Court File and Parties

COURT FILE NO.: CV-13-00490639 DATE: 20230105 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Ashoak Grewal, Katarina Grewal, and Savannah Grewal, and Jordan Grewal by their Litigation Guardian Ashoak Grewal, Plaintiffs AND: Peel District School Board and John Doe, Defendants

BEFORE: Associate Justice L. La Horey

COUNSEL: Bonnea Channe and Clifton Yiu, Counsel for the Moving Party Defendant Peel District School Board Brandon Greenwood, Counsel for the Responding Party Plaintiffs

HEARD: August 24, 2022 by videoconference with additional submissions in writing December 2, 2022

REASONS FOR DECISION

[1] The defendant Peel District School Board (the “PDSB”) brings this motion for an order dismissing the plaintiffs’ action for delay.

[2] The delay from the commencement of the action on October 11, 2013, to the date that the motion was brought, is approximately eight years and the action is nowhere close to being ready for trial. The action has not progressed beyond the pleadings stage.

[3] For the reasons that follow, I grant the PDSB’s motion.

OVERVIEW

[4] This action was commenced by four plaintiffs. The plaintiffs Ashoak and Katarina Grewal are both teachers with the PDSB. The plaintiffs Savannah Grewal (“Savannah”) and Jordan Grewal (“Jordan”) are their children and, at the time the statement of claim was issued, were students at PDSB schools. Savannah has since graduated.

[5] The plaintiffs’ claim arises out of an anonymous email sent on October 12, 2011 to Mr. Grewal. The email was extremely offensive and malicious and threatened harm against the plaintiffs. Three other anonymous emails were sent prior to October 12, 2011, but it is only the last email that is the subject of the action.

[6] It is not disputed that on or about October 13, 2011, Peel Regional Police began a criminal investigation to identify the sender(s) of the emails. They were unable to identify the source of the emails. It is also not in dispute that the PDSB commenced an internal investigation thereafter that was completed in or about November 2012. The PDSB investigator was not able to conclude whether any specific individual(s) were responsible for the emails. The sender(s) of the emails have not been identified to date. The PDSB’s affiant on the motion deposes that the PDSB has no knowledge of the identity or identities of John Doe.

[7] The plaintiffs’ former lawyer commenced this action against the PDSB and John Doe on October 12, 2013. The plaintiffs plead that the unknown John Doe defendant sent the threatening email to Mr. Grewal from a computer at a PDSB school causing the plaintiffs to suffer psychological injury and trauma. They also plead that John Doe is an employee of the PDSB which is vicariously liable for his or her acts carried out during the course of employment. The plaintiffs also allege that the PDSB is liable in negligence, inter alia, for permitting a caustic and hostile environment to exist which led employees such as John Doe to believe that he or she could engage in anti-social and unlawful behaviour with impunity and failing to employ a reasonably safe protocol to prevent dangerous individuals from being hired and remaining gainfully employed at its schools, and failing to warn the plaintiffs of the danger posed by John Doe when such warning was appropriate.

[8] In support of its motion, the PDSB filed the affidavit of Thomas Tsung, who was the Corporate Controller of Corporate Support Services at the time of the emails and who remains in that position. He was not cross-examined.

[9] Significantly, none of the plaintiffs filed an affidavit on this motion, nor did the plaintiffs submit an affidavit from their former lawyer. Rather, the only affidavit filed on behalf of the plaintiffs is an affidavit from a lawyer with the plaintiffs’ current firm, Micah Ryu. On a number of occasions in his affidavit, including with respect to contentious issues, Mr. Ryu did not specify the source of his information and belief, contrary to Rule 39.01(4) of the Rules of Civil Procedure. On cross-examination, Mr. Ryu confirmed that he has never spoken to the plaintiffs.

[10] I set a timetable for this motion in my endorsement of January 18, 2022. Pursuant to that timetable, the responding materials were due on April 29, 2022. As noted above, the plaintiffs submitted Mr. Ryu’s affidavit. The PDSB, in its factum, asked the court to draw an adverse inference against the plaintiffs for failing to provide direct evidence. In their responding factum dated August 8, 2022, the plaintiffs attached a Schedule C which, at a brief glance, appeared to be copies of screen shots of text messages that had not been submitted into evidence. Anticipating a potential objection, I did not review Schedule C in detail in my preparation for the oral hearing. At the outset of the oral hearing on August 24, 2022, I heard the PDSB’s objection to Schedule C on the basis that the document was not evidence. Mr. Greenwood asked that I accept the document as evidence notwithstanding that there was no affidavit appending it as an exhibit or explaining it. For oral reasons delivered that day, I accepted the PDSB’s position and did not have regard to Schedule C or the paragraphs in the plaintiffs’ factum that referred to Schedule C (paragraphs 35 and 36). Plaintiffs’ counsel did not seek an adjournment of the motion after receiving my oral ruling.

WHETHER THE COURT HAS JURISDICTION TO DISMISS JORDAN’S CLAIM

[11] While this matter was on reserve, I noted that there was no evidence in the record as to the age of Savannah and Jordan who were represented by their litigation guardian when the action was commenced in 2013. I convened a case conference on September 26, 2022, to address the issue of the ages of Savannah and Jordan and specifically to enquire whether the Children’s Lawyer (“CL”) ought to have been served with the motion pursuant to Rule 24.02(1)(a) of the Rules of Civil Procedure. Rule 24.02(2) of the Rules of Civil Procedure provides that an action may be dismissed for delay under this Rule only if the CL confirms that he or she was served and takes no position on the dismissal, unless a judge orders otherwise. [1] In my endorsement on the case conference I indicated that I required evidence as to the ages of Savannah and Jordan and gave leave for the plaintiffs’ counsel to file an affidavit attesting to their ages. The PDSB indicated an intention to serve the CL in any event, and I granted leave to it to put the CL’s response in evidence before the court. I provided a timetable for further written submissions on this issue. I also provided leave for the parties to provide submissions on additional cases of which I was aware but which had not been cited by either counsel and with respect to the issue of whether conduct by the lawyer (as opposed to that of the plaintiffs) may be a reasonable excuse for the plaintiffs’ delay as this issue had not explicitly been addressed by the parties. [2]

[12] The plaintiffs submitted an affidavit providing evidence that Savannah was 20 years old at the time that the motion was brought. There is no dispute that notice to the CL was not required for Susannah.

[13] Jordan turned 18 on July 7, 2022. Pursuant to Rule 24.02(1)(a) of the Rules of Civil Procedure, the moving party must serve a notice of motion to dismiss an action for delay on the CL. Pursuant to Rule 37.07(6) of the Rules of Civil Procedure a notice of motion must be served at least seven days before the date of the motion. The PDSB submits that it was not required to serve the CL because seven days prior to the motion, Jordan was not a minor. Notwithstanding this position, the PDSB served the CL with the motion materials on October 12, 2022.

[14] On October 19, 2022, the CL wrote to the PDSB lawyers as follows:

Given that Savannah and Jordan are no longer minors, the Children’s Lawyer does not have any jurisdiction to participate in the motion and you need not have served us with your materials.

Based on the foregoing, no one from this office will be in attendance when this matter is before the Court.

[15] The PDSB submits that because the CL has now been served (prior to a decision on the motion) and advised that it will not be participating in the motion, to the extent that there was an obligation on the PDSB to serve the CL, the requirements of Rule 24.02 of the Rules of Civil Procedure have been met.

[16] The plaintiffs submit that Rule 24.02 of the Rules of Civil Procedure prevents the action on behalf of Jordan from being dismissed as he was a minor when the motion was first served on counsel for the plaintiffs. If the plaintiffs had raised this issue at the commencement of the hearing on August 24, 2022, and taken the position that the CL ought to have been served, I could have adjourned the hearing so that the CL could be served. Based on the letter from the CL they would have taken the position that they have no jurisdiction to participate in the motion as Jordan is no longer a minor.

[17] I therefore conclude that there is no impediment to my dismissing the action on behalf of Jordan on the basis that he was a minor when the motion record was first served.

PLAINTIFFS “REQUEST” TO SUBMIT FURTHER EVIDENCE

[18] In their supplementary written submissions dated November 18, 2022, the plaintiffs state:

The Plaintiffs have shown through their actions a clear intention to continue with this matter. The very act of switching law firms, providing Diamond and Diamond Lawyers LLP with damage documentation, providing settlement instructions, rejecting offers made by PDSB and instructing Diamond and Diamond Lawyers LLP to make efforts to proceed to examinations for discovery indicates a willingness to proceed with this matter.

If the above is not accepted, and the delay in this matter is found to lie with the Plaintiffs themselves (rather than their previous lawyer), then the Plaintiffs are in possession of additional evidence proving that they made several efforts to engage their previous lawyer and ask that their matter be advanced. If the outcome of this motion ultimately turns on whether or not the Plaintiffs made any efforts to have their previous lawyer advance this action, then we are seeking leave to swear one additional piece of evidence into this motion record and if the court pleases, to allow PDSB to cross-examine the affiant. The Plaintiffs should be afforded a further opportunity to introduce key evidence if need be, considering the severity of the consequences of a dismissal of this action.

[19] As noted above, I heard the PDSB’s preliminary objections to the Schedule C filed with the plaintiffs’ factum. I ruled that I would not have regard to Schedule C or the paragraphs in the factum referring to it. I do not know whether the information in Schedule C is the “key evidence” that is being referred in the plaintiffs’ supplementary written submissions. The plaintiffs did not ask for an adjournment to file evidence after receiving my ruling at the hearing. Approximately three months after the hearing, in their written submissions of November 18, 2022, the plaintiffs asked for an opportunity to submit further evidence “if the outcome of this motion depends on it.” The only reason that the parties were permitted to make further submissions is because of issues identified by me. I permitted additional evidence only to ensure that I was not being asked to make a decision dismissing a minor’s action without the CL being on notice.

[20] The plaintiffs have not filed a motion for leave to file fresh evidence. The issue is not formally before me. There is no affidavit filed that speaks to the issue of whether fresh evidence ought to be admitted and, in particular, whether the additional evidence could not have been obtained prior to the motion with the exercise of reasonable diligence. On a motion for leave to introduce fresh evidence after a motion had been argued but before a decision was released, Justice Pepall (as she then was) wrote: [3]

In my view, absent exceptional circumstances to avoid a miscarriage of justice, the due diligence requirement should be rigorously enforced. Otherwise, there is a real danger that proceedings become protracted and parties will seek to bolster their cases after the hearing. This is obviously unfair and produces uncertainty and increased expense. As Mr. Myers submitted for the plaintiff, the due diligence requirement is the bulwark to protect the court’s process from abuse. I also observe that, in this case, no exceptional circumstances are in existence.

[21] As noted, the plaintiffs have not filed a formal motion or any evidence as to why the court should receive further evidence. All that they have done is make a two paragraph submission in further written submissions without an evidentiary foundation and without any case law.

[22] The plaintiffs’ extraordinary request is too little, too late.

BACKROUND FACTS AND CHRONOLOGY

[23] The statement of claim was issued on October 11, 2013, by the plaintiffs’ former lawyer.

[24] On November 7, 2013, the PDSB served a notice of intent to defend and demand for particulars. The PDSB obtained from the plaintiffs’ former lawyer, a waiver of defence pending receipt of the particulars which its counsel confirmed in a letter dated November 21, 2013.

[25] Counsel for the PDSB followed up on the request for particulars by letters March 13, 2014, August 21, 2014, and November 24, 2014, all without response. When the PDSB had not received a response to its demand for particulars by January 2015, it canvassed dates with the plaintiffs’ former lawyer for a motion to strike out the statement of claim on the basis that the plaintiffs had not delivered particulars. The motion was ultimately booked for June 22, 2015. On that day, Justice Firestone (as he then was) made an order that the plaintiff was to amend their claim to plead: (a) particulars of what it is alleged the PDSB knew or ought to have known regarding its employees; (b) who those employees were, if known; and, (c) particulars of how the PDSB failed to keep its students safe. The claim was also to be amended to plead the actions of the PDSB giving rise to the punitive damages claim. The amended claim was to be delivered within 30 days.

[26] Counsel for the PDSB provided a draft order to the plaintiffs’ former lawyer the day after the motion. When no response was provided, the PDSB booked a motion to settle the order and to strike out the statement of claim. No one appeared on behalf the plaintiffs when the motion came before Justice Stewart on October 22, 2015. She settled Justice Firestone’s order, adjourned the motion to strike out the statement of claim to December 1, 2015 and ordered that the plaintiffs pay $1,500 in costs.

[27] On November 26, 2015, the plaintiffs’ former lawyer served a notice of motion returnable on February 8, 2016, seeking an order for leave to amend the statement of claim. Presumably an order was required as the time within which the plaintiffs were entitled to amend their claim pursuant to Justice Firestone’s order would have expired on or about July 23, 2015.

[28] The plaintiffs’ former lawyer did not appear at the return of the motion to strike out the statement of claim on December 1, 2015. Justice Glustein refused to strike out the statement of claim due to the pending motion by the plaintiffs and the absence of representation of the plaintiffs at the motion, but said that this would be the last chance for the plaintiffs to comply with Justice Firestone’s order. He adjourned the defendant’s motion to February 8, 2016, and ordered costs against the plaintiffs in the sum of $1,299.50.

[29] In early February 2016, the defendants received the plaintiffs’ proposed amended claim which struck out the relief for punitive damages and certain of the allegations of negligence against the PDSB. At the return of the motion on February 8, 2016, Justice Glustein adjourned the motion to himself to be heard on March 29, 2016. In his endorsement he said that despite his order of December 1, 2015, the plaintiffs’ former lawyer had only served the amended statement of claim the prior week and the defendants did not have enough time to review the pleading. He noted that no particulars were provided and that the costs orders had only recently been paid. He ordered that the plaintiffs pay the costs of the motion on a substantial indemnity basis in the sum of $1,389.90 within 30 days.

[30] Mr. Tsung deposes that although the PDSB was of the view that the plaintiffs’ proposed amended statement of claim did not entirely comply with Justice Firestone’s order of June 22, 2015, the PDSB was prepared to accept the amended statement of claim in an effort to move the action forward. On March 21, 2016, counsel for the PDSB advised the plaintiffs’ former lawyer that the PDSB would accept service of the amended statement of claim on behalf of the PDSB, provided that the plaintiffs would agree to the PDSB filing a statement of defence. The plaintiffs agreed and the pending motions were withdrawn on consent. By letter dated March 23, 2016, the PDSB indicated that they awaited formal service of the amended pleading and noted again that they had instructions to accept service.

[31] Nothing further happened in the litigation until the plaintiffs’ current lawyer served a notice of change of lawyers on behalf of the plaintiffs on July 30, 2019, more than three years after the PDSB had agreed to accept service of the amended statement of claim in the draft form provided to them in February 2016. The plaintiffs had not arranged for the amended statement of claim to be issued and served in the intervening time.

[32] Mr. Ryu deposed that his office was retained to represent the plaintiffs on April 30, 2019, but the former lawyer was not responsive to their attempts to obtain his file. Accordingly, they obtained the relevant documents themselves. The plaintiffs’ current lawyer served a notice of change of lawyer on July 30, 2019.

[33] On March 16, 2020, the plaintiffs’ current counsel sent liability and damages documents to the PDSB counsel and asked to arrange a telephone call to discuss the file. Mr. Ryu deposed that from April to June 2020, his office was engaged in settlement discussions with the PDSB’s counsel.

[34] On November 16, 2020, Mr. Greenwood’s office was advised that the file was changing hands within the law firm retained by the PDSB and the file was transferred again when Ms. Channe took carriage of the file in March 2021. Further settlement efforts took place that were not fruitful.

[35] On July 14, 2021, Mr. Greenwood sent an email to Ms. Channe rejecting an offer to settle made on May 7, 2021 and forwarded an unissued amended statement of claim to counsel for the PDSB that he said the PDSB had “consented to accept service for” and suggested that discovery dates be arranged. The amended statement of claim was in the same form as that sent by the former lawyer in February 2016 except for the substitution of the names and details of the plaintiffs’ new lawyers.

[36] In July 2021, the lawyers for the plaintiffs attempted to schedule discoveries. On July 28, 2021, Ms. Channe advised Mr. Greenwood by letter that the PDSB would be bringing a motion to dismiss the claim for delay.

[37] The PDSB served its notice of motion for an order dismissing this action for delay on September 9, 2021.

THE LEGAL FRAMEWORK

[38] The PDSB relies on Rule 24.01 and Rule 48.14 of the Rules of Civil Procedure for an order dismissing the action for delay. Rule 24.01(1) of the Rules of Civil Procedure provides that the court may dismiss an action for delay where, inter alia, the plaintiff has failed to serve a statement of claim on the defendants within the prescribed time. Because the plaintiffs were required to amend their statement of claim pursuant to the order of Justice Firestone made June 22, 2015, and then serve it, Rule 24.01(1) of the Rules of Civil Procedure is arguably applicable, even though the plaintiffs had already served a statement of claim. [4]

[39] In Langenecker v Sauvé, 2011 ONCA 803, Justice Borins set out the test for dismissal for delay under Rule 24.01 of the Rules of Civil Procedure as follows: [5]

5 The language used to describe the appropriate test varies slightly in the authorities. I prefer the language of Lord Diplock in Allen, at p. 556, where he described the exercise of the power to dismiss for delay in these terms:

It should not in any event be exercised without giving the plaintiff an opportunity to remedy his default, unless the court is satisfied either that the default has been intentional and contumelious, or that the inexcusable delay for which the plaintiff or his lawyers have been responsible has been such as to give rise to a substantial risk that a fair trial of the issues in the litigation will not be possible at the earliest date at which, as a result of the delay, the action would come to trial if it were allowed to continue.

6 The first type of case described by Lord Diplock refers to those cases in which the delay is caused by the intentional conduct of the plaintiff or his counsel that demonstrates a disdain or disrespect for the court process. In dismissing cases which fall within this category, the court effectively declares that a continuation of the action in the face of the plaintiff's conduct would constitute an abuse of the court's process. These cases, thankfully rare, feature at least one, and usually serial violations of court orders. This case does not fall into that category.

7 The second type of case that will justify an order dismissing for delay has three characteristics. The delay must be inordinate, inexcusable and such that it gives rise to a substantial risk that a fair trial of the issues in the litigation will not be possible because of the delay: see De Marco, at paras. 22, 26; Armstrong, at paras. 11-12.

[40] The second branch of the test has been considered and reaffirmed by the Court of Appeal in the leading case of Ticchiarelli v Ticchiarelli, 2017 ONCA 1. [6]

[41] The PDSB also relies on Rule 24.01(2) of the Rules of Civil Procedure. This rule provides that the court shall, subject to subrule 24.02(2) of the Rules of Civil Procedure (relating to persons under disability), dismiss an action for delay if either of the circumstances of described in paragraphs 1 and 2 of subrule 48.14(1) of the Rules of Civil Procedure applies to the action, unless the plaintiff demonstrates that dismissal of the action would be unjust. Paragraph 1 of Rule 48.14(1) of the Rules of Civil Procedure, the action has not been set down for trial or terminated by any means by the fifth anniversary of the commencement of the action, is applicable to this action. Thus Rule 24.01(2) of the Rules of Civil Procedure directs the court to dismiss an action for delay when the action has not been set down within five years of commencement and the plaintiff is not able to demonstrate that the dismissal would be unjust.

[42] In its factum and supplementary written submissions, the PDSB submits that the test described in Langenecker and Ticcharelli govern this motion. The plaintiffs are in agreement.

[43] However, there is an argument that the applicable test on this motion is the two-part conjunctive test for status hearings in Faris v Eftimovski, 2013 ONCA 360, where the plaintiff has the onus of demonstrating that: (1) there is an acceptable explanation for the delay; and, (2) if the action were allowed to proceed, the defendant would suffer no non-compensable prejudice because of the plaintiff’s delay. [7]

[44] In Faris, [8] the Court of Appeal discussed the different procedural mechanisms to dismiss an action for delay under Rule 24.01 and Rule 48.14(13) of the Rules of Civil Procedure. The two tests are distinct from each other. [9] In Smith v Armstrong, 2018 ONSC 2435, [10] Justice Gordon held that the two-part conjunctive test outlined in Faris in respect of motions under Rule 48.14(13) of the Rules of Civil Procedure also applies to motions to dismiss pursuant to Rule 24.01(2) of the Rules of Civil Procedure on the basis that Rule 48.14(13) of the Rules of Civil Procedure was repealed and replaced with Rule 24.01(2) of the Rules of Civil Procedure. [11] However, in Nanak Homes Inc. v Arora, 2019 ONSC 6654, Justice McSweeney held that Rule 24.01(2) of the Rules of Civil Procedure does not modify the Rule 24.01 of the Rules of Civil Procedure test for dismissal due to delay. [12]

[45] The Court of Appeal in Faris explained that on a Rule 48 status hearing, the onus is on the plaintiff to show cause why the action should not be dismissed for delay. [13] The Court also noted that there is a high threshold to be overcome for the defendant seeking the dismissal of a case under Rule 24.01 of the Rules of Civil Procedure. [14]

[46] As the PDSB has argued the motion on the basis that the applicable test is the test described in Langenecker and Ticcharelli, which is apparently more favourable to the plaintiffs, and as the plaintiffs have agreed that this is the applicable test, I do not need to decide if the Faris test, where the plaintiff has the onus to show cause why the action should not be dismissed for delay, is applicable to this case. In any event, the result would not be different, as I would also have dismissed the action for delay under the Faris test.

[47] As the Court of Appeal has noted: [15]

In my view, rules 24.01 and 48.14(13) of the Rules of Civil Procedure each offer distinct means that may lead to the same end; the dismissal of the plaintiff's action for delay.

[48] The Court of Appeal has also said the following with respect to motions to dismiss for delay: [16]

An order dismissing an action for delay is obviously a severe remedy. The plaintiff is denied an adjudication on the merits of his or her claim. Equally obviously, however, an order dismissing an action for delay is sometimes the only order that can adequately protect the integrity of the civil justice process and prevent an adjudication on the merits that is unfair to a defendant.

[49] I will therefore apply the test described in Langenecker and Ticcharelli which the parties agree is applicable. To reiterate, an action should not be dismissed for delay unless: [17]

(1) the default is intentional and contumelious; or

(2) the plaintiffs or their lawyers are responsible for the inexcusable delay that gives rise to a substantial risk that a fair trial might not now be possible.

[50] The first type of case is one where “the delay is caused by the intentional conduct of the plaintiff or his counsel that demonstrates a disdain or disrespect for the court process”. [18] This type of case is rare.

[51] In the second type of case, the delay must be “inordinate, inexcusable and such that it gives rise to a substantial risk that a fair trial of the issues in the litigation will not be possible because of the delay.” [19]

[52] Inordinate delay is “measured simply by reference to the length of time from the commencement of the proceeding to the motion to dismiss.” [20]

[53] An enquiry into whether the delay is “inexcusable” requires a determination of the reasons for delay and an evaluation of whether those reasons afford an adequate explanation for the delay. [21]

[54] The requirement that the delay give rise to substantial risk that a trial will not be possible is: [22]

…directed at the prejudice caused by the delay to the defence's ability to put its case forward for adjudication on the merits. 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 [citation omitted].

[55] The responsibility for moving the action along rests chiefly with the plaintiff. [23]

[56] Any delay in the prosecution of an action requires an explanation. The onus is on the plaintiff to show that any delay was not intentional. In the absence of an explanation from the plaintiff for the delay, it is to be presumed that the delay is intentional. [24]

[57] The passage of time gives rise to a presumption of prejudice, which increases with the length of the delay. In some cases, the length of the delay and the reasons are such that a court may conclude that on this basis alone a fair trial is not possible and dismiss the action. Where the presumed prejudice is not sufficient to establish that a fair trial is not substantially at risk, the defendant must establish actual prejudice. [25]

[58] The plaintiff may rebut a presumption of prejudice with evidence that all documentary evidence has been preserved and the issues in the lawsuit do not depend upon on a detailed recollection of events or all the necessary witnesses are available and have a detailed recollection. Even if the presumption is rebutted, the action may still be dismissed where there is actual prejudice. [26]

POSITION OF THE PARTIES

[59] The PDSB is moving under both branches of the test. It submits that the delay is intentional and contumelious and that this is one the rare cases where an action should be dismissed for this reason. The moving party submits that it was incumbent upon the plaintiffs to provide evidence on the motion that the delay was unintentional but they have provided no evidence. The PDSB further submits that the delay is contumelious based on conduct between 2013 and 2015 when the plaintiffs were in breach of court orders and failed to pay costs as ordered by the court.

[60] The PDSB also submits that it is entitled to succeed on the second branch. It contends that the delay was inordinate and the plaintiffs have failed to provide an excuse for the delay. The PDSB contends that the plaintiffs have not rebutted the presumption of prejudice and in any event, the delay has resulted in actual prejudice to the PDSB.

[61] In their factum and in oral submissions, the plaintiffs take the position that the delay in the proceedings was caused by their former lawyer and that they did not instruct or expect the former lawyer to delay the proceedings and intended to advance their claim as quickly as reasonably possible. They further submit that the PDSB has not suffered actual prejudice as a result of the delay since the claim was issued.

ANALYSIS

[62] I will consider whether the action should be dismissed for delay based on the second type of case. As I have concluded that it should, I do not need to consider whether the case should be dismissed on the first branch of the test, i.e., whether the default is intentional and contumelious.

Is the delay inordinate?

[63] The delay in this case is from October 11, 2013, when the statement of claim was issued to September 9, 2021, when the PDSB served its notice of motion, a delay of approximately eight years.

[64] I have no hesitation in finding that the delay has been inordinate.

Is the delay inexcusable?

[65] In their factum and in oral argument the plaintiffs put the blame for the delay on their former lawyer who was counsel of record from inception to July 30, 2019. During this period of time the plaintiffs failed to respond to the demand for particulars (delivered on November 7, 2013 shortly after service of the statement of claim). That led the defendant to book a motion to strike out the statement of claim for failure to deliver particulars. The PDSB’s counsel asked for dates in mid-January 2015. The motion was scheduled to be heard on June 22, 2015. Thus, there was no activity by the plaintiff and, in particular, no response to the request for particulars from the period November 7, 2013 to January 2015 notwithstanding promptings from defence counsel, a period of about 14 months. There is no reason given for the plaintiffs’ refusal to provide particulars in the record before me.

[66] As set out above, on June 22, 2015, the plaintiffs were ordered to amend their statement of claim within 30 days. The plaintiffs did not do so. No one attended for the plaintiffs on the defendant’s motion to settle the order and strike out the statement claim on either October 22, 2015 or the return of that motion on December 1, 2015. There was no response from the plaintiffs’ former lawyer until November 15, 2015, when the plaintiffs’ former lawyer served a notice of motion to extend the time to amend the statement of claim.

[67] Ultimately, the PDSB agreed to accept the version of the amended statement of claim that had been sent to the PDSB’s lawyers by letter dated March 23, 2016. There was no communication from the plaintiffs from March 23, 2016 until July 30, 2019, when the plaintiff’s current counsel served a notice of change of solicitors, a period of over three years.

[68] Although the plaintiffs take the position that the delay in the proceedings was caused by their former lawyer, none of the plaintiffs has filed an affidavit, nor have they filed an affidavit from the former lawyer. The plaintiffs have only filed an affidavit from a lawyer in their current lawyer’s firm, Mr. Ryu. In his affidavit Mr. Ryu deposes:

An overwhelming portion of the delay with respect to this matter occurred while the Plaintiffs were represented by [the former lawyer], who unbeknownst to the Plaintiffs, during the time of that representation, was the subject of multiple disciplinary measures from the Law Society of Ontario, including multiple suspensions of his legal license. At all material times, the Plaintiffs intended to proceed with their litigation.

[69] Mr. Ryu did not speak to the plaintiffs, nor did he speak to the former lawyer.

[70] Mr. Ryu’s affidavit attaches three decisions from the Law Society of Ontario relating to the former lawyer which the plaintiffs rely on to support their position that former lawyers’ misconduct was the cause of the delay. I have reviewed these three decisions. Mr. Ryu acknowledged in cross-examination that the decisions do not concern complaints filed by the plaintiffs and there is no Law Society Tribunal decision relating to a complaint filed by the plaintiffs against the former lawyer. The decisions were obtained from a search of public legal databases.

[71] The plaintiffs argue that the delay was not intentional on the part of the plaintiffs. However, there is no evidence from the plaintiffs as to whether or not they intended to proceed with the litigation and no evidence from them that the fault for not moving the action forward rests with their former lawyer. The conclusory statement from Mr. Ryu as quoted above is not evidence. There is also no reason given in Mr. Ryu’s affidavit why the plaintiffs (or one of them) could not have submitted an affidavit on the motion.

[72] In essence, the plaintiffs are asking the court to infer that the delay was the fault of the former lawyer and was not intentional given the fact that the former lawyer was the subject of other complaints and was not responsive to the Law Society.

[73] The plaintiffs in their written submissions also argue that the fact that they changed lawyers in 2019, and provided the new firm with damages documentation and provided settlement instructions is evidence of their “willingness” to proceed with the matter. However, these actions do not address the substantial period of delay prior to 2019.

[74] In Mr. Tsung’s affidavit, filed by the PDSB, he deposes that he was not notified of any reasons for the plaintiffs’ delay in pursuing the action. He says that he is not aware of any reasons as to why Mr. Grewal was incapable of pursuing the litigation. He further deposes:

46. I am aware that in the period between March 2016 and July 2021, Mr. Grewal has pursued internal complaints with PDSB (including but not limited to sending complaints to the PDSB’s Superintendents) and has also pursued other legal proceedings on his own behalf against the PDSB. For the purposes of this motion, the particulars of the internal complaints or other legal proceedings are irrelevant. However, I do note that the legal proceedings include an application that Mr. Grewal filed with the Human Rights Tribunal of Ontario as against the PDSB.

[75] The plaintiffs submit in their factum that while there was “unfortunately a long delay” it was not inexcusable. Further they assert that the plaintiffs have no legal background or experience with civil proceedings. There is no evidence cited for these assertions. In their factum the plaintiffs submit that they “relied on [the former lawyer] to their detriment – their only fault was trusting that their lawyer was advancing their interests on their behalf. [The former lawyer’s] failure to uphold his obligations to the Plaintiffs should not bar them from advancing their Claims.” However, as I have said, there is no evidence of this from the plaintiffs. It is possible that that the plaintiffs instructed the former lawyer to move the case forward and the plaintiffs were misled about the true state of affairs. It is also possible that the plaintiffs decided to not to proceed with this litigation or put it on the backburner while they focussed on other matters, including other grievances with the PDSB. I simply do not have evidence from the plaintiffs.

[76] The PDSB asks that I draw an adverse inference from the failure of the plaintiffs to provide direct affidavit evidence from one or more of the plaintiffs relying on the principle as stated in The Law of Evidence in Canada: [27]

In civil cases, an unfavourable inference can be drawn when, in the absence of an explanation, a party litigant does not testify, or fails to provide affidavit evidence on an application, or fails to call a witness who would have knowledge of the facts and would be assumed to be willing to assist that party. In the same vein, an adverse inference may be drawn against a party who does not call a material witness over whom he or she has exclusive control and does not explain it away. The inference should only be drawn in circumstances where the evidence of the person who was not called would have been superior to other similar evidence. The failure to call a material witness amounts to an implied admission that the evidence of the absent witness would be contrary to the party’s case, or at least would not support it. The determination of whether to draw an adverse inference due to failure to call a witness is in the discretion of the court. [citations omitted]

[77] I agree that that an adverse inference should be drawn. There is no explanation for why none of the plaintiffs filed an affidavit. The deponent of the affidavit, Mr. Ryu, did not even speak to the plaintiffs before swearing his affidavit.

[78] In support of their proposition that reliance on counsel is a reasonable excuse, the plaintiffs rely on two decisions. In Kerr v CIBC World Markets Inc., 2013 ONSC 7685 (Div Ct), [28] the court considered the effect of negligence on the part of one of the plaintiffs’ lawyers should play in the determination of whether an action should be restored to the trial list. In that case Justice Newbould stated: [29]

In this case, the explanation given by the plaintiff is that she always wanted to proceed with the action and instructed her lawyers to do so and that she constantly enquired of her lawyers about a trial date. It was her lawyers that failed her. That in my view is an acceptable explanation for the delay in this case. It was accepted as an explanation in Farmers Oil & Gas Inc. v. Ministry of Natural Resources, 2012 ONSC 6432, a case involving a five year delay. And as Sharpe J.A. said in Chiarelli, 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.

[79] However, in Kerr, it is clear that the plaintiff swore an affidavit on the motion [30] and thus the court had direct evidence from the plaintiff.

[80] The plaintiffs also rely on Cornell v Tuck, 2018 ONSC 7085, where Justice Coates set aside a Registrar’s order dismissing an action for delay. In so doing she said: [31]

There is evidence that the Plaintiff always intended to proceed with the case, and the Plaintiff's reliance on [the lawyer’s] advice coupled with [the lawyer’s] extensive health and medical issues provides a reasonable, acceptable and satisfactory explanation for the delay.

[81] As in Kerr, the plaintiff in Cornell submitted his own affidavit on the motion. [32]

[82] The PDSB argues that even if some of the delay is the responsibility of the plaintiffs’ lawyer, this does not provide an excuse and that the Court of Appeal has been clear that delay caused by the plaintiff or their counsel are both relevant in the context of a dismissal for delay under Rule 24 of the Rules of Civil Procedure.

[83] I repeat the language adopted by the Court of Appeal in Langenecker respecting the second branch of the test: [33]

the plaintiffs or their lawyers are responsible for the inexcusable delay that gives rise to a substantial risk that a fair trial might not now be possible [emphasis added]

[84] More recently, the Divisional Court in 828343 Ontario Inc. v Demshe Forge Inc., 2022 ONSC 350 (Div Ct), found delay to be inexcusable saying that “the delay was entirely the responsibility of the plaintiff (or its lawyer),” [34] not distinguishing the conduct of the plaintiff from the conduct of the lawyer.

[85] In conclusion, I find that the delay is inexcusable.

Whether the delay gives rise to a substantial risk that a fair trial will not be possible

[86] The Court of Appeal in Ticchiarelli [35] explained this part of the test as follows:

Here the test is whether the delay has been prejudicial to the defendants in that it creates a substantial risk that a fair trial of the issues will not be possible. The motion judge correctly stated this principle and the related rule that inordinate delay generates a presumption of prejudice. He then directed himself to the comments of this court in Langenecker, at para. 11: "Memories fade and fail, witnesses can become unavailable, and documents can be lost. The longer the delay, the stronger the inference of prejudice to the defence case flowing from that delay".

The motion judge noted that there is an evidentiary burden on the plaintiff to demonstrate that the defendants have not been prejudiced and, by way of example, referred to key witnesses being available or documents having been preserved. The motion judge also noted that in addition to relying on the inference of prejudice arising from the inordinate delay, it was open to the defendants to lead evidence of actual prejudice.

[87] There is a strong presumption of prejudice arising from the fact that this action concerns matters in 2011. This matter is still at the pleadings stage. Taking into account the time it will take to complete pleadings, conduct examinations for discovery, and arrange for the mandatory mediation, the action would not likely come to trial for more than ten years after it was commenced.

[88] The plaintiffs submit that they have rebutted the presumption of prejudice in that the attempts to identify the senders of the emails in question had already hit a wall before the delays began. The plaintiffs further submit that the PDSB has had ample opportunity to preserve relevant documents and to identify, locate and obtain witness statements from those who could have provided further information.

[89] The plaintiff’s claim is not limited to the actions of the unknown persons who sent the email. The plaintiffs allege that the PDSB is vicariously responsible for the actions of the sender(s) of the emails which raises factual issues beyond the identity of the sender(s). In addition, the plaintiffs also make broad allegations of direct negligence against the PDSB including, for example, that the “PDSB permitted a caustic and hostile environment to exist.”

[90] The PDSB’s counsel followed up with the plaintiffs’ former lawyer for particulars throughout 2015. In March 2016, the PDSB was prepared to accept the draft content of the plaintiffs’ proposed amended statement of claim, with the expectation that an amended statement of claim would be served promptly, so that the PDSB could prepare its defence and conduct discoveries within a reasonable time thereafter.

[91] In his affidavit Mr. Tsung deposes in part as follows:

52. Although the PDSB attempted to preserve documents following the issuance of the Plaintiffs’ action in October 2013, the available information is limited due to the unidentified sender(s) of the malicious e-mails and the lack of particulars regarding many of the Plaintiffs’ allegations. Without the prompt completion of the pleadings stage and an opportunity for the PDSB to engage in discoveries, and considering the significant passage of time, I believe that by the time the Plaintiffs’ counsel purported to serve the Amended Statement of Claim in July 2021, documents that may have been arguably relevant were unintentionally lost, destroyed or purged due to the PDSB not being in a position of knowing which documents might be arguably relevant.

53. Furthermore, due to the broad nature of the Plaintiffs’ claim against the PDSB, including but not limited to the apparent allegation that the PDSB “permitted a caustic and hostile environment to exist which led employees such as the Defendant John Doe to believe he could engage in anti-social and unlawful behaviour with impunity”, we anticipate that witness testimony regarding the events that occurred in 2011 will be required to make a full answer and defence to the Plaintiffs’ claims. As these allegations pertain to events occurring over 10 years ago, I believe that the PDSB will not be able to identify or locate relevant witnesses.

[92] As noted, Mr. Tsung was not cross-examined.

[93] This is not a commercial case that is largely document driven. In order to defend itself against the plaintiffs’ broad allegations, including with respect to an allegedly hostile work environment in October 2011, the PDSB would very likely have to rely upon the testimony of witnesses who may yet be unidentified and who may not be available to testify were they to be identified at this late stage.

[94] I am satisfied that the delay gives rise to a substantial risk that a fair trial will not be possible.

Conclusion

[95] The defendant’s motion is granted and this action is dismissed.

COSTS

[96] Both parties submitted cost outlines and costs were argued at the conclusion of the hearing. However, given that my request for evidence as to the age of the Savannah and Jordan and the fact that I permitted additional written submissions on certain issues, I am providing the parties with an opportunity to make cost submissions in writing. I strongly encourage the parties to agree to costs. However, if they cannot, the PDSB may submit costs submissions of up to three pages exclusive of a cost outline by January 26, 2023. The plaintiffs may deliver costs submissions of up to three pages, exclusive of a cost outline by February 9, 2023. Cost submissions, which shall be double-spaced, 12 point font, shall be filed with the court and provided to my Assistant Trial Coordinator.

L. La Horey, A.J. Date: January 5, 2023

[1] As an associate judge, I do not have the jurisdiction of a judge to “order otherwise”.

[2] Endorsement dated September 26, 2022. The cases I referred to counsel to were Ticchiarelli v Ticchiarelli, 2017 ONCA 1 and 828343 Ontario v Forge Inc., 2022 ONSC 350 (Div Ct.), motion for an extension of time to file a notice of motion for leave to the Court of Appeal refused, 2022 ONCA 412.

[3] Effigi Inc. v CG Operations (H/O) Limited at para 17

[4] I was pointed to no case law on this point.

[5] Langenecker v Sauvé, 2011 ONCA 803 at paras 5 – 7

[6] Ticchiarelli at para 12. See also Armstrong v McCall at para 11.

[7] Faris v Eftimovski, 2013 ONCA 360 at paras 32-33

[8] Faris at paras 27 - 42

[9] Faris at para 25

[10] Smith v Armstrong, 2018 ONSC 2435

[11] Smith at paras 23 – 25. Neither side referred to Smith or Faris.

[12] Nanak Homes Inc. v Arora, 2019 ONSC 6654 at para 11. This case was cited by PDSB.

[13] Faris at para 42

[14] Faris at para 37

[15] Faris at para 38

[16] Langenecker at para 5

[17] Armstrong v McCall at para 11

[18] Langenecker at para 6

[19] Ticcharelli at para 12, Langenecker at para 7

[20] Langenecker at para 8

[21] Langenecker at para 9

[22] Langenecker at para 11

[23] Nanak at para 33

[24] Szpkowsky v Tenenbaum, 2017 ONSC 18 (Master) at para 19

[25] Nanak at paras 15 - 16

[26] Armstrong at para 11

[27] Sydney N. Lederman, Alan W. Bryant & Michelle K. Fuerst), 6th ed. (Toronto, Ontario: LexisNexis Canada Inc., 2022) at para 6.509

[28] 2013 ONSC 7685 (Div Ct)

[29] Kerr v CIBC World Markets Inc., 2013 ONSC 7685 at para 67

[30] Kerr at para 12

[31] Cornell v Tuck, 2018 ONSC 7085 at para 80

[32] Cornell at para 57

[33] Langenecker at para 5

[34] 828343 Ontario Inc. v Demshe Forge Inc. at para 89. See also Jacob v Playa El Agua Development Limited Partnership, 2015 ONCA 372 at para 3 where the second branch of the test is said to be “an inordinate, inexcusable delay, for which the plaintiff or his lawyer is responsible, which gives rise to a substantial risk that a fair trial might not now be possible” [emphasis added]

[35] Ticchiarelli at paras 28 and 29