ONTARIO SUPERIOR COURT OF JUSTICE
RE: Wendy Delgado-Zurita, Plaintiff
-and-
City of Toronto and Toronto Transit Commission, Defendants
-and-
Guild Electric Limited, Third Party
BEFORE: Robert Centa J.
COUNSEL: Maria Oliveira, for the plaintiff
Cara Davies and Amrit Sandhu (student-at-law), for the defendant the City of Toronto
Sarah Merredew, for the defendant Toronto Transit Commission
Nathan Fabiano, for the third party
HEARD: December 21, 2022
ENDORSEMENT
1Wendy Delgado-Zurita alleges that on September 10, 2013, she tripped and fell on a maintenance hole cover. On December 15, 2014, she sued the City of Toronto and the Toronto Transit Commission for $1 million. On February 20, 2020, because Ms. Delgado-Zurita had not set the action down for trial within five years of the claim, the registrar dismissed her action for delay pursuant to rule 48.14 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
2Ms. Delgado-Zurita moved to set aside the registrar’s order. On January 22, 2021, Master Sugunasiri, as she then was, gave Ms. Delgado-Zurita a lifeline. The master set aside the registrar’s order and restored the action. The set-aside order fixed a mandatory timetable for the remaining steps in the proceeding and required that the action be set down for trial no later than December 31, 2021. Ms. Delgado-Zurita breached the order in four ways. She did not:
a. deliver her sworn affidavit of documents on or before January 31, 2021;
b. answer 23 of her 24 undertakings on or before August 15, 2021;
c. attend the mandatory mediation on or before November 30, 2021; and
d. set the action down for trial on or before December 31, 2021.
3Ms. Delgado-Zurita now moves pursuant to rule 48.14 to vary the set-aside order and for an extension of time to set the matter down for trial. She seeks a second lifeline to continue her action, which she started over eight years ago.
4Ms. Delgado-Zurita has not provided a reasonable, acceptable, or satisfactory explanation for her delay or the breaches of the set-aside order. She has not demonstrated that the defendants will not be prejudiced. Viewed contextually and balancing the desire to have civil actions decided on their merits with the need to have disputes determined in a timely and efficient manner, I find that the court should not give Ms. Delgado-Zurita a third opportunity to advance her claim in a timely way.
5For the reasons that follow, I dismiss Ms. Delgado-Zurita’s motion and dismiss the action.
Procedural history
6Before turning to the merits of the motion, it will be helpful to explain how this matter came before me.
7As I will explain below in more detail, Ms. Delgado-Zurita did not comply with several elements of the timetable that was fixed in the set-aside order. On November 1, 2021, all of the parties and counsel, except Ms. Delgado-Zurita, attended the mandatory mediation. Counsel for Ms. Delgado-Zurita advised counsel for the defendants that they had not spoken to the plaintiff since her examination for discovery on June 11, 2021, did not have instructions for the mediation, and could not proceed. The mediation was cancelled. The action was not set down for trial by the court-ordered deadline of December 31, 2021.
8On January 21, 2022, counsel for the TTC happened to check the court file and discovered that counsel for the plaintiff had booked a “motion on notice” for February 3, 2022. Counsel for the plaintiff had not discussed any motions with the counsel for the defendants, had not delivered a notice of motion (even in draft form), much less a motion record, and had not canvassed this date with counsel for the defendants. Counsel for Ms. Delgado-Zurita advised counsel for the defendants that this was to be the motion to vary the set-aside order and to extend the time to set the matter down for trial. Not surprisingly, counsel for the defendants were not available on February 3, 2022, and the motion needed to be rescheduled.
9On March 7, 2022, counsel for the plaintiff booked the motion to be argued before an associate judge on December 13, 2022. Inexplicably, counsel for Ms. Delgado-Zurita booked only 15 minutes for the motion. Not surprisingly, given the large volume of materials filed, the associate judge declined to hear the motion in that limited time. Associate Justice La Horey issued the following endorsement:
This is an opposed motion brought by the plaintiff for an extension of the set down date ordered by Associate Justice Sugunasiri (as she then was). The plaintiff booked this motion for 15 minutes (although the moving party purported to confirm for 20 minutes - this is not permitted - parties may not confirm the motion for more than the time booked). There are four counsel attending on this motion. The parties have uploaded over 1200 pages to CaseLines. No party has filed a compendiums [sic]. This is a long motion. Motion adjourned sine die. If the motion party wishes to proceed with the motion they should submit a request form for a long motion. I did not review the materials other than to ascertain the nature of the motion and that it was contested. I am advised by the responding counsel to the motion that they were not consulted about the time booked for the motion and did not become aware that only 15 minutes had been booked until when the confirmation form was submitted last week. Responding counsel also advised that they were not consulted before the confirmation form was submitted. I am reserving costs of today's attendance to the associate judge hearing the motion. Motion adjourned sine die to be booked as a long motion. I am not seized, as I have not read the materials.
10The next day, December 14, 2022, the parties appeared before me in Civil Practice Court to book a motion by the third party for summary judgment to dismiss the claim. I learned what had happened the previous day before the associate judge and advised the parties that I was not inclined to book a motion for summary judgment in parallel to Ms. Delgado-Zurita’s motion to vary the set-aside order and extend the timetable. Counsel advised me that they thought the plaintiff’s motion would be rescheduled to December 2023.
11In response to my question, counsel advised me that they had already filed all the material to be used on the motion and that they had been ready to proceed on December 13. To avoid further delay, and with the consent of counsel, I scheduled Ms. Delgado-Zurita’s motion to be heard before me for two hours on December 21, 2022, beginning at 8:00 a.m. I thank counsel for their flexibility in scheduling the return of the motion.
Ms Delgado-Zurita’s affidavit
12On December 7, 2022, the defendants delivered their factums for use on the motion. Each defendant noted the absence of evidence on the motion from Ms. Delgado-Zurita. The only evidence filed on behalf of Ms. Delgado-Zurita on the motion came from two affidavits affirmed by Sidney Lebowitz, her counsel.
13In its factum, the City urged the court to draw an adverse inference against Ms. Delgado-Zurita because “as of the date of this factum, the plaintiff has not put in her own affidavit in support of this motion.” The City submitted:
There is no evidence before this Court from the plaintiff herself, no evidence as to why the plaintiff did not reply to the emails and phone calls from her lawyers for almost a year, and no evidence as to what family member of the plaintiff died, when they died or details as to why this particular family member's death prevented the plaintiff from participating in mediation and advancing her claim.
14During oral argument, counsel for Ms. Delgado-Zurita referred me to an affidavit sworn by her client on December 14, 2022, which was delivered to counsel for the defendants at about 5:00 p.m. on the day it was affirmed. The affidavit was delivered after the day on which the motion was to be argued, after the defendants delivered their factums, and after counsel for the TTC cross-examined Mr. Lebowitz on his two affidavits.
15The affidavit was also delivered after the attendance in Civil Practice Court, at which counsel advised me that all materials had been filed and that the motion was ready to be argued. If counsel for Ms. Delgado-Zurita had told me that she intended to deliver an affidavit from her client, I would not have scheduled this motion to be heard on December 21, 2022.
16Counsel for Ms. Delgado-Zurita submitted that the affidavit was necessary to reply to questions raised by the defendants during the cross-examination of Mr. Lebowitz on December 1, 2022. I reject this submission. Ms. Delgado-Zurita’s explanation for why she did not attend the mandatory mediation was the central factual dispute on this motion. The much more likely explanation for the late-breaking affidavit is that Ms. Delgado-Zurita wished to blunt the forceful arguments in the defendants’ factums about the absence of her own evidence.
17The late delivery of the affidavit put counsel for the defendants in a difficult position. Should they jeopardize the motion date by attempting to cross-examine Ms. Delgado-Zurita? Would that cross-examination then require them to file supplementary factums? Ultimately, the defendants decided to proceed with the motion without cross-examining Ms. Delgado-Zurita. The defendants objected, however, to the admissibility of her affidavit on the basis of rule 39.02, which provides:
39.02 (1) A party to a motion or application who has served every affidavit on which the party intends to rely and has completed all examinations under rule 39.03 may cross-examine the deponent of any affidavit served by a party who is adverse in interest on the motion or application.
(2) A party who has cross-examined on an affidavit delivered by an adverse party shall not subsequently deliver an affidavit for use at the hearing or conduct an examination under rule 39.03 without leave or consent, and the court shall grant leave, on such terms as are just, where it is satisfied that the party ought to be permitted to respond to any matter raised on the cross-examination with evidence in the form of an affidavit or a transcript of an examination conducted under rule 39.03.
18The defendants submit that because Ms. Delgado-Zurita delivered the affidavit after cross-examinations were completed, she needs leave of the court, which she did not seek and should not obtain.
19I am not satisfied that rule 39.02(2) prohibits Ms. Delgado-Zurita introducing her affidavit because she did not cross-examine on any of the affidavits delivered by the adverse party. In any event, if it were necessary, I would grant her leave to file the affidavit. Unless Ms. Delgado-Zurita is successful on this motion, her action will be dismissed without a hearing on the merits. It is extremely important that she have a full opportunity to persuade the court and to do so on a complete record. I will consider her affidavit.
20Nevertheless, the late delivery of this affidavit is unacceptable. The Rules of Civil Procedure are designed to place finite limits on the evidentiary element of motions, an element that is all too frequently time-consuming, expensive, and drawn-out: Brock Home Improvement Products Inc. v. Corcoran (2002), 2002 CanLII 49425 (ON SC), 58 O.R. (3d) 722 (S.C.), at para. 8.
21The late delivery of this affidavit is another example of Ms. Delgado-Zurita not following a timetable among counsel, violating the spirit (if not the letter) of the Rules of Civil Procedure, delaying the orderly advancement of this litigation, and failing to engage with this litigation in a responsible and timely way. The delivery of this affidavit after the date the motion was to be argued undermines her claim that “it is, and has always been, my intention to proceed with this litigation.”
The applicable test where a plaintiff seeks to vary an order that set-aside a dismissal order
22The appropriate test to be applied on this motion is set out in Jadid v. Toronto Transit Commission, 2016 ONSC 1176 (“Jadid (ONSC)”), aff’d 2016 ONCA 936 (“Jadid (ONCA)”); see also, Slota v. Kenora-Rainy River Districts Child and Family Services, 2020 ONSC 8105; Samuels v. Mai, 2020 ONCA 408; Wood v. Shoppers Drug Mart, 2018 ONSC 1097.
23In Jadid (ONSC), Dunphy J. held where a plaintiff seeks to vary an order that set aside a registrar’s order dismissing an action for delay, the court should consider the four criteria described in para. 41 of Reid v. Dow Corning Corp. (2001), 11 C.P.C. (5th) 80 (Ont. S.C.), rev’d on other grounds (2002), 48 C.P.C. (5th) 93 (Ont. Div. Ct.), along with four additional considerations. The Court of Appeal for Ontario explicitly approved of this approach.
24Justice Dunphy noted that the four-part Reid test was the starting point for considering an appeal of a registrar’s order of dismissal:
a. Explanation of the litigation delay: The plaintiff must adequately explain the delay in the progress of the litigation from the institution of the action until the deadline for setting the action down for trial as set out in the status notice. She must satisfy the court that steps were being taken to advance the litigation toward trial, or if such steps were not taken to explain why. If either the solicitor or the client made a deliberate decision not to advance the litigation toward trial, then the motion to set aside the dismissal will fail.
b. Inadvertence in missing the deadline: The plaintiff or her solicitor must lead satisfactory evidence to explain that they always intended to set the action down within the time limit set out in the status notice, or request a status hearing, but failed to do so through inadvertence.
c. The motion is brought promptly: The plaintiff must demonstrate that she moved forthwith to set aside the dismissal order as soon as the order came to her attention.
d. No prejudice to the defendant: The plaintiff must convince the court that the defendants have not demonstrated any significant prejudice in presenting their case at trial as a result of the plaintiff's delay or as a result of steps taken following the dismissal of the action.
25Justice Dunphy observed that this test was only the starting point where, as here, the plaintiff was coming to the court seeking a second lifeline. At para. 53, Dunphy J. wrote:
While the four Reid factors are clearly the starting point for considering an appeal of a Registrar’s order of dismissal, this is not such a case. That was what the motion before B. O’Marra J. on February 17, 2012 was. What is before me now is a motion to vary the order that set aside the Registrar’s order. While the criteria applicable to the initial order are certainly relevant and may be turned to by way of analogy, they do not fully address the additional factor of a moving party who has been to the well for relief once and returns a second time. The Reid criteria are the minimum starting point, but more is required.
26Justice Dunphy concluded that because the plaintiff in Jadid (ONSC) was seeking a second lifeline, he would apply the Reid factors in light of four additional considerations:
a. The total delay from the commencement of claim until the order setting aside the registrar’s order dismissing the action should be considered and weighed separately from the delay after the set-aside order. The explanation for the total delay and the explanation for failing to meet the timelines established in the set-aside order must be considered separately.
b. The facts are to be reviewed contextually, and no one factor is to be given priority over the others. The failure to satisfy any one of the criteria may be dispositive depending on the circumstances, but this will not be so in every case.
c. The onus is not on the defendant to demonstrate prejudice and prejudice may be inferred by from the passage of time.
d. The fact that the plaintiff seeks a second lifeline justifies a heightened level of scrutiny on each factor as well as a consideration of what explanation, if any, is offered for having effectively ignored the first lifeline.
27This approach mandates a balancing of interests. At paras. 17-19 of 1196158 Ontario Inc. v. 6274013 Canada Ltd., 2012 ONCA 544, 112 O.R. (3d) 67, Sharpe J.A. described the balancing of interests as follows:
The civil justice system aims to resolve disputes fairly, on the merits and in a timely and efficient manner. The Rules of Civil Procedure provide that the rules are to be "liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits": rule 1.04(1).
Achieving that goal in cases involving dismissal for delay requires a careful balance of two fundamental principles. The first is that civil actions should, if possible, be decided on their merits and procedural rules should be interpreted accordingly. The second is that the procedural rules that aim to resolve disputes in a timely and efficient manner can only achieve their goal if they are respected and enforced.
Time lines prescribed by the Rules of Civil Procedure or imposed by judicial orders should be complied with. Failure to enforce rules and orders undermines public confidence in the capacity of the justice system to process disputes fairly and efficiently. On the other hand, procedural rules are the servants of justice not its master. We must allow some latitude for unexpected and unusual contingencies that make it difficult or impossible for a party to comply. We should strive to avoid a purely formalistic and mechanical application of time lines that would penalize parties for technical non-compliance and frustrate the fundamental goal of resolving disputes on their merits. As Laskin J.A. stated in Finlay v. Van Paassen, 2010 ONCA 204, 101 O.R. (3d) 390 (Ont. C.A.), at para. 14, "the Rules and procedural orders are construed in a way that advances the interests of justice, and ordinarily permits the parties to get to the real merits of their dispute".
28A plaintiff need not satisfy each of the Reid factors to succeed. Ultimately, the court will adopt a contextual approach and exercise its discretion considering the relevant factors and balancing the interests of the parties: Scaini v. Prochnicki, 2007 ONCA 63, 85 O.R. (3d) 179, at paras. 21-24.
Factor One: Is there a satisfactory explanation for the delay?
29I accept Ms. Delgado-Zurita’s submission that she must provide a “reasonable, acceptable, or satisfactory” explanation for the delay: Kupets v. Bonavista Pools Ltd., 2015 ONSC 7348 (Div. Ct.), at para. 18.
The delay from the initiation of the action to the set-aside order
30Ms. Delgado-Zurita submits that she did not cause any material unexplained delay from the commencement of the action on December 15, 2014, until it was dismissed for delay on February 20, 2020. She notes that pleadings did not close until May 2018, when the third party delivered its statement of defence, that the TTC requested the adjournment of discoveries that were scheduled for 2019, and that examinations would have proceeded on May 7, 2020, but for the order dismissing the action for delay. Ms. Delgado-Zurita submits that her counsel’s inadvertence caused part of the delay and that she should not be faulted for that. She indicates that she moved promptly to set aside the order.
31The defendants do not take serious issue with Ms. Delgado-Zurita’s submissions on most of this period of delay. They point out, however, that there was significant delay after Ms. Delgado-Zurita indicated that she intended to set aside the order. On February 25, 2020, counsel for Ms. Delgado-Zurita wrote to the defendants to seek their consent to set aside the dismissal order. Counsel for the defendants requested motion materials but heard nothing further for eight months. On November 1, 2020, without having provided draft material or consulting with counsel for the defendants, counsel for Ms. Delgado-Zurita advised that they had booked the motion to be heard on January 22, 2021. Ms. Delgado-Zurita delivered motion materials on January 12, 2021, which was 10 days before the motion and almost one year after counsel for the defendants first requested to see the material. Ultimately, the defendants did not oppose Ms. Delgado-Zurita’s motion to set aside the dismissal order and on January 22, 2021, the court granted the set-aside order and imposed a new timetable.
32The parties did not place much emphasis on the initial period of delay in their submissions. In the circumstances of this case, I do not place much weight on the delay before the set-aside order when considering Ms. Delgado-Zurita’s request to vary the set-aside order. I am much more concerned about how the action proceeded after the court granted the set-aside order. The initial period of delay remains relevant because it affects the overall period of delay, which is relevant to the potential prejudice to the defendants’ right to a fair trial. Nevertheless, as the defendants did not oppose the setting-aside of the dismissal order I do not think it is necessary to examine carefully the period up to the dismissal order.
33That said, this is a relatively simple slip-and-fall action. Even allowing for the third party claim, the parties should have advanced this litigation much further in its first five years. At the time the action was dismissed, the plaintiff had not provided a sworn affidavit of documents and the parties had not yet started examinations for discovery. Neither the parties nor the justice system benefit from having cases linger like this. Allowing cases to drift in their early years also places significant and increasing pressure on the parties as they approach the five-year anniversary of the commencement of the action, which will result in its dismissal for delay: rule 48.14(1).
34I find that all parties bear some responsibility for the state of the action when it was first dismissed. Ms. Delgado-Zurita obtained the set-aside order without opposition. I do not place much weight on the period of delay that resulted in the dismissal order.
The delay after the set-aside order
35The January 22, 2021, set-aside order stated as follows:
THIS COURT ORDERS that the Order of the Registrar dismissing Action For Delay dated February 20, 2020, shall be set aside and the within action is hereby restored;
THIS COURT ORDERS that the parties shall adhere to the revised timetable attached hereto as Schedule "A" and that each party shall carry out the step(s) assigned to that party by the date(s) provided;
THIS COURT ORDERS that the timetable may be varied by mutual consent of all parties but any new deadline for setting the action down for trial may only be extended by court order; ….
36Paragraph 2 of the set-aside order imposed a timetable for the remaining steps in the action. There is no evidence that the court varied the timetable that Ms. Delgado-Zurita proposed. The timetable comprised five steps and then stated that the action “shall be set down for trial” by December 31, 2021.
Step one: Ms. Delgado-Zurita to deliver her sworn affidavit of documents by January 31, 2021
37The first step in the timetable required Ms. Delgado-Zurita to deliver a signed affidavit of documents on or before January 31, 2021. She did not comply with the order. Instead, she delivered a “draft” unsworn affidavit of documents on January 27, 2021. Counsel for the defendants wrote to counsel for Ms. Delgado-Zurita and asked for a sworn affidavit of documents. She did not provide one. The court had just granted Ms. Delgado-Zurita a lifeline for this action, yet she failed to meet the very first deadline. Ms. Delgado-Zurita breached the set-aside order nine days after it was granted.
38On May 5, 2021, counsel for the TTC wrote again to counsel for Ms. Delgado-Zurita to request a sworn affidavit of documents. She still did not provide one. In the almost two years since the date of the set-aside order, Ms. Delgado-Zurita has not complied with this requirement.
39In her affidavit, Ms. Delgado-Zurita does not mention, much less explain, her failure to comply with the requirement to deliver a signed affidavit of documents. In his second affidavit, Mr. Lebowitz stated that in June 2021, he had advised counsel for the defendants that “the affidavit could not be sworn due to the COVID-19 crisis and therefore the impossibility of the client to attend to our office in person in order [to] sign same.”
40I do not accept this explanation. As part of her request to set aside the order dismissing her claim, Ms. Delgado-Zurita proposed a timetable that included her delivering a sworn affidavit of documents nine days later. The plaintiff and her counsel must have turned their minds to how they would comply with the order they asked the court to impose. If they did not consider how to accomplish this simple step, they should have done so. Regardless, they had to comply with the order.
41In addition, effective August 1, 2020, Ontario permitted the remote commissioning of affidavits, including affidavits of documents: O. Reg. 431/20: Administering Oath or Declaration Remotely, enacted pursuant to the Commissioners for Taking Affidavits Act, R.S.O. 1990, c. C.17. Mr. Lebowitz’s affidavit offers no explanation for why Ms. Delgado-Zurita could not swear the affidavit remotely in January 2021 or thereafter.
42Delivering a sworn affidavit of documents in compliance with the court-ordered timetable would have been one way for Ms. Delgado-Zurita to demonstrate her intention to move forward with this action. I find that Ms. Delgado-Zurita has not adequately explained her breach of the timetable that required her to deliver a sworn affidavit of documents on or before January 31, 2021.
Step two: Examinations for discovery to be completed by August 18, 2021
43The second step in the timetable required all examinations for discovery to be completed by June 30, 2021. This step was mostly completed on time. Ms. Delgado-Zurita was examined for discovery on June 11, 2021, and the representative of the TTC was examined on June 16, 2021. The examination for discovery of the representatives of the City and the third party Guild Electric took place on August 18, 2021.
44Neither Ms. Delgado-Zurita nor her lawyer explained why the examinations of the representatives of the City or the third party did not take place in accordance with the ordered timetable. However, I do not fault Ms. Delgado-Zurita for this situation.
Step three: Answers to undertakings to be completed by August 15, 2021
45The third step in the timetable required answers or best efforts to satisfy undertakings by August 15, 2021. During his cross-examination, Mr. Lebowitz confirmed that the defendants did not have any outstanding undertakings.
46At her examination for discovery on June 11, 2021, Ms. Delgado-Zurita gave 24 undertakings. They included the following:
a. A signed affidavit of documents;
b. To provide original or native files of various photographs on which Ms. Delgado-Zurita relied, with information about the data properties, who took the photos and when they were taken, and who annotated the photos;
c. To provide particulars of certain expenses claimed as special damages;
d. To particularize the date range that Ms. Delgado-Zurita was off work due to the accident and the amount claimed for past lost income with supporting documentation;
e. To provide certain medical records from two physicians, and a chiropractor for various date ranges spanning back as early as three years before the accident;
f. To provide her employment files, Employment Insurance files, short-term disability files, long-term disability files, and WSIB files; and
g. To provide tax returns for 2010 and 2020.
47Ms. Delgado-Zurita only answered one of her 24 undertakings before the court-ordered deadline of August 15, 2021. Since that time, she has not answered any more of the undertakings. In their affidavits, neither Ms. Delgado-Zurita nor Mr. Lebowitz mentioned, much less explained, why Ms. Delgado-Zurita did not comply with the court-ordered timetable to deliver the answers to undertakings.
48Delivering her undertakings in compliance with the court-ordered timetable would have been one way for Ms. Delgado-Zurita to demonstrate her intention to move forward with this action. I find that Ms. Delgado-Zurita has not adequately explained her breach of the timetable that required her to answer her undertakings by August 15, 2021.
Step four: Discovery motions to be completed by November 30, 2021
49The fourth step in the timetable required all motions arising from discovery, undertakings, and refusals to be completed by November 30, 2021. None of the parties brought any such motions and, in that sense, the parties complied with this requirement. This, of course, does not relieve Ms. Delgado-Zurita of the obligation to fulfill her undertakings.
Step five: Mandatory mediation to be completed by November 30, 2021
50The fifth step in the timetable required the mandatory mediation to be completed on or before November 30, 2021. The parties booked the mediation to take place virtually on November 1, 2021. Counsel delivered Ms. Delgado-Zurita’s mediation brief to the defendants on October 18, 2021. All parties and counsel attended the mediation, except for Ms. Delgado-Zurita.
51According to the evidence of the City and the TTC, the parties waited a full hour for Ms. Delgado-Zurita to arrive. Mr. Lebowitz indicated that his office “had been trying to reach [Ms. Delgado-Zurita] for a week and had not received a response, and the last time anyone from his office had spoken to her was at her examination for discovery on June 11, 2021.” The mediation could not proceed without Ms. Delgado-Zurita present, and the mediator confirmed that the mediation had not taken place.
52It is important to recall that, initially, Ms. Delgado-Zurita did not file an affidavit for use on this motion. The motion was to be argued before the associate justice on the basis of two affidavits from Mr. Lebowitz. In the first affidavit, sworn November 11, 2022, he explained Ms. Delgado-Zurita’s absence as follows:
I am advised by review of the file and I verily believe that during the time in or around the Mediation which was set to proceed on November 1, 2021, the Plaintiff had a tragic death in her family. This event put the Plaintiff through grief, which prevented her from being at an ideal mental state for Mediation. Mediation proceeded and all parties, including Plaintiff's counsel were present save except, the Plaintiff herself.
53This was the first time that Ms. Delgado-Zurita or her counsel gave the defendants any explanation of her failure to attend the mandatory mediation. This evidence is entirely unsatisfactory. It contains conclusory statements and a complete absence of detail. It does not explain why Ms. Delgado-Zurita did not advise Mr. Lebowitz that she was not able to attend the mediation. It provides no medical evidence in support of the claims made on behalf of Ms. Delgado-Zurita. It does not explain why the mediation was not rescheduled for later in November or December. Not every motion to excuse delay will require first-hand evidence from the plaintiff: Slota, at para. 38. However, evidence from Ms. Delgado-Zurita on these points was, in my view, essential.
54During cross-examination, counsel candidly acknowledged how little he knew of Ms. Delgado-Zurita’s situation before the mediation:
Q. Good afternoon…I just have a few questions for you today. We won't be long. First off, I would like to know: When did your office last speak to the Plaintiff before mediation?
A. I don't know.
Q. Okay. When did you personally last speak to the Plaintiff before mediation?
A. I don't know.
Q. Did you personally speak to her in 2021?
A. I don't know.
Q. How many letters did you send to the Plaintiff before mediation?
A. We usually send one advising her of the mediation.
Q. Okay. So "usually". Did you send one?
A. I don't know. I mean, my counsel can look at the file and get back to you, if there's -- I mean, we usually write them once. Why would -- you know, there's no reason to write them twice.
55Counsel for the TTC then tried to explore what Mr. Lebowitz knew about the death in Ms. Delgado-Zurita’s family that prevented her from attending the mandatory mediation:
Q. Looking at paragraph 15 of your Affidavit, when did you find out that the Plaintiff had a tragic death in her family?
A. I believe after she didn't show up.
Q. Okay. On what date did you find out that the Plaintiff had a tragic death in her family?
A. I believe my counsel found that out. He can answer that question.
Q. Counsel, do you have an answer to that question?
MR. CHAGGAR: Well, I'm not the one on cross here, but yes, I found out -- I think it was late October to early November 2022.
Q: Okay. Who died?
MR. CHAGGAR: I don't recall. But it was either -- I believe it was either a grandmother or a grandfather.
Q: Okay.
MR. CHAGGAR: I know -- and I'll add to that. I know it was somebody in close proximity to the Plaintiff.
Q. I'm asking Mr. Lebowitz: When did that person die?
A. No idea.
Q. Okay. Do you have any documents to support the death?
A. I don't. I'm not sure what [Mr. Chaggar] has.
Q. Okay, but you're counsel of record, you swore the Affidavit. Do you have any documents to support that death?
A. I don't know.
56Counsel for the TTC asked Mr. Lebowitz what Ms. Delgado-Zurita told his office about why she was unable to attend the mediation. Mr. Lebowitz answered that Ms. Delgado-Zurita told Mr. Chaggar that “it was a terribly tragedy, and she was out of it, and she was suffering from grief, and she was in no state to mediate, and that's why she wasn't there.”
57Mr. Lebowitz also confirmed that he had not spoken to Ms. Delgado-Zurita recently. Indeed, he testified that “I haven’t spoken to her since God knows when.” Based on the evidence, I find that Ms. Delgado-Zurita did not communicate with her lawyers between June 11, 2021 (the date of her examination for discovery) and October or November 2022. This may partly explain why the undertakings were not fulfilled within the ordered timetable. It is unclear if or when Ms. Delgado-Zurita provided instructions to her counsel to bring the motion to vary the set-aside order and timetable, which became necessary after November 1, 2021, and was first booked to be heard on February 3, 2022.
58As discussed above, on December 14, 2022, Ms. Delgado-Zurita affirmed an affidavit in her own name. She explained her failure to attend the mediation as follows:
During 2021, I was having issues within my marriage. I discovered my husband's infidelity after 13 years of marriage, I confronted him about it and, as result, he became verbally abusive. This was a long-lasting situation, which led to our separation and eventual divorce. Attached hereto and marked as Exhibit "A" is a copy of my filed application for a divorce, dated October 12, 2022.
On April 23, 2021, my grandfather passed away. This tragic news put me through further emotional distress, and I became very depressed. Attached hereto and marked as Exhibit "B" is a receipt of the funeral home and ceremonial handout.
The aforementioned events contributed for me becoming severely depressed and anemic, which led me to quit my job at Sienna Nursing Home around October, 2021 to focus on my health.
Although I was aware of the mediation scheduled for November 1, 2021, I was in a poor mental state and could not make any rational decisions in regards to my case at that time, therefore I did not attend nor advised my lawyers in advance that I would not be attending it.
On November 5, 2021, I decided to leave for the Dominican Republic on attempt to get into a better emotional state. I returned to Canada on March 28, 2022. Attached hereto and marked as Exhibit "C" is a copy of my passport stamps.
It is, and has always been, my intention to proceed with this litigation.
59Following Jadid, the fact that Ms. Delgado-Zurita seeks a second lifeline justifies a heightened level of scrutiny on each factor as well as a consideration of what explanation, if any, is offered for having effectively ignored the first lifeline. I do not accept that Ms. Delgado-Zurita has provided a satisfactory explanation for her failure to attend the mandatory mediation and to advance this litigation in a timely way.
60First, Ms. Delgado-Zurita’s evidence is that her 90-year-old grandfather passed away on April 23, 2021, almost eight months before the mediation. I accept that the death of any family member, including a grandfather, is upsetting. However, without medical evidence, or a more detailed explanation made this death unusually traumatic for her, I do not accept that the grief from the death of her 90-year-old grandfather was so debilitating as to excuse Ms. Delgado-Zurita’s failure to attend the mandatory mediation eight months later. This is particularly so when Ms. Delgado-Zurita was able to attend the full-day examination for discovery on June 11, 2021, which was only seven weeks after her grandfather’s death. Counsel for Ms. Delgado-Zurita submitted that this was understandable because mediations are more stressful for people than examinations for discovery. In the absence of evidence from Ms. Delgado-Zurita on that point, I do not accept this submission, which seems counter-intuitive.
61I pause here to contrast Ms. Delgado-Zurita’s evidence related to the date of her grandfather’s death with the evidence provided by her lawyers and the submissions in her factum. The plaintiff’s factum (which was delivered before Ms. Delgado-Zurita’s affidavit) states “Over the weeks that preceded the Mediation, set to happen on November 1, 2021, the Plaintiff had a death in her family.” (emphasis added). In Mr. Lebowitz’s affidavit, he affirmed that the death occurred “during the time in or around the Mediation which was set to proceed on November 1, 2021.” I do not accept that the factum or Mr. Lebowitz’s evidence accurately reflects what happened. I do not accept that a death in April is fairly described has having occurred in the “weeks that preceded” a mediation in November.
62Second, the evidence provided by Ms. Delgado-Zurita does not satisfy me that she was not able to make rational decisions about her case or contact her lawyers to say that she would not be able to attend the mediation. If Ms. Delgado-Zurita was able to make arrangements to travel to the Dominican Republic for five months, and to fly internationally on November 5, 2021, she was probably capable of attending the mediation. I find that she was certainly capable of communicating with her counsel on or around November 1, 2021, to indicate that she did not feel that she could attend the mediation. In addition, Ms. Delgado-Zurita has provided no evidence to explain why she was unable to contact her lawyers at all until October or November 2022, which is almost a year after she missed the mediation and five or six months after she returned to Canada.
63Third, Ms. Delgado-Zurita provided no medical evidence regarding the necessity of quitting her job in October 2021, or employment documents to confirm that she did quit her job because her health would not allow her to continue to work. I also note that her lawyers did not indicate in his affidavits that her employment situation, marital status, or anemia played any role in her missing the mediation.
64The mediation was mandatory, and it needed to proceed on time so that the action could be set down for trial by the court ordered deadline of December 31, 2021. Ms. Delgado-Zurita had already received one reprieve from having her action dismissed. She needed to attend the mediation or, at a minimum, contact her lawyers in advance of the mediation, describe her situation and work diligently to reschedule the mediation for later in the month. Since the mediation was to proceed virtually, there is no evidence that she could not have participated from the Dominican Republic. None of her actions were reasonable given the deadlines imposed by the set-aside order.
65Attending the mandatory mediation in compliance with the court-ordered timetable would have been one way for Ms. Delgado-Zurita to demonstrate her intention to move forward with this action. I find that Ms. Delgado-Zurita has not adequately explained her breach of the timetable that required her to attend the mandatory mediation by November 30, 2021.
Final step: set the matter down for trial by December 31, 2021
66The final step in the timetable required Ms. Delgado-Zurita to set the action down for trial by December 31, 2021. The set-aside order allowed all other steps in the timetable to be varied on the consent of all parties. The order provided, however, that “any new deadline for setting the action down for trial may only be extended by court order.”
67From January 22, 2021, onward, Ms. Delgado-Zurita knew that she had to complete all of the steps in the timetable in order to set the matter down for trial and she knew that the final deadline could not be extended on the consent of the parties.
68The ultimate failure to set the action down for trial may be the natural consequence of Ms. Delgado-Zurita’s failure to complete the other steps in the set-aside order but does not make it more excusable.
Conclusion
69Although I have analyzed the delay after the set-aside order in segments, I must step back and consider it as a whole and contextually. The set-aside order gave Ms. Delgado-Zurita 11 months to complete the steps necessary to set the matter down for trial. She does not submit that the set-aside order imposed an unreasonable schedule.
70Looking at what Ms. Delgado-Zurita did and did not do between the date of the set-aside order and December 31, 2021, and considering her explanations for that delay, I find that Ms. Delgado-Zurita has not provided a reasonable explanation for the delay for either the overall delay or in failing to set the trial down by December 31, 2021.
Factor Two: Was the delay inadvertent?
71The second Reid factor is an assessment of whether or not the plaintiff missed the deadline through inadvertence. Here, the plaintiff or her solicitor must lead satisfactory evidence to explain that they always intended to set the action down before the deadline in the set-aside order but failed to do so through inadvertence.
72I do not accept that Ms. Delgado-Zurita always intended to set the action down within the time limit but failed to do so through inadvertence. Ms. Delgado-Zurita’s actions demonstrated a complete indifference to completing the steps necessary to comply with the deadlines in the set-aside order.
73As set out above, Ms. Delgado-Zurita did not deliver a sworn affidavit of documents in the time required by the order. She did not answer her undertakings in the time required by the order. She did not attend the mediation on the day it was scheduled or by the deadline contained in the set-aside order. In addition, she never obtained the consent of the other parties to extend the deadlines to complete these necessary steps.
74In her affidavit, Ms. Delgado-Zurita says only that “It is, and has always been, my intention to proceed with this litigation.” She did not say that she intended to comply with the deadlines contained in the set-aside order. She did not say that she failed to set the action down through inadvertence. Her actions are entirely inconsistent with her stated intentions.
75I find that Ms. Delgado-Zurita has not established on the balance of probabilities that she always intended to set the action down before the deadline in the set-aside order but failed to do so through inadvertence.
Factor Three: Did the plaintiff move promptly to vary the set-aside order?
76The third factor is to consider if Ms. Delgado-Zurita moved quickly to vary the timetable as soon as it came to her attention that she had not complied with the requirement to set the action down for trial by December 31, 2021.
77Viewed one way, Ms. Delgado-Zurita moved promptly. The unchallenged evidence of Mr. Lebowitz is that he instructed Mr. Chaggar “in or around November/December 2021 to bring a motion to revise/extend the timetable” and that “Mr. Chaggar scheduled a motion originally set for February 3, 2022.” On its face, this would seem to demonstrate that Ms. Delgado-Zurita’s counsel moved promptly. Counsel’s actions, however, undermined that good intention.
78After receiving the instructions to bring the motion, Mr. Chaggar did not so advise counsel for the defendants. He did not consult with counsel for the defendants about their availability before he unilaterally booked the motion to be heard on February 3, 2022. He did not even tell them that the motion had been booked for that date. As of January 21, 2022, counsel for Ms. Delgado-Zurita had not served a notice of motion or motion materials for the February 3 motion. I also note that, as described in paragraph [31] above, counsel for the plaintiff proceeded in this same unacceptable fashion when they booked the motion to set aside the dismissal order.
79On January 21, 2022, counsel for the defendants checked the court file and serendipitously learned that counsel for Ms. Delgado-Zurita had unilaterally booked a motion to be argued on February 3, 2022. Not surprisingly, at that late date, counsel for the defendants were not available.
80On March 3, 2022, the motion was booked for December 13, 2022. Had Mr. Chaggar consulted with counsel for the defendants in November or December 2021, it is possible that the motion could have proceeded in February 2022. The delay in hearing this motion is in large part due to the actions of counsel for the plaintiff.
81Second, counsel for the plaintiff unilaterally booked only 15 minutes for this motion to be argued. Counsel for the plaintiff did not consult with counsel for the defendants on the amount of time necessary to argue the motion. Counsel for the defendants learned that only 15 minutes had been booked when the counsel for Ms. Delgado-Zurita submitted the motion confirmation form. Fifteen minutes was obviously insufficient for this motion.
82Counsel for the plaintiff’s unilateral decision to book the motion for 15 minutes caused Associate Justice La Horey to adjourn the motion sine die and to require it to be booked as a long motion. While I don’t know exactly when an associate judge would have been available to hear a long motion, I know that I sat in Civil Practice Court on December 13, 2022, and the earliest date I could offer for a two-hour motion before a judge was December 7, 2023. But for my willingness to hear this motion outside of normal court hours on December 21, 2022, the tactical and strategic decisions of counsel for the plaintiff could have delayed this motion for another year.
83In these circumstances, I give very little weight to the prompt decision of counsel for Ms. Delgado-Zurita to initiate a motion to vary the timetable in the set-aside order. Accepting that they made this decision in November 2021, the manner in which counsel pursued this motion resulted in significant delay and could easily have resulted in it being heard in December 2023, two years after the action was to be set down for trial. Even viewing the facts of this case contextually, in these circumstances I do not place significant weight on this Reid factor.
Prejudice to the defendant
84The fourth Reid factor is prejudice to the defendant. The onus is on Ms. Delgado-Zurita to demonstrate that there would be no prejudice to the defendants if I permit the action to proceed. Delay may be inferred from the passage of time and is presumed to be prejudicial to the defendants' ability to defend the action. Ms. Delgado-Zurita may rebut this presumption through evidence regarding the availability of relevant documents and key witnesses: Tarion v. Dunhill Development, 2019 ONSC 6074, 6 C.L.R. (5th) 14, at para. 7; Jadid (ONSC), at para. 9; Wellwood v. Ontario Provincial Police, 2010 ONCA 386, 102 O.R. (3d) 555, at paras. 60 and 74.
85In Walderman v. CMC Markets Inc., 2017 ONSC 6802, 140 O.R. (3d) 144, at para. 34, rev’d on other grounds, 2018 ONCA 505, Petersen J. summarized the legal principles informing the assessment of prejudice in a case such as this one:
The Responding Defendants are under no obligation to prove actual case-specific prejudice resulting from Ms. Walderman's delay, such as the death of a key witness. The Ontario Court of Appeal has ruled that "[p]rejudice 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." Langenecker v. Sauve, 2011 ONCA 803 (Ont. C.A.), at para. 11. The Court of Appeal has also ruled 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." 1196158 Ontario Inc. v. 6274013 Canada Ltd., supra, at para. 43.
86The anchor fact in this analysis is that Ms. Delgado-Zurita’s trip and fall took place on September 10, 2013. Over nine years have passed since the event at the heart of this litigation. Given the passage of time and remembering that this is a request for a second lifeline, Ms. Delgado-Zurita must provide cogent evidence regarding the availability of relevant documents and key witnesses: Tarion, at para. 3.
87The defendants submit that the allegations against them primarily involve inspections and maintenance of a maintenance hole in September 2013. The City put it this way in its factum:
The memories of the people involved in the matter will be paramount. What maintenance and inspections were held at what time, what was visible at the time of any inspections or maintenance, who attended any inspections, any documents that may have been present on any inspections, any potential deficiencies present at the time, and any rectification work will be important. What the City, TTC or Guild Electric Limited staff may have seen, been told, or said, will be important.
The records related to any City, TTC or Guild Electric Limited inspections or work will require explanation and interpretation. Even if the authors of such documents, or people who might have had some involvement in the events at issue, can be found and are still able to give evidence, it is reasonable to infer that their memories will have faded or failed, to the prejudice of the City.
88The plaintiff’s evidence on this point is very weak. First, Ms. Delgado-Zurita does not address this issue in her affidavit. Second, the plaintiff has not even provided evidence that the documents that she undertook to produce to the defendants are still available to her. Third, in his affidavit, Mr. Lebowitz did not provide evidence in support of his opinion that the defendants would not suffer prejudice:
It is my opinion and I verily believe that no documents or witnesses have been made unavailable as a result of the time that passed between the date of the dismissal Order and the date of this motion. As a result, it is my further opinion and belief that the Defendant shall not suffer any prejudice that cannot be compensated by the awarding of costs and/or an adjournment, as directed by a trial judge, should the Order dismissing this action be set aside.
89A bald statement that there is no prejudice to the defendants does not meet the plaintiff’s obligation to prove the lack of prejudice and rebut the defendants’ allegations of prejudice: Malatesta v. 2088675 Ontario Inc., 2014 ONSC 1793, at para. 20.
90I do not accept Ms. Delgado-Zurita’s submission that the conduct of the defendants should be used to rebut the presumption of prejudice. I accept that, while the plaintiff bears primary responsibility for the conduct of the action, I may also consider the defendants’ conduct in the litigation as a relevant consideration: H.B. Fuller Co. v. Rogers, 2015 ONCA 173, 386 D.L.R. (4th) 262, at para. 23; Aguas v. Rivard Estate, 2011 ONCA 494, 107 O.R. (3d) 142, at paras. 18-19, 21.
91On the facts of this case, I find that the defendants are not responsible for very much of the delay. I agree that the defendants did not deliver their defences in a timely way at the beginning of the action. Ms. Delgado-Zurita, however, did not demand those defences. This was not a case of defendants’ obstructing the plaintiff’s desire to prosecute the action efficiently. More importantly, defence delay may well have justified the set-aside order. In my view, it should receive little weight on this motion to vary the set-aside order: Slota v. Kenora-Rainy River Districts Child and Family Services, 2019 ONSC 126, at para. 29.
92I do not accept Ms. Delgado-Zurita’s submission that the fact that the defendants did not oppose the set-aside order should somehow count against them on this motion. Parties should be free to take reasonable positions in litigation without fear that their reasonableness will be used against them in different circumstances on different facts.
93In conclusion, I find that Ms. Delgado-Zurita has not demonstrated that there would be no prejudice to the defendants if the action were permitted to proceed. I infer that the nine years that have passed will be prejudicial to the defendants’ ability to defend the action. Occurrence reports will be no substitute for clear recollection of things done and said in September 2013. Ms. Delgado-Zurita has not rebutted this presumption through evidence regarding the availability of relevant documents and key witnesses. I conclude that the passage of time has compromised the defendants’ right to a fair hearing.
Conclusion
94I accept that Ms. Delgado-Zurita wants this case to continue. It is always desirable to determine actions on their merits: rule 1.04(1). However, I must balance that principle with the principle that the public interest is served by enforcing procedural rules that enforce the timely and efficient resolution of disputes: 1196158 Ontario Inc., at para. 18; Jadid (ONCA), at para. 12.
95The Reid factors are not to be applied mechanically. No one factor is to be given special priority over any other. I am to exercise my discretion mindful of all the circumstances of the case. The Reid factors do provide a structured approach for the exercise of my discretion, even if it is not a formula.
96I find that Ms. Delgado-Zurita has not adequately explained her failure to comply with the timetable imposed by the court order that set aside the dismissal order. She was not taking reasonable steps toward setting the action down for trial by December 31, 2021, and she did not satisfactorily explain her reasons for not completing those tasks. I do not accept that Ms. Delgado-Zurita’s failure to meet the deadline was inadvertent. Although counsel for the plaintiff moved promptly to extend the court-ordered timeline, their decisions resulted in the motion not being heard before December 2022 and it might well have been heard in December 2023. Finally, Ms. Delgado-Zurita has not persuaded me that the defendants’ rights to a fair trial have not been compromised. Considering and weighing all relevant factors to determine the order that is just in the circumstances of the particular case, I dismiss both the plaintiff’s motion and the action.
Costs
97If the parties are not able to resolve costs of this action, each defendant may each email its costs submission of no more than three double-spaced pages to my judicial assistant on or before January 10, 2023. Ms. Delgado-Zurita may deliver her responding submission of no more than three double-spaced pages on or before January 17, 2023. No reply submissions are to be delivered without leave.
Robert Centa J.
Date: January 3, 2023