Court File and Parties

COURT FILE NO.: CV-17-577292 MOTION HEARD: 20220809 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Xue Chao Zheng, Plaintiff AND: Kirankumar Bhailalbhai Patel, Defendant

BEFORE: Associate Justice Jolley

COUNSEL: Michelle Legault, counsel for the moving party defendant Dharshika Pathmanathan, counsel for the responding party plaintiff

HEARD: 9 August 2022

REASONS FOR DECISION

[1] The defendant brings this motion to dismiss this action as a result of the plaintiff’s failure to move to restore it to the trial list within 30 days after it was struck in October 2019 or, alternatively, for delay. In the alternative, the defendant seeks an order imposing a timetable and a deadline for the plaintiff to answer the remaining outstanding undertakings that he gave on his examination for discovery in 2018.

[2] The plaintiff brings a cross motion to restore the action to the trial list under rule 48.14. Although these motions were confirmed in October 2021, the plaintiff did not confirm the cross motion and then short served it on the defendant on 3 August 2022. The plaintiff did not file any responding materials on the defendant’s motion but relied solely on his own cross motion record. Nonetheless, given the overlapping issues, I have considered the materials in the plaintiff’s motion record both in support of his motion and in response to the defendant’s motion.

[3] Delay is an important factor on each motion. The defendant argues that the plaintiff has not offered an acceptable explanation for the delay to succeed on the cross motion under rule 48.14 (Faris v Eftimovski 2013 ONCA 360) and, with respect to the defendant’s rule 24 motion, that there has been intentional and contumelious delay on the part of the plaintiff (Langenecker v Sauve 2011 ONCA 803).

[4] I am satisfied that, despite stops and starts, the plaintiff’s explanation for the delay, while less than stellar, is acceptable (Carioca's Import & Export Inc v Canadian Pacific Railway Limited, 2015 ONCA 592 at paras 44-46). The delay has not been shown to be intentional and the plaintiff has demonstrated an intention to proceed to trial throughout. Nor do I find the delay to be contumelious.

[5] The plaintiff served his trial record in October 2018. He then served the defendant with his certification form in December 2018. The defendant advised the plaintiff that the plaintiff needed to complete his portion of the form before serving it. The plaintiff then did so and delivered his completed form to the defendant in February 2019. The defendant did not respond to the form and the plaintiff did not follow up, something for which both sides bear some responsibility.

[6] The defendant then appointed new counsel. When she was contacted on the eve of the deadline for filing the certification form in October 2019, she advised that she would not complete the form as the matter, in her view, was not ready for trial. The form indicated the plaintiff would call 8-10 witnesses, the identity of whom had not been disclosed, and 2-3 experts, none of whom had delivered reports. She suggested the plaintiff book an appointment with the trial scheduling court. That did not happen and the matter was then struck from the trial list in October 2019.

[7] The plaintiff then waited some four months to assign preparation of the motion to an articling student. In March 2020 he ultimately served his motion to restore the action to the trial list. Unfortunately the motion was served on prior, not current, defence counsel and it did not proceed in April as scheduled as a result. The plaintiff’s firm was closed due to COVID until the end of May 2020 and there was some further delay in getting the motion re-served and a new date secured. It also took some time for the plaintiff to deal with the court to try to answer the defendant’s question about why the action had been struck. A further part of the ensuing delay also falls at the plaintiff’s feet as he failed to provide an updated motion requisition form to obtain a new motion date once the defendant advised that he would be opposing the motion. In October 2021, the parties were able to secure today’s date for the motion and cross motion.

[8] Looking at the totality of the delay and the steps taken in this 2017 action, the parties completed examinations for discovery within the first year of the action and held a mediation within 15 months of the commencement of the claim. The plaintiff filed his trial record within 17 months of the action being commenced. He served a certification form within 18 months and a corrected form within 20 months. While there was delay in following up on the certification form and in requesting a trial scheduling court date and also delay and error in serving the motion to restore the action, the delay is not inordinate or inexcusable and the explanation is adequate.

[9] The defendant argues on his motion to dismiss for delay that there is prejudice in that the delay is inordinate and inexcusable and gives rise to a substantial risk that he may not be afforded a fair trial (Langenecker v Sauve, supra). On the plaintiff’s motion, the defendant argues that the plaintiff has not led evidence that there is no non-compensable prejudice (Faris v Eftimovski, supra). I am not satisfied that any prejudice has reached such a level that the action should not be restored or that it should be dismissed. The plaintiff has delivered his affidavit of documents and been examined. He has answered 14 of his 19 undertakings and is agreeable to a timetable to answer the five that remain. He is prepared to identify the names of the 8 - 10 witnesses he listed on his certification form some time ago. He provided names and contact details for three of those witnesses in 2018. While no timeframe was given on the undertaking to provide will say statements (the undertaking actually being to “use reasonable efforts to provide our best case forward with respect to any witnesses who might emerge”), he is amendable to a deadline. The defendant has received the plaintiff’s missing 2017 business income tax return and his 2017 personal return. He has not received CRA’s response to that filed return nor the underlying documents, which the defendant indicates he may now request. Any prejudice from the failure to answer these undertakings can be dealt with in a timetable order.

[10] On the allegation of prejudice, I note that as late as June 2021, the defendant was prepared not to oppose the plaintiff’s motion to restore the action to the trial list, presumably assessing that he was not so prejudiced that he could not receive a fair trial and that he had not suffered non-compensable prejudice. However, his position came with the condition that the plaintiff agree to limit his claim to within the policy limits. Given the plaintiff was just 33 years old at the time of the accident and had a past and future income loss claim (it is alleged that he was a pedestrian hit by a car driven by the defendant), the plaintiff was not prepared to limit the claim and the motion then had to be scheduled to proceed on an opposed basis.

[11] In balancing the interests of resolving disputes on their merits with the need for timely and efficient justice, based on the record before me, I favour having this matter proceed to be determined on its merits. For this reason, the plaintiff’s motion to restore the action to the trial list is granted. The defendant’s motion is dismissed with respect to the dismissal and granted with respect to the alternative relief for the imposition of a timetable and order on undertakings.

[12] I award the defendant his costs on a partial indemnity basis. The plaintiff was required as a result of his own actions to bring his motion and it was not unreasonable for the defendant to oppose the relief sought. Further, the plaintiff inexcusably short served the defendant, despite having almost ten months to deliver his materials. The plaintiff shall pay the defendant costs in the amount of $4,000 within 30 days of the release of this decision.

[13] Omnibus order to go for both motions in terms of the draft order attached, which I have amended and signed.

Associate Justice Jolley

Date: 10 August 2022