradation of the prop rods' polymer components in the nearly 10 years since the Incident. Any expert opinion obtained for trial will be unreliable and may need to be qualified as such.”
[239] The full quote from Finlay cited above by the Defendants reads:
“28 The motion judge did not engage in this weighing exercise. Indeed, he did not even consider the issue of prejudice, which invariably is a key consideration on a motion to set aside a dismissal order: see Farrar v. McMullen (1970). 1970 CanLII 555 (ON CA), [1971] 1 O.R. 709 (Ont. C.A.).”
[240] The full quote from Jadid cited above reads:
“16 Nevertheless, as the motion judge noted, there is no requirement that the respondent adduce evidence of actual prejudice. Prejudice can be inferred from the mere passage of time: 1196158 Ontario Inc ., supra, at para. 32. The motion judge found that, in the particular circumstances of this case, the ability of the respondent to defend the claim was in fact compromised:
[85] The occurrence report filed by the driver the day after the incident is the only evidence the defendant has and will likely ever have to counter whatever the plaintiff's version of events when she alleges negligence of the defendant. That report is terse - it is highly doubtful that it will be able reliably to be supplemented with revived actual memory this many years after the fact. The ability of this or any defendant similarly situate to defend a claim this old and of this nature on the issue of liability has certainly been compromised. Once sharp and persuasive evidence may lose a considerable amount of its punch when reduced to an antiseptic reading of an occurrence report ten or more years after the fact without the ability to contribute any meaningful additional details. Such prejudice is progressive and almost impossible to quantify. I conclude from the totality of the evidence before me that the defendant's right to a fair hearing has been impaired by the passage of time through the inaction of the plaintiff.
17 The motion judge thus concluded that there was non-compensable prejudice to the defendant. In my view, he made no error in coming to this conclusion.”
[241] The full quotation from Grillo at paragraph 63 cited by the Defendants does not exactly say what the Defendants say in their Factum, the relevant parts of Pinto, J.’s decision dealing with the onus on the Plaintiffs stating:
“[63] The Master erred by reversing the burden of proving prejudice, deciding this factor largely on what he saw as the defendants’ failure to demonstrate significant prejudice. At para. 67, the Master stated the following:
“My view, when considering the entirety of the affidavit of Ms. Kagan, is that significant prejudice is not shown in the context of the passage of five years, as well as in the context of this case, generally.”
[64] Earlier in these reasons, I also referred to several points in the Master’s decision where he placed the onus on the defendants to complain about the delay, and warn Grillo about the pending dismissal. This error continues in the Master’s discussion of prejudice.
[68] The Master did not place the onus on Grillo to demonstrate that the defendants are wrong about the importance of viva voce client evidence to the case, or require Grillo to show that the relevant clients are still available for trial. Yet, the Master concluded the following, with respect to the fourth Reid factor on prejudice:
“I find that the plaintiff has through the subsequent delivery of an Affidavit of Documents and the production of documents, as well as through its submissions, demonstrated that while there may be some prejudice to the defendants, such is not significant in the context of this matter where the key witnesses, after all, will likely be the main protagonists, along with some others.”
[69] I find the Master’s conclusion contains both legal, and palpable and overriding errors of fact. First, the Affidavit of Documents, based on its description in the Master’s decision, is unlikely to address the oral retainer issue, one of the key issues at trial. Second, no documents have, in fact, been produced in the action. The Master’s factual finding in this regard amounts to a palpable and overriding error. Finally, given that the “main protagonists” (which I take to mean the parties themselves) are likely to have opposing positions at trial, it was incumbent on the Master to explain who the “some others” are and how, at this late stage, their evidence could be secured. While Grillo, in his affidavit, deposes that the potential witnesses were Ms. Kagan’s clients after they left Grillo, and that the defendants would be in the best position to contact them, there is no property in a witness; these clients were also Grillo’s clients before they were Ms. Kagan’s, and the onus at the reinstatement motion was squarely on Grillo, not on the defendants, to address the prejudicial impact of delay.
[75] In summary, on the fourth Reid factor of prejudice, the Master erred in finding that there was no significant prejudice to the defendants in presenting their case at trial. The Master arrived at this conclusion by improperly doing the following:
a) reversing the burden of proving prejudice and placing it on the defendants;
b) giving undue importance to an Affidavit of Documents delivered by Grillo 14 months after the administrative dismissal; and
c) suggesting that the defendants’ request to amend para. 2(f) in the Reply prevented Grillo from moving the action forward.
[76] Ultimately, these errors caused the Master to lose sight of the real difficulty faced by the defendants in presenting their case many years later at trial, i.e. the fact that their case would depend on former clients’ viva voce evidence about the client retainer.”
[242] On the general topic of loss of physical evidence and fading memories, the Defendants state as follows in their Factum:
“65. This court has recognized that the loss of physical evidence and fading memories of witnesses is an especially significant source of prejudice in product liability claims. In DK Manufacturing Group Ltd v MDF Mechanical Limited, this court found that the plaintiff had failed to show cause at a status hearing that its action should not be dismissed for delay, stating:
“In my view, a presumption of prejudice clearly arises on the facts of this case. There has been a significant lapse in time between TIF's installation work and the motion being brought. [ ... ] I agree with TIF's submission that this is not a documents case, and that inspection of the sprinkler system and witness memories of events such as pre-loss installation, inspection and maintenance of the sprinkler system will be significant at the trial of this action.”
This case is also "not a documents case" and the loss of physical evidence and witness memories over time should similarly give rise to a finding that the defendants will be significantly prejudiced if the Dismissal Order is set aside.”
[243] The actual findings of Associate Justice Robinson on prejudice in DK Manufacturing read:
“26 Because the test is conjunctive, my determination that the plaintiffs' have failed to meet their onus of providing an adequate explanation for delay is sufficient to order dismissal of this action. However, in case I am wrong in that determination, I have nevertheless considered prejudice.
27 It is undisputed that the plaintiffs' bear the onus of showing that there is no non-compensable prejudice to the defendants from allowing the action to proceed to trial. The plaintiffs primary argument is that there is no evidence of any actual prejudice accruing from any period since the action was commenced. The problem with the plaintiffs argument is that they have tendered no evidence at all on the issue of prejudice (or lack thereof). The plaintiffs' factum simply asserts a bare argument that there is no non-compensable prejudice because the defendants "have been aware of the claim for many years and were free to conduct due diligence even while the litigation was held in abeyance." As discussed below, in my view, it is significant that the plaintiff's have led no substantive evidence regarding preservation of evidence or availability of witnesses.
28 There is a well-established presumption of prejudice set out in case law. In Langenecker v. Sauve, 2011 ONCA 803 (Ont. C.A.), at para. 11, the Court of Appeal describes how that presumption arises as follows:
“Prejudice is inherent in long delays. Memories fade and fail, witnesses become unavailable, and documents and other potential exhibits are lost. The longer the delay, the stronger the inference of prejudice to the defence case flowing from that delay.”
29 Case law has held that a plaintiff is not required to adduce affirmative evidence to rebut the presumption of prejudice that arises from the passage of time in prosecuting an action or from the expiry of a limitation period, but rather the court must consider all of the circumstances in evaluating the strength of the presumption of prejudice: 1682558 Ontario Limited, supra at para. 6(b).
30 In my view, a presumption of prejudice clearly arises on the facts of this case. There has been a significant lapse in time between TIF's installation work and the motion being brought. The origin and cause report in evidence includes an inspection certificate from TIF dated in February 2009. Accordingly, TIF's installation work was performed sometime prior to 2009. The loss at issue occurred in 2012. This action was commenced in 2014. The limitations period expired several months after the claim was issued. Five years later, no documentary or oral discoveries have taken place. I agree with TIF's submission that this is not a documents case, and that inspection of the sprinkler system and witness memories of events such pre-loss installation, inspection and maintenance of the sprinkler system will be significant at the trial of this action. An inference of prejudice is reasonably drawn from five years passing with no substantive procedural steps occurring, the limitations period having now long-since expired, and both documentary and oral discoveries still remaining outstanding. In my view, that inference is strengthened by the fact that TIF's installation work will be both the subject of trial evidence and the basis of any determination of negligence by TIF, and the work occurred well over 10 years before this motion was brought.
[after discussion of the specific evidence on prejudice]
39 Plaintiffs' counsel submits that it is significant that TIF has tendered no evidence of prejudice. I agree there is no evidence of actual prejudice from TIF. TIF relies on the presumption of prejudice and fading memories of witnesses. However, the primary onus of showing that there is no non-compensable prejudice is on a plaintiff, not a defendant. While the extent of a defendant's evidence (or lack thereof) is a consideration, it does not displace the evidentiary onus resting with a plaintiff. Particularly in circumstances such as this case, where the plaintiffs have failed to tender any evidence at all on the issue of prejudice, accepting the plaintiffs' argument regarding the weight to be placed on the lack of evidence of actual prejudice from TIF would, in my view, amount to placing a greater evidentiary onus on TIF than on the plaintiffs, contrary to established case law.
40 In the circumstances of this action, the complete absence of any evidence from the plaintiffs on what witnesses and other evidence remain available in respect of a loss occurring in December 2012 is, in my view, significant. That information is squarely and solely within knowledge of the named plaintiffs, not TIF. Since documentary discoveries have been completed in the Related Action, and a summary judgment motion was brought and argued, the plaintiffs and Cooperators ought reasonably to know what physical evidence and witnesses remain available.
41 Despite there being no actual evidence from either party on prejudice, I accept TIF's argument that a presumption of prejudice has arisen and, taking into account all the circumstances, I find that a strong presumption of prejudice is properly inferred in this case. In the absence of evidence from the plaintiff on availability of witnesses and relevant documents or other evidence, I find that the plaintiffs have failed to satisfy their onus of demonstrating that there will be no non-compensable prejudice to the defendants from this action proceeding.”
[244] I note that in DK Manufacturing, an opposed motion to obtain a status hearing under R.48.14(5) to set a timetable and avoid a Dismissal Order (a possible step that could have been taken by the Plaintiffs here, but was not) although discoveries had not been completed in the action, discoveries had been completed in a related action, and a summary judgment motion was brought in the related action, from which the Court inferred that the Plaintiffs ought reasonably to know what physical evidence and witnesses remain available, but inexplicably provided no evidence of on the motion to meet their onus regarding a lack of presumed prejudice, including the availability of witnesses.
[245] It should also be noted that the quotation cited by Pinto, J. with approval in Grillo and attributed to the Court of Appeal:
“As stated by the Court of Appeal in DK Manufacturing Group Ltd. v. MDF Mechanical Limited, 2019 ONSC 6853”
the actual citation and quote is from this decision of Associate Justice Robinson, which was not appealed to the Court of Appeal as far as I can find, and high praise for Associate Justice Robinson’s reasoning.
Evidence of Prejudice by the Defendants:
[246] In each of the Lewis Affidavit on behalf of Brampton Chrysler, and the Shaw Affidavit on behalf of FCA, the affiants provide the following evidence with respect to prejudice:
[247] Lewis Affidavit:
“8. I understand that the plaintiffs are now bringing a motion to set aside the Dismissal Order which, if successful, will revive the action and allow the plaintiffs to proceed to trial. 103 opposes the plaintiffs' motion to set aside the Dismissal Order, due to the prejudice that would be suffered by 103 if the action is revived and 103 is required to defend the action at trial more than ten years after the Incident.
If the Dismissal Order is set aside, 103 will be required to defend the plaintiffs' action at trial. Based on the advice of counsel, I believe that a full and complete defence to a product liability action such as this typically requires expert evidence on the alleged failure of the vehicle and/or the component parts alleged to have been defective. In this case, 103 would likely need to present expert evidence addressing the plaintiffs' allegation that a defect in the subject prop rods caused their alleged failure during the Incident.
I believe that 103's ability to obtain an accurate failure analysis of the prop rods for presentation at trial will be hindered by the passage of time and likely material degradation of the prop rods. My belief in this regard is informed by my review of the investigative report prepared by Dr. Eric R. Weishaupt of Engineering Systems Inc. ("ESI"), dated July 14, 2021, which is attached as Exhibit "A" to Dr. Weishaupt's affidavit sworn July 16, 2021.
Dr. Weishaupt's curriculum vitae, attached to his report as Appendix "A", indicates that he holds a Ph.D in Engineering Science and Mechanics from the University of Alabama, is licensed as a professional engineer in the State of Michigan, and that he has over ten years of experience conducting complex failure investigations involving the study of materials in relation to structure and properties including in the automotive industry. Based on this, I believe that Dr. Weishaupt is qualified as an expert in engineering failure analysis.
Dr. Weishaupt's report identifies the materials used in the construction of the prop rods through an examination of an exemplar part and concludes that the expected degradation of the materials in the subject prop rods in the time since the Incident would prevent an expert from conducting an accurate failure analysis of the subject prop rods in relation to the Incident.
I therefore believe, based on my review of Dr. Weishaupt's report, that 103's ability to obtain the expert evidence necessary to mount a full and complete defence to the action will be prejudiced if the Dismissal Order is set aside.”
[248] Shaw Affidavit:
“12. I understand that the plaintiffs are now bringing a motion to set aside the Dismissal Order which, if successful, will revive the action and allow the plaintiffs to proceed to trial. FCA Canada opposes the plaintiffs' motion to set aside the Dismissal Order, due to the prejudice that would be suffered by FCA Canada if the action is revived and FCA Canada is required to defend the action at trial more than ten years after the Incident.
If the Dismissal Order is set aside, FCA Canada will be required to defend the plaintiffs' action at trial. Based on my experience and the advice of counsel, I believe that a full and complete defence to a product liability action such as this typically requires expert evidence on the alleged failure of the vehicle and/or the component parts alleged to have been defective. In this case, FCA Canada would likely need to present expert evidence addressing the plaintiffs' allegation that a defect in the subject prop rods caused their alleged failure during the Incident.
Notwithstanding the Dismissal Order, FCA Canada has continued to store the prop rods in the same manner out of an abundance of caution. Despite this, I believe that FCA Canada will be prejudiced in its ability to defend this action due to the passage of time and likely material degradation of the prop rods, which will hinder FCA Canada's ability to obtain an accurate failure analysis of the prop rods for presentation at trial.
My belief in this regard is informed by my review of the investigative report prepared by Dr. Eric R. Weishaupt of Engineering Systems Inc. ("ESi"), dated July 14, 2021, which is attached as Exhibit "A" to Dr. Weishaupt's affidavit sworn July 16, 2021.
Dr. Weishaupt's curriculum vitae, attached to his report as Appendix "A", indicates that he holds a Ph.D in Engineering Science and Mechanics from the University of Alabama, is licensed as a professional engineer in the State of Michigan, and that he has over ten years of experience conducting complex failure investigations involving the study of materials in relation to structure and properties including in the automotive industry. Based on this, I believe that Dr. Weishaupt is qualified as an expert in engineering failure analysis.
I confirm that the assumptions relied upon in Dr. Weishaupt's report are true. In particular, I confirm that:
(a) The subject prop rods were harvested from the Vehicle following the Incident and have been stored in a climate-controlled environment at FCA Canada's offices in Windsor, Ontario since 2012;
(b) The subject prop rods have not been exposed to water or moisture ingress during their storage and have not been routinely exercised during the storage period; and
(c) The exemplar prop rods acquired by ESi from a 2012 Chrysler Town & Country, which were examined by ESi and discussed in Dr. Weishaupt's report, bear the same part number and are representative of the subject prop rods harvested from the Vehicle.
Dr. Weishaupt's report identifies the materials used in the construction of the prop rods through an examination of an exemplar part and concludes that the expected degradation of the materials in the subject prop rods in the time since the Incident would prevent an expert from conducting an accurate failure analysis of the subject prop rods in relation to the Incident.
I therefore believe, based on my review of Dr. Weishaupt's report and my professional experience at FCA Canada, that FCA Canada's ability to obtain the expert evidence necessary to mount a full and complete defence to the action will be prejudiced if the Dismissal Order is set aside.”
[249] Accordingly, in each case, in addition to presumed prejudice, each of Lewis and Shaw have provided evidence claiming actual prejudice to each of the Defendants. They were not cross-examined on these affidavits.
Position of the Plaintiffs:
[250] Outside the issue of the Prop-Rods and the expert evidence dispute that took up a great deal of the day of the hearing of this Motion, the Plaintiffs take the following position in their Factum on the issue of the general presumption of prejudice for issues other than the Prop-Rods:
Factum – (added Prop Rod argument to preserve context)
“50. The Defendant has not been prejudiced by the delay. The Plaintiffs have included and referenced a large volume of productions in the motion record that includes the accident benefits file, OHIP Summary pre-dating the subject incident by three years, along with medical records of the Plaintiff including but not limited to the Plaintiff's treating practitioners; family physician, physical therapist, hospital records, TMJ assessor, psychologist, and prescription summary. There are also income tax returns dating back to 2009.
Reference: Levy Affidavit - Plaintiffs' Motion Record at Tab 3, page 24, para 44
The parties have also been examined in October 2016 thus captured their evidence in terms of liability and damages.
While the Reid prejudice factor is for the Plaintiffs to demonstrate there is no prejudice, the Court of Appeal has placed some responsibility and obligation on Defendants when they too didn't take any certain action or step. This was observed in H.B. Fuller Co. v. Rogers (c.o.b. Rogers Law Office), 2015 ONCA 173, [2015] O.J. No. 1260 at paragraph 38 and 42, and also referencing Aguas v. Rivard Estate, 2011 ONCA 494, at paragraphs 18-19, and 21 as follows:
H.B. Fuller Co. v. Rogers
38 A presumption of prejudice can arise from the passage of time, such as the expiry of a limitation period or, as here, the death of a witness. However, the plaintiff will not necessarily fail to rebut this presumption simply because he or she does not adduce affirmative evidence: Rather, in evaluating the strength of the presumption of prejudice the master or motion judge, must consider all of the circumstances, including the defendant's conduct in the litigation. [MDM, at para. 32. citations omitted.]
42 Although it is incumbent upon a plaintiff to conduct its action in a proactive manner, it is unfair in the circumstances of this case to ignore CPI's passivity. As Rosenberg J.A. stated for a majority of this court in Aguas, at para. 19, while "the appellant, as plaintiff, bore responsibility for moving the action along ... respondents' counsel's lack of display of any sense of urgency undercuts the claim of actual prejudice." In the circumstances, the motion judge's reliance on Faris without considering the significant factual differences between that case and this, and his failure to consider the actions of the respondent, led him to err in his assessment of prejudice.
Aguas v. Rivard Estate
[19] I appreciate that the appellant, as plaintiff, bore responsibility for moving the action along, but respondents' counsel's lack of display of any sense of urgency undercuts the claim of actual prejudice. Counsel for the respondents must have realized that counsel for the appellant had made a mistake and was not aware that the action had been dismissed by the registrar; otherwise, why did appellant's counsel not query respondents' counsel's attendance at the discoveries and why did no one raise the issue of the need for a motion to set aside the administrative dismissal?
[20] Finally, in my view, the motion judge erred in holding that the respondents were entitled to rely on the finality of the registrar's order. The respondents did not proceed as if they were acting on the principle of finality; they continued to participate in the litigation, most obviously by attending the discoveries in the second accident.
It is important to note that the subject part is in the possession of the Defendants and at no time have they raised any concern or urgency to inspect and analyse the part throughout the proceeding.
The Defendants could have advised they would be analysing the part on a unilateral date and invited a representative of the Plaintiffs to also attend however they have not. Similar to the above reasoning and observations by the Court, counsel's lack of display of any sense of urgency undercuts the claim of actual prejudice. Reference: Cornell v. Tuck, 2018 ONSC 7085, at paras 77(c)
If this Court was to view or presume some prejudice arising from the subject part the Plaintiffs ask that the above line of authority be applied, along with the overall context and conduct of the parties, in arriving at a fair decision to reinstate the action. Justice Spies of the Divisional Court cited this approach in Iacolucci v. TD Waterhouse Canada Inc. 2018 ONSC 1027 on a motion to set aide an administrative dismissal order when reviewing the jurisprudence, particularly at paragraphs 41 to 43:
41 The contextual approach was reaffirmed by the Ontario Court of Appeal in Finlay v. Van Paassen. In that case, a balanced consideration of the relevant factors excused a more than two-year delay after a Registrar's dismissal order as it was in the interests of justice to do so. In that case however, the reinstatement motion was preceded by the "reasonably prompt" progression of the action up to that point, which is not this case.
42 In Kerr v.. CIBC World Markets, which involved a related Rule 48 issue of restoring an action to the trial list, Justice Newbould of this Court overturned an order refusing to restore the action, even though there had been findings of intentional delay and presumed prejudice. Justice Newbould held that the Court must consider above all, whether in context of the particular case, it would be fair to dismiss the action.
43 While the Reid factors and common contextual factors are relevant, prejudice has been identified in many cases, as the "key consideration." If a defendant can still have a fair trial, the manifestly just order is to determine an action on its merits; see Chiarelli v. Wiens, Micallef and Finlay.
Lastly, there is no evidence of prejudice arising from the delay between the Registrar's Dismissal Order on May 15, 2019 to service of the notice of motion on February 22, 2021. Dr. Weishaupt's opinion does not consider this timeframe.
The Plaintiffs submit that leave should be granted. The Defendant has suffered no non- compensable prejudice and a fair trial can still be held, especially considering chemical attack is only but one of many possible causes of the failed gas strut.”
[251] Paragraphs 40 to 44 of the Levy Affidavit read:
“40. I do verily believe that there is no prejudice to any parties if the motion is granted. The defendants are in possession and have preserved the subject 'prop rods.' The Plaintiffs were present when the incident occurred and have a memory of same. They have also been examined for discovery in October 2016.
Attached hereto and marked as Exhibit M is a sworn copy of the Affidavit of Documents of the Defendant, FCA Canada Inc. (Formerly Chrysler Canada Inc.).
Attached hereto and marked as Exhibit N is a sworn copy of the Affidavit of Documents of the Defendant, 1035312 Ontario Limited O/A Brampton Chrysler Dodge Jeep.
Attached hereto and marked as Exhibit O is a draft copy of the Affidavit of Documents of the Plaintiffs.
All schedule a productions are available including updated records. This includes: accident benefits file, OHIP Summary pre-dating the subject incident by three years, along with medical records of the Plaintiff including but not limited to the Plaintiff's treating practitioners; family physician, physical therapist, hospital records, TMJ assessor, psychologist, and prescription summary. There is also income tax returns dating back to 2009.”
Analysis
[252] As detailed above, having come to the conclusion that the Action was “placed in abeyance”, and “slumbering” in Grillo terms, the statement of the Court of Appeal in Jadid is applicable to the effects of unexplained delay in this Action to the ability of these defendants to have a fair hearing of this Action:
“[85] The occurrence report filed by the driver the day after the incident is the only evidence the defendant has and will likely ever have to counter whatever the plaintiff's version of events when she alleges negligence of the defendant. That report is terse - it is highly doubtful that it will be able reliably to be supplemented with revived actual memory this many years after the fact. The ability of this or any defendant similarly situate to defend a claim this old and of this nature on the issue of liability has certainly been compromised. Once sharp and persuasive evidence may lose a considerable amount of its punch when reduced to an antiseptic reading of an occurrence report ten or more years after the fact without the ability to contribute any meaningful additional details. Such prejudice is progressive and almost impossible to quantify. I conclude from the totality of the evidence before me that the defendant's right to a fair hearing has been impaired by the passage of time through the inaction of the plaintiff.”
[253] The facts in Jadid, summarized at Schedule A, was that the Action was commenced in 2007, but the motion for an Order varying the deadlines in the Order that had revived the Action was dismissed by the Motion Judge in February 2016, and affirmed by the Court of Appeal in September 2016. This is a similar period of cumulative delay to this Action where it is 8 years and 3 months from the issuance of the Statement of Claim to these reasons. In Jadid, like in this case, the Motion Judge heard the motion almost 10 years from the date of the injury.
[254] Levy summarizes in paragraphs 49-59 of the Levy Affidavit twelve references to medical diagnoses in medical records and expert reports of Jacqueline’s condition, most indicating that Jacqueline’s condition is degenerative, some quotes like that of Dr. Fern from the Orthopaedic assessment he conducted on March 1, 2016 indicating:
“... The imaging studies have documented likely some pre-existing degenerative changes. However, any degenerative changes were asymptomatic prior to her accident and, as such, I would consider them to have made the area more vulnerable to injury, but the degenerative changes themselves were not of a severity that I would have anticipated would result in the problems that she currently experiences. The degenerative changes that were likely pre-existing would not be the cause of her current difficulties.”
[255] But that quote points out an important issue when the issue of