Court File and Parties
COURT FILE NOS.: CV-12-453495 and CV-17-582537
MOTIONS HEARD: 20220629
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Toronto Standard Condominium Corporation No. 2073 Plaintiff
-AND-
The Printing Factory Lofts Inc., et al. Defendants
AND RE: Toronto Standard Condominium Corporation No. 2073 Plaintiff
-AND-
Miller Thomson LLP Defendants
BEFORE: Associate Justice Abrams
COUNSEL: G. Brandys, for TSCC No. 2073 in CV-12-453495 R. Oliver, for City of Toronto in CV-12-453495 J. Watts, for all of the architects in CV-12-453495 N. Cartel, for TSCC No. 2073 in CV-17-582537 J. Margie, for Miller Thomson in CV-17-582537 S. Stauffer, for Rainbow Group Ltd. and Rainbow Waterproofing Ltd. in CV-12-453495 (observer) T. Kuper, for State Window Corporation in CV-12-453495/A T. Letourneau, for Novatrend Engineering Group Ltd. in CV-12-453495/A (observer) C. Marino, for The Printing Factory and Beaverbrook Homes in CV-12-453495 (observer) C. McCarthy, for 646756 NB Inc. in CV-12-453495 (observer)
REASONS FOR DECISION
[I] Motion and Cross-Motions
Court File No.: CV-12-453495
By the court:
[1] Toronto Standard Condominium Corporation No. 2073 (variously “TSCC No. 2073” and “the plaintiff”) seeks an Order extending the set down deadline to December 31, 2023--this, after the set down deadline has already been extended three times since the action was commenced. The motion is opposed by the City of Toronto (the “City”) and by the architect defendants who ask that the plaintiff show cause why this action ought not to be dismissed and who ask that this action be dismissed.
[2] The plaintiff is a condominium corporation created in May of 2010. It controls, manages, and oversees a condominium tower and townhomes constructed at 201 Carlaw Avenue, in Toronto (being a development involving the conversion of a printing factory). The plaintiff alleges construction deficiencies and problems resulting, largely, from waterproofing issues. The plaintiff says that it has incurred more than $2.5 million in order to remedy those deficiencies.
[3] In the nascent states of this action (the “construction action”), the plaintiff was represented by lawyers from the law firm of Miller Thomson LLP. This action, seeking damages related to the alleged construction deficiencies, was commenced in the Spring of 2012. Named as defendants were the builders/developers, the architects and the City of Toronto. In 2013, the damages claim was increased approximately ten-fold, and in 2014 the name of one of the developers was changed in the claim. Thereafter, amended statements of defence were delivered and, in 2015, affidavits of documents were exchanged. In late 2015, the plaintiff delivered an expert’s report, detailing what the expert identified as the scope and causes of the deficiencies.
[4] In December of 2015, the plaintiff sought to further amend the amended statement of claim to add persons involved in the design and construction of the waterproofing elements for the construction project, including the structural engineer, and sought to extend the set down deadline. The motion was brought pursuant to R. 26 and was heard in May of 2016, on an opposed basis. Master Short heard the motion and released his Reasons some six months later. The motion was granted in part, with Master Short permitting the addition of some parties defendant (with a limitations defence then pled by them) and extending the set down deadline to November 30, 2017.[^1]
[5] Leave to add the structural engineer as a party defendant was not permitted by Master Short, with the claims against it being, in his view, statute barred. An appeal was taken from Master Short’s decision to the Divisional Court. The appeal was dismissed in May of 2017. The statement of claim was then further amended to add as defendants those whom Master Short permitted be added.
[6] In July of 2017, the lawyers with primary carriage of the plaintiff’s claims left the Miller Thomson firm. A new lawyer, Michael Shell (then also of Miller Thomson), stepped into the breach.
[7] In October of 2017, the plaintiff commenced an action against the former Miller Thomson lawyers who had, to that point in time, acted on its behalf--alleging negligence and delay in the manner in which the construction deficiency claims had been addressed. The action (the “solicitor’s negligence action”) was commenced by a lawyer different than Mr. Shell.
[8] Given the steps that had been taken and remained to be taken, it was evident to the plaintiff that the November 30, 2017 set down deadline for the construction action could not be met. On an unopposed basis, the plaintiff obtained an Order from the court extending the set down deadline to December 31, 2019.
[9] In December of 2017, Mr. Shell identified issues in respect of the construction action that, in his view, needed to be addressed on an immediate basis. He noted that design and certain construction and inspection deficiencies had not been, but needed to be, pled and, importantly, that the plaintiff had sought and been granted (by Master Short) leave to add a bankrupt as a party defendant. In February 2018, the plaintiff retained Mr. Shell (who had since left Miller Thomson and is current counsel of record in the construction action) to pursue their claims and address these issues. In this regard, motions (a) to further amend the statement of claim and (b) for leave to proceed under the Bankruptcy and Insolvency Act were brought. Consent for the amendment motion was sought but (generally speaking) was not forthcoming. The motion was entertained as an unopposed motion in March of 2019.
[10] In respect of the bankrupt defendant, the motion was heard in May of 2019 (after discussions with the Trustee) and the stay of proceedings against that defendant was lifted; but, because the motion was once adjourned and, later, the court file was said to have been lost, there was a further delay of some six months. Again, given the steps that had been taken and remained to be taken, the action could not have been ready to be set down for trial by the December 31, 2019 deadline earlier ordered by the court. On an unopposed basis, the plaintiff obtained a third Order extending the set down deadline—this to August 31, 2021. The Order was sought before the December 31, 2019 deadline passed.
[11] Since this third Order was made, (amended) pleadings have been delivered and documentary disclosure has been completed, with outstanding affidavits of documents and supplementary affidavits of documents having been exchanged (as was made necessary by virtue of the further amendment of the plaintiff’s statement of claim).
[12] With there being three proceedings relating to the deficiencies raised by the plaintiff--this action, a third-party action and the solicitor’s negligence action (proceedings with some common legal and factual issues)--the plaintiff took the view that it would be in the parties’ respective interests to have the actions mediated together, case managed and/or tried together or consecutively. Its lawyers engaged in efforts to persuade all parties that this was so (admittedly, with the plaintiff suggesting a history of more detailed and protracted discussions than do the other parties).
[13] New counsel (current counsel of record) was retained by the plaintiff in the solicitor’s negligence action in January of 2020 (counsel different than its counsel in the construction action). New counsel hoped to be able to have all parties consent to the ‘bundling’ of the actions, without need of a motion. While discussions and negotiation efforts were ongoing, Miller Thomson, also, changed its lawyers of record in the solicitor’s negligence action--this in October of 2020.
[14] The plaintiff says that it was not until correspondence was sent by its lawyer in the solicitor’s negligence action as to its wish to have the related actions tried together or one after the other (and be subject to a joint timetable), this in May of 2021, that it became known that no ‘bundling’ Order could be settled without a motion being argued. Then too, and in any event, only then did it become clear to the plaintiff (it says) that, at least some parties, opposed a further extension of the set down deadline and wished to have the action dismissed for delay.
[15] On August 11, 2021, before the December 31, 2021 set down deadline and without opposition, I made an Order that the related actions not be administratively dismissed, pending the hearing of the plaintiff’s two motions and related cross-motions (relating to the extension of the set down deadline and the bundling of the actions). Despite a few false starts on the part of the plaintiff (in its scheduling efforts) and notwithstanding that earlier dates were offered, the motions were scheduled for June 29, 2022 (understandably, given the number of counsel, the constraints of counsel’s respective schedules, and the court’s own availability to hear a long motion--with all of the motions, heard together, constituting a long motion).
[16] The plaintiff posits that, until it knew whether the construction action and the solicitor’s negligence action were to proceed in accordance with joint timelines and be litigated and tried together, steps to advance this action further could not be taken (and, as such, were not taken). Any fresh steps were and are dependent on the court’s determination of these issues, it says.
[17] The plaintiff asks that the court permit it until December 31, 2023 to set the action down for trial. It submits that I ought to consider its motion and the cross-motions in context, applying the Reid factors ([2001] O.J. No. 2365 (S.C.J.)): explanation of the litigation delay; inadvertence in missing the set down deadline; promptness of the motion; and prejudice to the defendants. Further, the plaintiff submits, I ought to strike a balance between the competing needs of efficiency and flexibility and the court’s preference for resolving litigation on its merits, having regard to, inter alia, R. 1.04(1) (see: Quigley v. Schertzer, 2020 ONSC 1848, at paras. 13-16).
The Reid Factors
[18] Explanation: The explanation that is provided need only be adequate or reasonable save that, the longer the delay, the more robust the explanation that is required (see: Brook Restoration Ltd. v. Metropolitan Toronto Condominium Corp. No. 677, 2020 ONSC 3100, at para. 29). The plaintiff argues that its explanation is adequate and/or reasonable given the number of motions and amendments (some of which had their timing dictated by the very lawyers whom the plaintiff now is suing in the solicitor’s negligence action), given the delays inherent within the court (as relate to changes in motions processes and to scheduling) and in counsel’s practices (and their clients’ lives) as a result of the Pandemic[^2], given the delays occasioned by the loss of the court file and the unsuccessful appeal taken from the decision of Master Short, given the delay occasioned by what is described as Mr. Shell’s “protracted dealings with the [bankruptcy] [T]rustee”, as referenced above, and given the failed efforts made by the plaintiff, particularly within the last year or so, to encourage those opposed to the solicitor’s negligence action being litigated together with the main and third party actions to reconsider their position. Further, the plaintiff says that, had consents been forthcoming for the March 2019 motion (discussed above), as sought--a motion that ultimately proceeded on an unopposed basis--some period of delay would have been attenuated.
[19] Relying on H. B. Fuller Company et al. v. Rogers (Rogers Law Office), 2015 ONCA 173, at para. 27, the plaintiff points out that it has brought suit against those lawyers who acted for it in the first several years of the construction litigation, lawyers whom it says caused or contributed to at least some of the delay. It urges me to keep in mind what the Court of Appeal said, namely that “[t]he court’s preference for deciding matters on their merits is all the more pronounced where delay results from an error committed by counsel”.
[20] Inadvertence: In this case, no deadlines for setting the action down for trial have been missed. Each time, the plaintiff moved before a deadline elapsed. And, while the plaintiff acknowledges that it bears primary responsibility for prosecuting its claims, it would have me recognize that the legal and procedural complexity of the claims, the number of parties, the number of interlocutory steps taken and the plaintiff’s wish to see the construction and solicitor’s negligence actions bundled together forced the plaintiff’s hand in terms of process, with any delays being required or, to the extent that they could have been but were not minimized, inadvertent.
[21] Promptness: At each juncture, a timely motion was brought; and, though this motion was not heard until June of 2022, it was first brought, on an urgent basis, with an August 11, 2021 return date. The plaintiff’s motion was brought prior to the deadline fixed for setting this action down for trial.
[22] Prejudice: The mere passage of time cannot, itself, be determinative of non-compensable prejudice, with the prejudice to be assessed being prejudice occasioned by the delay and, not simply, the passage of time, the plaintiff submits (see: Brook Restoration v. MTCC No. 677, 2020 ONSC 3100, at para. 39). While it is true that the defendants are not required to adduce evidence of actual prejudice, the plaintiff acknowledges, it is worthy to note that the defendants had not before indicated any serious concern about the delay and its implications and had consented to or been unopposed to earlier extensions of the set down deadline--with the last set down deadline being one that would have had the action set down for trial less than one year ago.
[23] The plaintiff says that it was lulled into a false sense of security, with no real objection (or, indeed, no objection at all) having been taken before now (by those who oppose this motion) to extensions of the set down deadline and to what the City and architects now characterize as the glacial or halting progression of the plaintiff’s claims. And while the plaintiff agrees that more could, even might, have been done before this motion to advance its claims, it says, relying on Brook Restoration, supra (at para. 43), that “[s]ome progress has been made” with the “case call[ing] for flexibility [and] an indulgence…not the draconian remedy of dismissing [its] claim[s]” (at para. 43).
Cross-Motions
[24] I do accept, as the architects and City of Toronto have argued, that “there comes a point in time where a party to litigation who fails to comply with rules designed to promote timely and efficient justice loses the right to have its dispute decided on the merits” (American Environmental Container Corp. v. Kennedy, 2020 ONSC 1662, at para. 56). But is that time now? With none of the steps save for service of a fresh affidavit of documents having been taken by the plaintiff in accordance with the last timetabling Order made, the City and architects say that the time is now; and this action should be dismissed.
[25] The plaintiff, they submit, has not shown cause as to why the action ought not to be dismissed for delay. The plaintiff has failed to proffer an acceptable explanation for the delay and evidence that the defendants will not suffer non-compensable prejudice resulting from the delay.[^3] And while the plaintiff has pointed to the defendants’ slow pace, the architects say that “it is not for the plaintiff to argue that the defendants were also not in a rush to move the matter forward or were equally responsible for the delay. It was not their obligation to move the matter forward” (Edward Sobie, Executor v. Sobie, 2018 ONSC 4205, at para. 52). Further, both the City and the architects say, no specific evidence (or credible evidence) has been adduced as to why the construction action was delayed by procedural considerations relative to the solicitor’s negligence action, as the plaintiff posits it was.
[26] The problem, here, the City and architects submit, is that no steps were taken by the plaintiff to move the action beyond the documentary discovery stage, even if one looks at only the last timetabling Order made. Examinations for discovery and mediation were to have been completed by April 30, 2021 (even relying on Mr. Brandys’ February 12, 2020 email to counsel) and neither was scheduled, let alone completed. The delay, they say, is unreasonable and not explained in a satisfactory fashion. And if Miller Thomson was somehow at fault for the delay, as the plaintiff suggests it was, Miller Thomson was already off the record some five years ago. And the City, at least, had consented to the relief obtained in the March 2019 motion.
[27] The plaintiff has failed to explain in a detailed and substantiated manner “all periods of material delay” (Walderman v. CMC Markets Canada Inc., 2017 ONSC 6802, at para. 26) and why it did not accept the lifelines already provided it, the City and architects submit. Further, and in any event, despite what the plaintiff says were efforts made by its former counsel to negotiate the bundling of the two actions, the City advises having learned of the solicitor’s negligence action only in May of 2021 (see: affidavit of Kelly Walsh, sworn November 25/21, at para. 27).
[28] The City and architects also point out that, with so much time having elapsed since this action was commenced, and with the plaintiff acknowledging that the proceedings involve “a large number of fact witnesses”, there is “potential impairment of [their] ability to present [their] case”. In the case of the City, by way of example, the allegations involve inspections of construction that started some sixteen years ago. Quoting from 1196158 Ontario Inc. v. 6274013 Canada Ltd., 2012 ONCA 544, at para. 43, the City points out that, as time goes on, it becomes “more and more difficult to defend a claim” relating to events that transpired years earlier and “that would be even more remote by the time a trial could be held. The more time that passes, the more difficult it is to defend the case. Memories fade and even if documents are not lost, their significance becomes shrouded.” And even if the case can be said to document-based/document-driven, the City suggests that the documents will require explanation from persons who may not be found or may have flawed recollections.
Analysis
[29] Although the court is to be guided by the two-part test on a status hearing, the decision as to whether to dismiss is discretionary--with a determination of whether it would be unfair for the action to be dismissed requiring consideration of the circumstances and a balancing of the parties’ respective interests (see: RDA Inc. v. Orrico, 2022 ONSC 1023, at para. 10).[^4]
[30] It is true that there is a presumption of prejudice with the passage of time; but, the presumption here has been rebutted having regard to the exchange of affidavits of documents and Schedule “A” documents and the plaintiff’s service of an expert’s report, with this being “the kind of action that will most likely turn on expert evidence and an examination and interpretation of documents, all of which are available” (Hart Stores Inc. v. 1808059 Ontario Limited, 2014 ONSC 7010, at para. 12). And while there is no question but that it was for the plaintiff to advance its claims, there is no evidence before me of any expression of concern on the part of those opposing the plaintiff’s motion as to the passage of time and its implications at any time before this motion was brought or of any follow-up or urging in respect of the scheduling of examinations for discovery and mediation. And while it may not be ordered by the court (more will be said on this anon), there is evidence before me of efforts made by the plaintiff to persuade Miller Thomson to participate in at least a joint mediation with the defendants herein. From the plaintiff’s perspective, whether it be right or wrong, this is said to have been a sine qua non.
[31] Memories do fade over time, it is true. But, with affidavits of documents having been exchanged and the plaintiff’s expert’s report having been served years ago (v. as of late), there is no reason that investigations couldn’t have been undertaken and that the recollection of events of the opposing defendants’ fact witnesses couldn’t have been memorialized long before now when they were still fresh. The fact that there was no opposition to this action continuing until the plaintiff brought its motion suggests that they likely were. And, though it is not required, there is no evidence of actual prejudice. If there were actual prejudice, I expect that the court would have been so advised.
[32] I accept, as the City of Toronto says, that to put this action on hold so that the solicitor’s negligence action might catch up or so that the two actions might proceed in tandem is an excuse of relatively recent origin; but, it is an excuse that preceded the plaintiff’s motion being brought. And the plaintiff’s motion was brought more than one year before it was heard (this through no fault of the plaintiff).
[33] In all, therefore, I am prepared to provide the plaintiff with one more chance to advance its claims in the construction action but I do so on a peremptory basis. Unless all parties otherwise agree, in which case a consent or unopposed motion may be brought before me, this action is to be set down for trial by December 31, 2023, failing which the Registrar shall dismiss this action for delay with costs. The time has come for the plaintiff to advance and prosecute its claims. It must act with alacrity and refrain from further delay. This is the last lifeline being offered it.
[II] Motion
Court File No.: CV-17-582537
By the court:
[1] As adverted to in the motion relating to the construction action, the plaintiff asks that this action and the construction action be subject to common discovery and mediation, be case managed together and be tried together or one after the other. This motion is brought almost five years after the solicitor’s negligence action was commenced and ten years after the construction action was commenced.
[2] The motion is opposed by Miller Thomson LLP. I agree with counsel for Miller Thomson when he says that the facts and circumstances giving rise to each claim are entirely different, and occurred at different times, with different parties, separated by years. The damages claimed in the construction action relate to amounts incurred by the plaintiff to correct alleged deficiencies in construction work and design. The damages sought in the solicitor’s negligence action relate to the plaintiff’s alleged lost ability to recover damages from “missing parties”, parties not named/against which (whom) the plaintiff’s claims are said to be statute-barred.
[3] Counsel for Miller Thomson submits, and I accept, that there will be no determination in the construction proceedings as to who else might be liable to the plaintiff but, rather, as to which of the named defendants (and third parties) is liable and what the apportionment of liability is among those parties (see: Martin v. Listowell Memorial Hospital, 2000 CanLII 16947 (ON CA), 2000 CarswellOnt 3839 (C.A.), at para. 48). I accept further, as counsel for the Miller Thomson posits, that what here makes the most sense is a R. 6.01(1) stay of the solicitor’s negligence action consistent with the plaintiff’s position when the solicitor’s negligence action was first commenced, with it having indicated that it was “willing to put [the lawsuit] on hold until the main action gets resolved to avoid either party incurring additional costs in respect of this litigation” (see: Second Strub affidavit, at para. 14).
[4] The plaintiff’s position, in this regard, first changed in March of 2018--with the plaintiff asking that Miller Thomson deliver a defence and participate in “likely settlement discussions”. It is noteworthy, though, that nothing was said, even then, about common discoveries or trial together. Miller Thomson did as asked and delivered a statement of defence.
[5] For years, no steps have been taken by the plaintiff to have Miller Thomson participate in a joint mediation or, even, in informal settlement discussions. And, indeed, the solicitor’s negligence action has not advanced beyond the pleadings stage, through no fault of Miller Thomson and/or its lawyers. Though it is true that there were some discussions as of late to have the two actions bundled together (and counsel disagree as to how extensive those discussions have been), no motion was brought until some four years after the solicitor’s negligence action was commenced.
[6] R. 6.01(1) of the Rules of Civil Procedure and s. 106 of the Courts of Justice Act permit me to order that the solicitor’s negligence action be stayed to avoid a multiplicity of proceedings and to promote the determination of the parties’ dispute in an expeditious and relatively inexpensive manner. Miller Thomson says that though it acknowledges that the two actions (this and the construction action) have a question of law or fact in common and that the relief claimed in the two actions arises out of the same transactions or occurrences (and, as such, that the criteria set out in R. 6.01(1)(a) and (b) have been met), it is more appropriate and more convenient that the two actions proceed separately, with the Miller Thomson action stayed (see: Coulls v. Pinto, 2007 CarswellOnt 7050, at para. 20[^5]).
[7] At paragraphs 40-42 of its factum, Miller Thomson sets out a list of questions of law and fact that are not in common in the two actions and aptly analyzes why that is so. I agree with Miller Thomson that “[t]he only issue to be determined in the [construction] [a]ction that is relevant to the [s]olicitor’s [n]egligence [a]ction is whether there are any damages suffered by TSCC 2073 that are not recovered…”. Further, and as Miller Thomson argues, it may be that there will be no damages in the solicitor’s negligence action, if the defendants in the construction action (and third parties) are found to be wholly liable for the alleged deficiencies.
[8] Looking to the list of possible factors the court may consider in deciding whether to order trial together or one after the other, Miller Thomson says that there is no “unity of interest” as relates to damages (see: 969625 Ontario Ltd. v. Goldstone Resources Inc., 2015 ONSC 4363, at para. 52), because the plaintiff seeks to recover in the solicitor’s negligence action only those damages that it cannot recover in the construction action. Miller Thomson suggests that, with “the developer sit[ting] at the top of the construction pyramid and [being], therefore, primarily responsible and liable for all issues arising from…the design, construction…or inspections of the work”, it expects that the plaintiff will recover fully (if awarded damages) from the named defendants in the construction action.
[9] And while it is true that there is a live limitations issue (as referenced above), it does not apply to all named defendants in the construction action. Though the plaintiff suggests that it and Miller Thomson are on the “same side of the fence” as relates to its response to this issue, Miller Thomson denies that this is so. Miller Thomson acknowledges an “alignment of interest” with the plaintiff, but posits that there is no “identity of interest”--fairly stating that it is as much in its interest that a finding be made that the relevant limitation periods elapsed before its retainer, as it is that no limitation period elapsed.
[10] Having considered the submissions made and evidence adduced, I am inclined to agree with Miller Thomson that the interrelatedness of this and the construction action is insufficient to have the court compel it to participate in days of discovery and trial while the issues relating to the alleged construction deficiencies are addressed.
[11] The action commenced against the law firm alleges negligence in having failed to advise the plaintiff to add certain parties to the construction action before the expiry of relevant limitation periods. The construction action alleges deficient work, design flaws and inspection failings. The nature of the work done and acts and omissions in respect thereto are at the heart of the construction proceedings, with the focus being on the named defendants (and third parties) and not on those who are not before the court, about whom findings therefore will not be made. Given that this is so, I accept that there will not be a significant overlap of evidence or of witnesses between the two actions, even if there will be some overlap.
[12] Further, the lawyers and parties in the construction and solicitor’s negligence actions (with one exception) are different. Yes, the plaintiff is the same in both actions, but Miller Thomson is not a party to the construction action and is the only defendant in the solicitor’s negligence action. Plaintiff’s counsel in the construction action is not the same lawyer as its lawyer in the solicitor’s negligence action.
[13] I accept, as both the plaintiff and Miller Thomson have argued, that the construction action is factually and legally complex. But, as Miller Thomson posits, it is much more complex than the solicitor’s negligence action. That complexity will mean substantially more lengthy and complicated examinations for discovery (with some 15 parties) [^6] v. a simple 2-party examination for discovery. Miller Thomson estimates the number of days of trial for the construction action as being some 100+ days v. 5-7 days for the solicitor’s negligence action. It concedes that, in the construction action, there will likely be a “large number of expert witnesses and other witnesses”.
[14] I agree with Miller Thomson when it says that, when the plaintiff suggests that it can ‘pick and choose’ what days of discovery and trial it attends to attenuate any prejudice, the plaintiff argues against itself and the position taken on its motion for trial together. And though the plaintiff takes the view that any prejudice to Miller Thomson is compensable, that is not the test. The question I must consider is whether there is “any advantage or prejudice [whether compensable or non-compensable] the parties are likely to experience if the actions are kept separate or if they are heard together”.
[15] While it is true that a “multiplicity of legal proceedings should be avoided as far as possible”, multiple proceedings might be required in some circumstances to secure the just, most expeditious and least expensive determination of disputes, in accordance with Rule 1.04 of the Rules of Civil Procedure. Whether there should be one proceeding or two ‘turns on the particular facts of any case and the various litigation-related considerations attaching to any case’” (Yorkville East Developments Inc. v. York Condominium Corporation No. 194, 2021 ONSC 5678, at para. 47). On the facts of this case and having regard to the litigation-related considerations addressed above, I accept that it is here more appropriate that there be two proceedings.
[16] Further, a temporary stay, as requested by Miller Thomson and permitted by R. 6.01(1)(e)(i), will substantially reduce the issues to be determined or could render the stayed proceeding substantially moot (Hollinger International Inc. v. Hollinger Inc., 2004 CarswellOnt 3442, at para. 5). In the words of the court in Kaye v. Fogler Rubinoff LLP, 2019 ONSC 1289 (at para. 20), on which Miller Thomson relies, “much of the air will likely have been let out of the balloon”. I agree that a stay makes sense on the facts of this case as preventing or substantially and materially reducing the probability of unnecessary and costly duplication of judicial and legal resources.[^7]
[17] I do note that, throughout (at least since 2018), the focus of the plaintiff has been on having Miller Thomson participate in global settlement discussions. There is no reason that Miller Thomson cannot agree to be part of any settlement negotiations, even if the solicitor’s negligence action is stayed. Stayed does not mean dismissed and it may be (or may not be) in Miller Thomson’s interests to engage in discussions with parties in all related proceedings to bring matters to an early close. Further, there is nothing to stop the plaintiff from seeking to lift the stay, if and when appropriate.
[II(i)] Case Management—Relevant to All Related Proceedings
[18] On the issue of case management, there is nothing in the motion materials that satisfies me that case management is here warranted in either action, at least as at now. Efforts to amend pleadings have gone largely unopposed. Timetables have been put in place on a consent or unopposed basis, save this once in the construction action. Documentary discovery has been undertaken. And though there was some resistance as at late (given the lead-up to these motions), there is nothing before me to suggest that efforts to schedule examinations for discovery or mediation will be thwarted. To date, court intervention has not been made necessary--save by virtue of the steps taken or not taken by the plaintiff. The plaintiff has now been given direction as to next steps and has been admonished as to the need to advance its claims in the construction action, without delay. For now, this should suffice.[^8]
[19] That said, if and as may be appropriate (particularly given the peremptory nature of the relief granted in the construction action), the need for case management may be reassessed (on motion), anon.
[III]
Failing agreement on the costs of all motions, I may be spoken to.
September 28, 2022 Original Signed by Associate Justice Abrams
[^1]: I note that, while the motion to amend was pending, this action was dismissed for delay, in error. The dismissal for delay was set aside. [^2]: For instance, the time that it took for Master Short to render his decision, the 5-month delay in having the Order of the Bankruptcy Court issued and entered, and the change in court practice in respect of opposed motions in writing, inter alia. [^3]: “The test is conjunctive, not disjunctive. Even if the plaintiff can provide a satisfactory explanation for the delay, the action will be dismissed if there would be prejudice to the defendant. And if the plaintiff is not able to provide a satisfactory explanation for the delay, it is still open to the judge to dismiss the action, even if there is no proof of actual prejudice to the defendant”: 1196158 Ontario Inc. v. 6274013 Canada Limited, 2012 ONCA 544, at para. 32. [^4]: “The possible dismissal of an action for delay involves a careful balancing between the interests of the parties and society in timely and efficient justice on one hand and in the resolution of disputes on their merits, on the other. (See: Kara v. Arnold, 2014 ONCA 871 at para. 9). …There is little to be gained in debating whether there is a bright line between the “contextual approach” applicable to motions to set aside registrar’s dismissal orders (per Scaini v. Prochnicki, 2007 ONCA 63 at para. 23) and the approach taken in Faris, supra to status hearings. In considering the reasonableness of any explanation for delay, the status hearing court will almost invariably engage in a weighing of all relevant factors [emphasis added] in order to reach a just result. (See: Kara, supra, at para. 13)”: Cedrom-Sni Inc. v. Meltwater Holding, 2017 ONSC 3387, at para. 6. [^5]: The court must now “consider whether the balance of convenience favours such an order, pursuant to the discretionary factors which include: (i) will the order sought create a saving in pre-trial procedures, and in particular, pre-trial conferences; (ii) will there be a real reduction in the number of trial days taken up by the trials being heard at the same time; (iii) what is the potential for a party to be seriously inconvenienced by being required to attend a trial in which that party may have only a marginal interest; (iv) will there be a real saving in experts’ time and witness fees; (v) is one of the actions at a more advanced stage than the other, and (vi) will the order result in a delay of the trial of one of the actions, and if so, does any prejudice which a party may suffer as a result of that delay outweigh the potential benefits a combined trial might otherwise have (Shah v. Bakken, 1996 CanLII 2522 (BC SC), [1996] B.C.J. No. 2836 (S.C.) at paras. 14-15 (“Shah”); adopted by O’Neill J. in McKee v. Thistlethwaite, [2003] O.J. No. 2850 (S.C.J.) (“McKee”) at para. 11)”. [^6]: And in respect of joint discoveries, now also sought by the plaintiff, there is a concern about privilege. Even as at now, the plaintiff has failed to waive privilege or to seek a court Order addressing it. Further, no framework has been proposed for the joint production of documents, as sought. [^7]: The plaintiff says that there was no cross-motion and ought to have been. That this form of relief was going to be sought was clear from the responding materials. Miller Thomson relied on the very rule on which the plaintiff relied. No adjournment of the motion was requested by the plaintiff; and, the issue of the stay was addressed by the plaintiff in its submissions. [^8]: Save that I may be asked to assist with the timetabling immediate next steps in the construction action.