Court File and Parties

COURT FILE NO.: CV-18-00076842-0000 DATE: 2023-03-13

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Yassin Aden Osman v. Jamal Mohamed, Shukri Ali Ali, and The Commonwell Mutual Insurance Group

BEFORE: Associate Justice M. Fortier

COUNSEL: Makena Korte-Moore, for the Defendants, Shukri Ali Ali and the Commonwell Mutual Insurance Group (Moving Parties) No one appearing, for the Plaintiff, Yassin Aden Osman (Responding Party)

HEARD: February 28, 2023

MOTION ENDORSEMENT

Introduction

[1] The defendants, Shukri Ali Ali (“Mr. Ali”) and the Commonwell Mutual Insurance Group, seek an order dismissing the plaintiff’s action against these defendants pursuant to Rule 24 of the Rules of Civil Procedure (the “Rules”) for delay. The defendant Jamal Mohamed (“Mr. Mohamed”) has been noted in default.

[2] The plaintiff Yassin Aden Osman (“Mr. Osman”) has not opposed the motion. Although advised of the date of the motion and served with the motion materials on November 16, 2022, no materials were filed on behalf of the plaintiff, and no one appeared on behalf of the plaintiff.

Background

[3] The action arises out of a single vehicle accident that occurred on June 16, 2016. The plaintiff, who was operating the vehicle owned by the defendant, Mr. Ali, lost control of the vehicle when the front seat passenger, the defendant, Mr. Mohamed, allegedly grabbed the steering wheel. Mr. Ali was in the back seat at the time of the collision. The defendant Commonwell Mutual Insurance Group (“CMIG”) is the automobile insurer for Mr. Ali.

[4] On June 18, 2018, two days after the expiry of the limitation period, the plaintiff issued a Statement of Claim for damages allegedly caused by the motor vehicle accident. The defendants served and filed their Statement of Defence and Crossclaim on January 30, 2019. The defendants defended the action in part on the basis that the plaintiff failed to commence the action within the two-year limitation period pursuant to the Limitations Act.

[5] Since the Statement of Claim was issued on June 18, 2018, the plaintiff has not taken any meaningful steps to move the action forward. The action has not been set down for trial.

[6] For the reasons outlined below, the defendants’ motion is granted.

The Law and Analysis

The Law

[7] Rule 24.01(1) of the Rules, provides that a defendant who is not in default under the Rules may move to have an action dismissed for delay where the plaintiff has failed to set the action down for trial within six months of the close of pleadings.

[8] The court in New Solutions Financial Corporation v. Zilkey described the two types of cases that would justify an order dismissing the action for delay and summarized the test on such a motion as follows:

The law is settled that an action should not be dismissed for delay unless (i) the default is intentional and contumelious or (ii) the plaintiff or plaintiff’s counsel is responsible for an inexcusable delay that gives rise to a substantial risk that a fair trial may not be possible […]. A finding that either of these two branches of the test is met is sufficient to dismiss the action.

[9] Cases where the default is intentional and contumelious are those 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. The cases, feature at least one, and usually serial violations of court orders. Langenecker v Sauvé, 2011 ONCA 803, 286 O.A.C. 268, at para. 6.

[10] 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. Langenecker, at para. 7.

[11] The inordinance of the delay is measured by referencing the commencement of the proceeding to the motion to dismiss. The requirement that the delay be “inexcusable” requires considering the reasons for the delay and assessing whether those reasons adequately explain the delay. In assessing the explanations offered, the court will consider not only the credibility of those explanations and the explanations offered for individual parts of the delay, but also the overall delay and the effect of the explanations. Langenecker, at paras. 7-10.

[12] If the plaintiff’s delays are determined to be intentional, contumelious or inexcusable there is a presumption of prejudice, and the “defendant need not lead actual evidence of prejudice and the action will be dismissed for delay unless the plaintiff rebuts the presumption.” Woodhealth Developments Ltd. v Goldman, 2003 46735 (ON SCDC) at paras 4-5.

Analysis

[13] In my view, the requirements of r. 24.01(1) which permit the plaintiff to move to have the action dismissed for delay are met. In particular, the defendant is not in default under the Rules and the plaintiff’s action has not been set down for trial within six months of the close of pleadings.

i – The default is intentional and contumelious

[14] Ample, uncontradicted evidence on this motion demonstrates that the delay in this proceeding is caused by the intentional conduct of the plaintiff and his counsel. That intentional conduct demonstrates a disrespect for the court process, including the violation of court orders. In particular:

• A case conference was held on May 9, 2022, at which I ordered the parties to exchange sworn affidavits of documents by June 30, 2022 and to complete examinations for discovery by September 30, 2022. While the defendants served their sworn affidavits of documents, the plaintiff did not. Moreover, the plaintiff and the plaintiff’s counsel failed to attend the scheduled examination for discovery on September 27, 2022. A Certificate of Non-Attendance was obtained by defence counsel. Neither the plaintiff nor his counsel provided any reason for not attending this required step in the litigation.
• The plaintiff and plaintiff’s counsel failed to attend a court ordered case conference on December 19, 2022. No explanation or reason for the non-attendance was provided to the court or to the defendants.
• Neither the plaintiff nor counsel responded to this motion despite being served with the motion material in November 2022. Moreover, court staff emailed counsel for the plaintiff on the day of the motion and the matter was stood down for 30 minutes at my direction. No response was received at that time or thereafter.

ii – Inexcusable delay

[15] Based on the evidence before me, I find that the plaintiff and the plaintiff’s counsel are responsible for a delay that is inordinate and inexcusable. This delay gives rise to a substantial risk that a fair trial of the issues in the litigation will not be possible.

[16] Since the action was commenced on June 18, 2018, almost five years ago, the plaintiff has not taken any steps to move this matter forward beyond the pleadings stage. On the other hand, the defendants have taken significant steps to move the proceeding forward, without success. Notably, the defendants sought the assistance of the court, scheduled case conferences and initiated examinations for discovery. The defendants engaged in frequent and persistent communication to plaintiff’s counsel to move the matter along, without success.

[17] Essentially, there has been little or no response to any correspondence from defendants’ counsel for several years. No reasons have been provided for this lack of communication. For example:

• Between December 13, 2019 and April 28, 2020, defence counsel wrote to opposing counsel on five occasions requesting productions and counsel’s position on dismissing the action against CMIG given that there were no coverage issues. Plaintiff’s counsel did not respond to any of the correspondence.
• Between November 2, 2020 and October 7, 2021, defence counsel made a further eight attempts at communication with plaintiff’s counsel, without response. It was only on October 7, 2021, that defence counsel was informed that a new lawyer within the same firm was assuming carriage of the matter. Again, no productions were provided and the plaintiff’s position regarding CMIG remained unknown.
• Between November 9, 2021 and March 30, 2022, defence counsel followed up a further seven times, requesting productions, availability for examinations for discovery and seeking confirmation as to who had carriage of the file. The correspondence and telephone calls remained largely unanswered.

[18] I accept the defendants’ evidence that the plaintiff’s delay has resulted in loss of witnesses as the defendants Mr. Mohamed and Mr. Ali cannot be located. Further, the plaintiff has alleged that the motor vehicle was not fit for operation and the delay has likely resulted in the defendants’ inability to inspect the vehicle or to obtain mechanical service records to address those allegations.

[19] Because the plaintiff has not opposed the motion nor filed any responding materials, there is no evidence before me of any explanation for the delay nor any evidence to rebut the presumption of prejudice caused by the delay.

[20] Based on the uncontradicted evidence before me, I find that the plaintiff has met both branches of the test as laid out by the court in New Solutions Financial Corporation v. Zilkey; the default is intentional and contumelious and the delay is inexcusable. Accordingly, the plaintiff’s action is dismissed for delay.

Conclusion

[21] For the reasons outlined above, the defendants’ motion is granted. The action of the plaintiff Mr. Osman, as against the defendants, Mr. Mohamed, Mr. Ali and CMIG is dismissed for delay.

[22] The plaintiff shall pay costs of this motion and defending the action to the defendants in the sum of $13,250.00 inclusive of HST and disbursements within 30 days.

Marie T. Fortier

Associate Justice M. Fortier DATE: March 13, 2023