COURT FILE NO.: CV-14-00496872
MOTION HEARD: 2023-04-22
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: CANDOO EXCAVATING SERVICES LTD. et al, Plaintiffs
AND:
IPEX INC. et al, Defendants
BEFORE: ASSOCIATE JUSTICE R. FRANK
APPEARANCES:
D. Silver and R. Yehia for the plaintiffs
S. Hennig for Wolseley Canada Inc.
E. Adams for IPEX Inc.
HEARD: 22 April 2023
REASONS FOR DECISION
[1] This is a motion by the Plaintiffs, CanDoo Excavating Services Ltd. (“CanDoo”) and The Guarantee Company of North America (“GCNA”), to vary the timetable orders of Associate Justice Graham (then titled Master Graham) dated January 18, 2019 (the “Timetable Orders”) to extend the set down date for trial. The defendants, Wolseley Canada Inc. (“Wolseley”) and IPEX Inc. (“IPEX”), oppose the motion.
[2] For the reasons that follow the motion is dismissed.
A. BACKGROUND
Nature of the Action
[3] This action relates to leaks discovered in a water pipeline in Newell County, Alberta. In 2010, CanDoo entered into a contract (the “Contract”) with Newell Regional Services Corporation (“Newell”) for excavation and pipe installation work in Newell County (the “Project”).
[4] GCNA issued a performance bond in relation to the Project (the “Performance Bond”). The Performance Bond guaranteed to Newell that, subject to the terms and conditions of the Performance Bond, CanDoo would perform its obligations as required under the Contract. In the event CanDoo failed to perform its obligations under the Contract, GCNA was required under the Performance Bond to take steps, up to and including completion of the Contract.
[5] The work under the Contract involved the installation of various pipes and gaskets (collectively, the “Pipes”) designed and manufactured by the defendant IPEX Inc. (“IPEX”). These Pipes were distributed by the defendant Wolseley.
[6] After completion of the Project, leaks were discovered in the section of the pipeline where the Pipes were installed. The plaintiffs allege that these leaks were caused by manufacturing defects for which the defendants are responsible. As a result, the plaintiffs claim to have suffered a loss of $5,284,458 to rectify and replace the Pipes, and they commenced this action against the defendants to recover that amount.
[7] IPEX and Wolseley defended the action, pleading that any leaks were due to the negligence of CanDoo. Wolseley issued a third party claim (the “Third Party Claim”) for contribution and indemnity against the Project engineer, MPE Engineering Ltd. (“MPE”).
Procedural History
(i) Pleadings
[8] The plaintiffs, CanDoo and GCNA, commenced this action by statement of claim issued on January 22, 2014. Borden Ladner Gervais LLP (“BLG”) has been plaintiffs’ counsel of record from the inception of this action to date.
[9] Wolseley delivered a statement of defence and crossclaim on June 12, 2014. IPEX delivered a statement of defence and crossclaim on June 20, 2014. Wolseley issued the Third Party Claim against MPE on June 20, 2014. MPE delivered a third party defence on March 25, 2015 after an unsuccessful motion to stay the third party claim.
(ii) Examinations for discovery
[10] Affidavits of Documents were exchanged by all parties in 2015. The plaintiffs delivered a joint affidavit of documents sworn by Edouard Chassé, who was not an employee of either plaintiff but was a claims adjuster retained by GCNA.
[11] Examinations for discovery of the parties were conducted between October 1, 2015 and April 20, 2017. Examinations for discovery of GCNA, IPEX, and Wolseley were conducted between October 1, 2015 and November 5, 2015. The examinations for discovery of the defendants were completed in the fall of 2015, but Mr. Chassé’s examination was not completed when the defendants took the position that he lacked sufficient knowledge of the matters at issue and that there were deficiencies in the plaintiffs’ productions.
[12] The defendants sought to examine a representative of CanDoo. When the plaintiffs refused to produce a representative of CanDoo, IPEX successfully moved to compel Brian Kalmring, the principal of CanDoo, to attend an examination for discovery in April 2017.
[13] The examination for discovery of Mr. Kalmring on behalf of CanDoo was conducted on April 19 and 20, 2017. Mr. Kalmring’s examination for discovery was not completed, and a significant number of undertakings were given, including with respect to the review and production of CanDoo’s physical file for the Project, searches of four relevant e-mail accounts, production of the minutes of the weekly Project meetings, and production of the notes of Joy Kalmring, CanDoo’s office manager, regarding the Project.
[14] At the conclusion of Mr. Kalmring’s examination on April 20, 2017, all counsel agreed that he would return at a later date to answer questions arising from further document production.
(iii) Steps following the examinations for discovery
[15] In order to complete Mr. Chassé’s and Mr. Kalmring’s examinations for discovery, it was necessary for the plaintiffs to answer their undertakings and make additional productions.
[16] The evidence indicates that plaintiffs’ counsel was in contact with Mr. and Mrs. Kalmring of CanDoo with respect to the undertakings and production arising from the plaintiffs’ examinations for discovery. The chronology of events with respect to the steps taken by the plaintiffs’ and their counsel includes the following:
(a) In July 2017, Mr. G.L. Sonny Ingram, counsel for the plaintiffs with primary carriage of the file, received the physical Project file from CanDoo, which consisted of four bankers’ boxes of documents.[^1]
(b) In July 2018, Mr. Ingram provided CanDoo with a copy of the transcript from Mr. Kalmring’s examination, together with an undertakings chart listing the questions that had to be answered by Candoo.
(c) In December 2018, the Kalmrings emailed Mr. Ingram to apologize for their delay in providing answers to the undertakings. The email advises that that they had been “very busy [in 2018] and just haven’t Had (sic) the opportunity to complete” the undertakings, “We are about 85% complete”, and that they (the Kalmrings) would be leaving for the U.S. for “a couple of months and will put this as our Priority (sic) and have to you in April [2019].”
(iv) The Timetable Orders
[17] The evidence indicates that there was limited contact between counsel following the April 2017 examinations. Then, in January 2019, Mr. Ingram requested that the other parties agree to a timetable in light of the impending deadline for dismissal of this action for delay under Rule 48.14.
[18] The parties agreed to the Timetable Orders that provided for the dismissal of the action with costs if it was not set down for trial by April 30, 2020, and an order with the same timelines was made with respect to the Third Party Claim.
[19] In providing IPEX’s consent to the Timetable Orders, counsel for IPEX advised Mr. Ingram that IPEX would consent to the timetable but expected that the plaintiffs would advance the claim by delivering key documents in a timely fashion. At the same time, Mr. Ingram raised the possibility of an informal settlement meeting or a mediation, which he had raised previously. IPEX’s counsel advised that IPEX would not commit to such a process unless and until the plaintiffs produced the relevant documentation.
[20] On January 18, 2019, Associate Justice Graham (then titled Master Graham), signed the Timetable Orders for the completion of various steps in the action and Third Party Claim including examinations for discovery, answers to undertakings, motions, mediation, and setting down the action for trial. The Timetable Orders provided that the deadline for completing examinations for discovery was July 31, 2019 and the deadline for setting the action for trial was April 30, 2020. This did not occur.
[21] Plaintiffs’ counsel did not advise the defendants that the Timetable Orders had been taken out or provide a copy to counsel for the other parties.
(v) Request to vary the Timetable Orders and scheduling of this motion
[22] Following the Timetable Orders, CanDoo provided plaintiffs’ counsel with draft answers to a “first tranche” of undertakings in May 2019.
[23] For the period from May 2019 through mid-March 2020, there is no evidence of any communications between plaintiffs’ counsel and the Kalmrings about completing the answers to undertakings.
[24] Discoveries were not completed by July 31, 2019 as required by the Timetable Orders.
[25] On September 3, 2019, counsel for MPE asked plaintiffs’ counsel to “advise of your client’s intentions”, given that the action had been inactive since April 2017. When he did not receive a response, he wrote again on September 22, 2019 to advise that he anticipated instructions not to consent to any further extensions of the schedule. Mr. Ingram responded that day, stating that he had been away following the birth of his first child and that he would contact the defendants shortly to schedule the remaining discoveries and mediation. That did not happen. Counsel for the defendants were copied on the September 3 and September 22, 2019 correspondence between counsel for the plaintiffs and counsel for MPE.
[26] On March 16, 2020, plaintiffs’ counsel emailed Mr. Kalmring additional questions to answer from the examinations for discovery, to which the Kalmrings did not respond until sometime after May 12, 2020. There were a handful of further exchanges in 2020 between plaintiffs’ counsel and the Kalmrings about undertakings.
[27] On April 25, 2020, Ms. Delemere, an associate lawyer at BLG who worked on this matter with Mr. Ingram, emailed Mr. Ingram. An unredacted portion of the email asks: “Have the parties agreed to a revised timetable for this action? (Recall that the deadline to set the action down for trial under the existing timetable is April 30, 2020.)”.
[28] Defendants’ counsel were not contacted by plaintiffs’ counsel between September 22, 2019 and April 29, 2020. On April 29, 2020, Mr. Ingram reached out to defendants’ counsel to propose a further extension of the timetable.
[29] After some discussion between counsel about a potential variation of the timetable, Wolseley’s counsel advised Mr. Ingram on May 19, 2020 that Wolseley would not consent to an extension of the timetable.
[30] On February 25, 2021, the plaintiffs served their motion to vary the Timetable Orders. The motion record included an affidavit sworn by Mr. Ingram (“Ingram Affidavit #1”). The motion was brought as a short motion, returnable on August 16, 2021. The defendants delivered their responding materials on May 31, 2021.
[31] On July 8, 2021, plaintiffs’ counsel advised that they would be delivering a supplementary motion record and rescheduling the motion as a long motion. The August 16, 2021 return date for the motion was vacated at the request of the plaintiffs. On August 8, 2021, the plaintiffs delivered a second affidavit sworn by Mr. Ingram (“Ingram Affidavit #2”). On the same day, the plaintiffs delivered their answers to the undertakings of Mr. Chassé and Mr. Kalmring, including 1,000 pages of productions.
[32] At an August 18, 2021 case conference, the parties sought direction with respect to the rescheduling of the motion. The motion was ultimately rescheduled as a short motion returnable on May 20, 2022.
[33] On April 4, 2022, the plaintiffs delivered a third affidavit sworn by Mr. Ingram (“Ingram Affidavit #3”), a supplementary affidavit of documents including 140 pages of productions relating to damages, and the plaintiffs’ expert report.
[34] On May 5, 2022, Mr. Ingram was cross-examined on his three affidavits. On May 12, 2022, the plaintiffs provided their answers to questions taken under advisement or refused at the May 5, 2022 cross-examination of Mr. Ingram. The answers disclosed that the plaintiffs’ lawyers did not inform their clients of any litigation deadlines, did not have instructions to obtain the Timetable Orders in January 2019, did not advise their clients of the deadlines under the Timetable Orders, did not have instructions to propose a new timetable in April 2020, and did not obtain instructions from CanDoo before bringing this motion.
B. ISSUES
[35] The issue on this motion is whether the court should exercise its discretion to vary the Timetable Orders to extend the time to set this action down for trial.
C. LAW AND ANALYSIS
(i) Applicable test and principles with respect to a motion to vary a timetable order
[36] On a motion to vary a timetable order, the court will consider the well-established four factors identified in Reid v. Dow Corning Corp.,[^2] which are summarized as follows:
(1) Explanation of the Litigation Delay: The court will consider the length of the litigation delay and whether the plaintiff has provided an adequate explanation for it.
(2) Inadvertence in Missing the Deadline: The plaintiff must lead satisfactory evidence of an intention to move the action toward trial and that the failure to meet the mandated time limits was due to inadvertence.
(3) The Motion is Brought Promptly: The plaintiff must demonstrate that the motion was brought promptly.
(4) No Prejudice to the Defendant: The plaintiff must show that the defendant will not be prejudiced in presenting its case at trial as a result of the delay.
[37] The Court of Appeal has explained that it is not necessary to satisfy each part of the Reid test and that a contextual approach is required:
More importantly, I do not agree that the case law reviewed in Reid, supra, yields the proposition that an appellant must satisfy each relevant criterion in order to have the registrar’s order set aside. None of the cases referred to say so expressly and several proceed on a more contextual basis. For example, in Steele v. Ottawa-Carleton (Regional Municipality), [1998] O.J. No. 3154 (Gen. Div.) Master Beaudoin at para. 17, described the guiding principle in deciding whether to set aside a Rule 48.14 dismissal by the registrar as follows:
‘...Ultimately, the Court will exercise its discretion upon a consideration of the relevant factors and will attempt to balance the interests of the parties.’[^3]
[38] The contextual approach requires that “…all of the circumstances of the case must be considered in order to arrive at a just result”.[^4] Applying a contextual analysis, the court must determine “what order would do justice in all of the circumstances”.[^5]
[39] Further, in motions of this sort, the Court of Appeal has recognized that it is necessary to balance two fundamental principles, explaining as follows:
[17] 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).
[18] 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.[^6]
[40] In Fuller, the Court of Appeal explained the required balancing as follows:
[25] The factors that guide the court’s choice between ending the plaintiff’s action before trial and forcing the opposite party to defend the case despite the delay require a judge to resolve the tension between two underlying policies. The first is that civil actions should be decided on their merits. The second is that civil actions should be resolved in a timely and efficient manner in order to maintain public confidence in the administration of justice: Kara, at para. 9; Hamilton (City), at paras. 20- 21; Marché, at para. 25.[^7]
[41] In Jadid, the plaintiff brought a motion to vary an order providing a deadline for the plaintiff to set the action down for trial. The plaintiff had not complied with the order. Dunphy J. applied the Reid criteria subject to the following additional comments:
61 Firstly, the totality of delay in prosecuting the action both before the first lifeline granted on February 17, 2012 and since should be separately considered and weighed. The order of February 17, 2012 did not absolve the plaintiff of prior delay. The explanation for the total delay and the explanation for failing to meet the timelines established by way of a lifeline in the order of February 17, 2012 must be separately considered.
62 Secondly, there is no absolute priority to be given to any single one of the four criterion over the others — the test is conjunctive and failure to satisfy any of the criteria may, in appropriate circumstances, be decisive. By the same token, the review of the facts is contextual and should not be driven by overweighting one factor to the exclusion of the others — it is not an all or nothing analysis. A failing grade in one test does not end the matter.
63 Thirdly, the onus is not upon the defendant to establish prejudice on this motion and, indeed, prejudice may be inferred from the passage of time.
64 Finally, the fact that this is a second lifeline being sought justifies a heightened level of scrutiny upon each of the four factors as well as a consideration of what explanation, if any, is offered for having effectively ignored the first lifeline.
[42] The following additional principles have been enunciated in motions such as this:
(a) The court’s preference for deciding matters on their merits rather than terminating rights on procedural grounds;[^8]
(b) In some cases, the court has noted that prejudice is a “key consideration”.[^9] In other cases, the court has noted that although lack of prejudice is not a determinative factor, the absence of prejudice should not too easily be swept aside in the name of efficiency and finality.[^10]
(c) It is not only the plaintiff’s conduct that must be considered. While the plaintiff bears primary responsibility for the conduct of the action, the defendant’s conduct in the litigation is a relevant circumstance.[^11]
(d) The Court should look primarily at the rights of litigants and not the conduct of counsel. A party’s rights should not be impaired due to inadvertence or mistakes on the part of counsel.[^12]
(e) Where an action is ready for trial, it would be “punitive rather than efficient” not to allow it to proceed.[^13]
(ii) The Reid factors
1. Length of the delay and whether the plaintiff provided an acceptable explanation for the delay
[43] In considering the delay, the court considers the length of the delay and the plaintiffs’ explanation, and then determines whether the explanation is acceptable or adequate.
[44] Given that the plaintiff has already received a prior lifeline in the form of the Timetable Orders, there are two delays to be explained by the plaintiffs. As Dunphy J. noted in Jadid:
66 The first Reid factor is explanation for the delay. In this context, there are two delays to be explained. The first is the overall delay — the fact that it has taken the plaintiff almost ten years (and counting) since the accident and eight years since the claim was commenced to bring this case on to the trial list must be looked at. The second is the delay in complying with the order of February 17, 2012. I consider each separately.[^14]
[45] With respect to the first delay to be considered, the overall delay, the claims in this action relate to events that occurred between 2010 and 2012. Even counting from the date that the plaintiffs served their initial motion record in February 2021, that is an overall delay of 9 to 11 years. As noted below, however, that delay was further exacerbated by the plaintiffs’ delay in bringing this motion and their conduct on this motion, which included delivery of two supplementary motion records, both of which caused adjournments of the motion and additional delay in excess of 2 years. Accounting for those further delays, the overall delay would be 11 to 13 years.[^15] The second delay to be considered is the plaintiffs’ delay from the Timetable Orders made in January 2019 to the hearing of the motion.[^16] That is a delay of nearly 4 years.
[46] In this case, the relevant and material delays began following the examination for discovery of Mr. Kalmring, the CanDoo representative who was examined for discovery on April 19 and 20, 2017.[^17] From that point forward, the action was essentially stalled as the plaintiffs failed to answer their undertakings or make the required supplementary production.
[47] The plaintiffs submit that the litigation delay did not result from a deliberate decision by them not to move the action forward to trial. Rather, they submit that they always intended to proceed with the action to trial. In this regard, they submit that each of CanDoo and GCNA followed up with Mr. Ingram with respect to steps to move the action forward. Mr. Ingram’s evidence is that it was his inadvertence that led to the delay. More specifically, the plaintiffs submit that the delay is adequately explained for reasons that include the following:
(a) the need to address voluminous undertakings from the plaintiffs’ examinations for discovery;
(b) delays occasioned by Mr. Ingram in the timing of delivery of documents and transcripts to Mr. and Mrs. Kalmring;
(c) difficulty in obtaining an expert report;
(d) the refusal by the defendants to participate in a mediation;
(e) personal challenges for the plaintiffs’ counsel, which were exacerbated by the COVID-19 pandemic.
[48] The defendants submit that the court should reject the plaintiffs’ explanations for the litigation delay and failure to comply with the Timetable Orders. The defendants point to gaps in the explanations and evidence. They argue that the plaintiffs had a responsibility to supervise their counsel that they did not meet. The defendants also dispute that their conduct has contributed to the delay or that it is a basis for granting an extension to the existing timetable.
[49] In my view, the plaintiffs’ explanations are not adequate both with respect to the overall delay and with respect to the delay since the Timetable Orders were made. There are significant gaps in the plaintiffs’ explanations, or the explanations are based on bald or vague statements, or statements that are unsupported by or inconsistent with other evidence. I am also concerned with the nature of the evidence relied on by the plaintiffs, including the significant redactions that remain in place with respect documents relied on by the plaintiffs.
[50] More specifically, for the period from April 2017 through July 2018,[^18] the only explanation given for the delay is that Mr. Ingram did not provide the Kalmring’s with a copy of the transcript from Mr. Kalmring’s examination together with an undertakings chart until July 25, 2018, due to “competing priorities in [his] practice”. This was a 15 month delay for which Mr. Ingram “accept[s] responsibility”. This neglect is not an adequate explanation for the failure to complete a straightforward task.
[51] For the period from July 2018 through May 2019, the only explanation given for the delay in answering the undertakings is that the plaintiffs’ counsel were waiting for answers to undertakings from the Kalmrings.[^19] However, as noted, the evidence shows that in December 2018, the Kalmrings advised that they had had a “very busy this year” and had not had the “opportunity to complete” the answers to undertakings. It also shows that the Kalmrings would be leaving for the U.S. for a couple of months and would only be able to provide the answers on their return, in April 2019. The Kalmrings only provided their draft answers to a “first tranche” of undertakings to counsel in May 2019. This demonstrates that the plaintiff, CanDoo, did not prioritize this action and chose instead to focus on competing business obligations and travel to the U.S. rather than this action. It is also demonstrates that CanDoo put the matter in abeyance for the winter. The explanation for the delay for the period from July 2018 through May 2019 is not adequate.
[52] Turning to the period from May 2019 through mid-March 2020, there is no evidence of any communications between CanDoo and plaintiffs’ counsel with respect to completing the answers to undertakings or making further productions. The evidence also shows that on March 16, 2020, plaintiffs’ counsel sent an email to CanDoo with additional questions to answer from the discoveries. CanDoo did not respond until sometime after May 12, 2020. As such, there is no adequate explanation for the period from May 2019 to May 2020.[^20]
[53] The plaintiffs also submit that the delays can be partially explained by the difficulties the plaintiff’s expert had in obtaining documents from his former employer. However, the evidence indicates that such difficulties related to the period from April 30, 2019 through June 7, 2019. There is no evidence of any work on an expert report prior to April 2019 or that the difficulties in obtaining the documents continued any longer than this two month period.
[54] The answers to the April 2017 undertakings were not served on the defendants until August 2021. That was at least 9 years after the events in question, more than 4 years from the April 2017 examinations, more than 2.5 years after the Timetable Orders were made, and more than 2 years past the July 31, 2019 deadline provided in the Timetable Orders for completion of discoveries (without even taking into account that the defendants have the right to continue the plaintiffs’ examinations in connection with the answers to undertakings and supplementary productions).
[55] In considering the overall delay and the delay following the Timetable Orders, I am mindful of the relevant context. For example, the plaintiffs submit that the context includes the complexity of the action in respect of which the required document review was “labour-intensive”. I do not accept this argument. Given that much of the document review and production related to documents contained in just four bankers’ boxes, I do not agree that the task was so onerous that it was reasonable for the plaintiffs to have taken from July 2017 to August 2021 to complete it.
[56] Another explanation for the delay asserted by the plaintiffs is based on the personal challenges faced by Mr. Ingram and Ms. Delemere, one of the associate lawyers at BLG who worked on this matter on behalf of the plaintiffs. In this regard, the plaintiffs submit that Mr. Ingram’s practice was significantly impacted by events throughout 2019 and 2020, including by the birth of his first child in August 2019, as well as the child-care commitments of Ms. Delemere, who subsequently went on maternity leave in July 2020. The plaintiffs submit that the COVID-19 pandemic exacerbated these lawyers’ problems because from mid‑March 2020 until late summer 2020, Mr. Ingram and Ms. Delemere were both working from home full-time while tending to young children, without childcare. They argue that the explanation for the delay should be considered in light of Mr. Ingram’s evidence that the increased work and personal demands on him as a result of the COVID-19 pandemic were insurmountable and that his mental wellbeing deteriorated, which he did not disclose to others.
[57] In my view, the personal difficulties faced by Mr. Ingram and Ms. Delemere do not provide an adequate explanation for the plaintiffs’ delay in complying with the Timetable Orders for a number of reasons. First, although Mr. Ingram’s evidence is that the time after the birth of his son in August 2019 was “very busy and challenging”, by that time the July 31, 2019 deadline for completing examinations for discovery under the Timetable Orders had already passed. I also note that Mr. Ingram continued his professional activities over this period, including arguing an appeal for GCNA in another action and bringing an application for leave to appeal to the Supreme Court of Canada on behalf of GCNA in yet another action.
[58] Relying on Lee v. Kim and Facchini v. Rosen,[^21] the plaintiffs submit that it does not follow that because a lawyer facing challenges is able to do some things, the lawyer should have been able to do all things. However, the present action by the plaintiffs is not a matter that is being attended to by a sole practitioner as was the case in Facchini v. Rosen, nor is it similar to the situation in Lee v. Kim where the junior lawyer was “dealing with medical issues that resulted in him having undergone surgery” and where the “firm, generally, was dealing with practice management issues that curtailed its ability to be more engaged on behalf of the plaintiff”.[^22] In this case, there is no equivalent evidence of incapacity of the all of the plaintiffs’ lawyers and the law firm, generally. In this regard, I note that the plaintiffs have failed to provide any explanation as to why none of the other BLG lawyers moved the matter forward in 2019, including Ms. Delemere, a senior associate who was working on this matter in 2019 and 2020 and aware of the Timetable Order, or Mr. Shaban, the partner who has been counsel of record in this action since 2013. There is no evidence from either of them to explain their own actions during this time. The same is the case for Mr. Yehia who appeared as counsel at the discoveries of a representative of GCNA in 2015 and signed the certificate of solicitor with respect to the plaintiffs’ affidavit of documents.
[59] The plaintiffs also assert that the impact of the COVID-19 pandemic on Mr. Ingram is, in part, an explanation for the delay. This is also not a satisfactory explanation. By March 2020, the plaintiffs had already failed to complete several steps required under the Timetable Orders and there was no possibility the plaintiffs would complete the necessary steps in time to set the action down for trial by the April 30, 2020 deadline under the Timetable Orders. Similarly, the evidence from Mr. Ingram relating to the challenges Ms. Delemere faced relates to the period from March 2020 to late summer 2020, which post-dates the plaintiffs’ failure to meet the deadline under the Timetable Orders to set the action for trial. I also note that there is no direct evidence from Ms. Delemere on this point.
[60] The plaintiffs acknowledge that a plaintiff has the primary responsibility to move an action forward but submit that a defendant’s overall conduct is a relevant consideration in the assessment of litigation delay.[^23] In this regard, they argue that the defendants in this action did not “play their part” in moving the action forward because they failed to answer their undertakings from their examinations in October and November 2015, and therefore they have not complied with the Timetable Orders. They submit that it would be unfair to penalize the plaintiffs for failing to comply with the Timetable Orders when the defendants have also failed to comply their timetable obligations. They also submit that, in an overall contextual analysis of the justice of the case, the court should consider the defendants’ acquiescence in the slow progress of the litigation.[^24] In summary, the plaintiffs submit that it does not lie in mouth of the defendants to complain about the pace of litigation. I do not agree.
[61] The responsibility to move the action forward lays with the plaintiffs, and the plaintiffs must bear the consequences of a dilatory regard for the pace of the litigation.[^25] As Sharpe J.A. wrote in 1196158 Ontario:
[30] In this case, however, the defendants did nothing to resist any attempt by the plaintiff to advance the action. They cannot be accused of “lying in the weeds” and hoping to gain a tactical advantage. Failing any initiative on the part of the plaintiff, to require the defendants to spend time and money to prepare for a case that, from all appearances, was dead on the vine would, in my view, be to impose an unnecessary and unreasonable burden.[^26]
[62] The context here is that the defendants had relatively few undertakings from their examinations for discovery and the plaintiffs never followed up on them or suggested that the defendants needed to answer them before the completion of discoveries. In the circumstances of this action, the defendants were not merely lying in the weeds and being unduly passive. The lifeline that the plaintiffs had obtained in the form of the consent Timetable Orders was obtained on the basis that IPEX expected that the plaintiffs would advance the claim by delivering key documents in a timely fashion. There was no request from the plaintiffs asking the defendants to answer their undertakings before the completion discoveries. The defendants had participated in the discovery process appropriately. Based on the evidence in the record for this motion, the clear and obvious roadblock to advancing the action was the plaintiffs’ failure to answer their undertakings. This is evident in the correspondence between counsel. A September 3, 2019 email from counsel for MPE to Mr. Ingram, which was copied to counsel for all parties in the main action, provided as follows:
… we did not receive any issued timetable orders. Even if ones [sic] was issued, they called for examinations to be completed by July 31, 2019. As far as I can tell, this action, which is close to 5 years old, has been inactive since the last discovery examinations took place in April 2017. Sonny, can you please advise of your client’s intentions.
[63] When Mr. Ingram did not respond, counsel for MPE emailed Mr. Ingram again on September 22, 2019 as follows: “It appears the matter is delayed without explanation, and we anticipate instructions not to consent to any further extensions of the schedule.” Counsel for the plaintiffs responded the same day as follows: “I have been out of the office recently with the birth of our first child. We will be contacting counsel for the defendants shortly to schedule the remaining discoveries and mediation.” However, the next contact from Mr. Ingram was not until April 29, 2020 at which time Mr. Ingram requested the defendants’ consent to an extension of the timetable.
[64] I also do not accept the plaintiffs’ submission that the delay can be partially explained by the defendants’ refusal to agree to mediation. Although Mr. Ingram made a few informal suggestions to counsel for IPEX that the parties should mediate before completing discoveries, he did not follow up on those suggestions. In any event, counsel for IPEX indicated that IPEX was not prepared to mediate given that the plaintiffs had not provided sufficient documentation supporting their damages or liability positions.
[65] In summary, I find that the defendants’ conduct in no way blocked the action from proceeding. Having obtained the defendants’ consent to the Timetable Orders, which were a lifeline given to the plaintiffs, the plaintiffs failed entirely to meet the deadlines they selected. In these circumstances, the defendants should not be faulted for suspending activity and avoiding further costs with respect to an action that appeared to be “dead on the vine” both before and after the Timetable Orders.
[66] Finally, in assessing the delay factor, I am mindful that the plaintiffs rely on certain email correspondence between BLG and CanDoo in support of their explanation for the delay. When this correspondence was initially produced in Ingram Affidavit #2, it was heavily redacted, essentially showing little more than the existence of communications between BLG and CanDoo with respect to the plaintiffs’ undertakings. The defendants protested about the redactions, taking the position that the plaintiffs had waived privilege with respect to communications relevant to the delay issue and the process for answering the undertakings. They sought unredacted copies of the correspondence.
[67] Ingram Affidavit #3 included less-heavily redacted copies of correspondence between plaintiffs’ counsel and the plaintiffs. Based on my review of a limited number of emails with respect to which only certain parts of the redactions were removed, it appears that the plaintiffs’ disclosure was improperly selective and an effort to cherry‑pick parts of email correspondence that was most favourable, or least harmful, to the plaintiffs’ position on this motion. One very simple example is a December 18, 2018 email from CanDoo to Mr. Ingram. In its currently produced form, the email includes the following:
Regarding the deposition questions, we apologize
For the delay, we have been
Very busy this year and just haven’t
Had the opportunity to complete.
We are about 85% complete [REDACTION REMAINS]
We haven’t forgotten you by any means, we will be leaving
For the states for a couple of months and will put this as our
Priority and have to you in April. Will that be acceptable?
[68] Inexplicably, all of this was initially redacted by the plaintiffs in the copy of the same email that is attached to Ingram Affidavit #2 in a much more heavily redacted form. There is no reasonable basis for the plaintiffs to have redacted this information which goes to the heart of the issues relating to their asserted explanation for the delay, namely the steps involved in the completion of answers to undertakings. In asserting this position and relying on correspondence in support of it, the plaintiffs waived privilege with respect to the communications related to those steps.
[69] With respect to the email excerpt described above, the redaction had removed evidence showing that at least part of the reason for the delay was that the plaintiffs were “busy” in 2018 and would be away in the U.S. for the first four months of 2019. This information is inconsistent with the plaintiffs’ argument that the delay is solely the result of Mr. Ingram’s failures rather than something to which the plaintiffs contributed. It undermines the plaintiffs’ argument that although there has been delay, it is the result of the conduct of counsel that should not be visited on the client.
[70] Taking the evidence as a whole (and considering the serious concerns the court has about the information that remains redacted), I find that the delay was caused by a combination of neglect, disinterest or lack of diligence by the plaintiffs and their counsel. If necessary, I would draw a negative inference from the significant remaining redactions – but even without doing so, I find that taking the evidence as a whole demonstrates that CanDoo was a material contributor to the delay and that CanDoo has not provided an adequate explanation for its contribution to the delay.
[71] In the result, I find that the plaintiffs have not provided an adequate explanation for either the overall delay in prosecuting the action, nor the delay in complying with the Timetable Orders. The first Reid criterion has not been satisfied.
2. Was the failure to meet the mandated time limits was due to inadvertence?
[72] The plaintiffs submit that there is “uncontradicted evidence” of the inadvertence that led to the delay in this action. The plaintiffs also submit that the CanDoo correspondence with plaintiffs’ counsel regarding completion of the undertakings and the GCNA correspondence seeking periodic updates from BLG demonstrates the plaintiffs’ clear intention to bring the action to trial. The defendants submit that the delay is not the result of inadvertence but of conscious neglect of the action by the plaintiffs and their counsel over an extended period.
[73] The plaintiffs submit that there is no evidence that any litigation delay resulted from a deliberate decision by the plaintiffs not to move the action forward to trial. In their factum, the plaintiffs argue that Mr. Ingram occasioned delays in answering the undertakings and neglected to provide the Kalmrings with copies of the April 2017 discovery transcripts until July 25, 2018. They submit that this inadvertence led to delays in the prosecution of this action. The plaintiffs also submit that they were not advised of the existing timetable deadlines, including the deadline to set the action down for trial, and that it would therefore be unjust in the circumstances for the plaintiffs to lose their rights.
[74] I recognize that even in situations where counsel’s conduct can be characterized as negligent, the court is still entitled to find that the conduct was not deliberate or intentional.[^27] Further, I recognize that inadvertence is distinguished from counsel putting a file into abeyance or forming a deliberate intention not to proceed.[^28] However, I do not accept the plaintiffs’ argument that Mr. Ingram’s failures to complete tasks and his neglect of the file demonstrate inadvertence. Mr. Ingram’s affidavit evidence does not describe what the inadvertence was or explain how or why it occurred.[^29] In order to find that there was inadvertence, the court must be satisfied that there are sufficiently articulated reasons for the inadvertence, as opposed to bald claims of inadvertence, particularly given that a first lifeline had already been provided to the plaintiffs.[^30] As noted in Jadid, “the fact that this is a second lifeline being sought justifies a heightened level of scrutiny upon each of the four [Reid] factors”.[^31]
[75] In my view, Mr. Ingram’s evidence is nothing more than a bald claim of inadvertence that he missed the deadlines under the Timetable Orders. Where counsel is aware of a court-ordered deadline and takes no reasonable steps to meet the deadline or advance the litigation, it is not enough to merely state as a conclusion that the deadline was missed through inadvertence. For example, the circumstances of this action are distinguishable from those in Kamalie, which is relied on by the plaintiffs. In Kamalie, the inadvertence was explained by the departure of a junior associate to whom the tasks of completing discoveries and setting the action down for trial had been delegated but not uncompleted due to the associate’s departure. In this case, there is no such explanation provided. In these circumstances, I find that the failure to comply with the deadlines in the Timetable Orders, including the deadlines for completing discovery and the setting of the action down for trial, were not the result of the lawyer’s inadvertence.[^32]
[76] In the result, I find that this is not a case where the plaintiffs’ failure to meet the mandated time limit under the Timetable Orders and set the action down for trial by April 30, 2020 can be considered as mere inadvertence.
3. Was the motion brought promptly?
[77] The plaintiffs argue that: (1) at the time the deadline expired, only urgent motions were being scheduled; (2) through inadvertence, Mr. Ingram neglected to bring a motion to extend the Timetable Orders once the court began hearing non-urgent motions after June 29, 2020; (3) this inadvertence was only discovered in early 2021 when Mr. Ingram transferred this action to a colleague, Mr. Yehia; (4) upon the discovery of this inadvertence Mr. Yehia reached out to defendants’ counsel to determine whether the defendants would consent to an extension of the Timetable Orders; and (5) after the defendants advised that they would not consent, this motion was brought promptly in February 2021. The defendants submit that this motion was not brought promptly and the plaintiffs’ explanation for their delay in bringing the motion should be rejected.
[78] In my view, the plaintiffs have not demonstrated that they moved promptly to bring this motion. The plaintiffs rely on bald statements of inadvertence from Mr. Ingram, who was not the only lawyer working on the file. While Mr. Ingram uses the word “inadvertence”, he does not explain the inadvertence. Although the COVID-19 pandemic had hit, Mr. Ingram continued to work on the file in 2020 and corresponded with the plaintiffs in the summer and fall of 2020 about answering undertakings in this action. At that time, he knew that the plaintiffs had not met the set down date under the Timetable Orders and that no motion had been brought to vary the Timetable Orders and extend the deadline to set the action down for trial. Despite his bald statement about inadvertence, on cross-examination, Mr. Ingram admitted that he does not remember what he was aware of while working on this matter in 2020, and his evidence about what steps he was taking in 2020 was vague and inconsistent.
[79] Further, Ms. Delemere was working with Mr. Ingram on this matter until she began her maternity leave in July 2020. After that, Mr. Ingram was assisted by Erin Peters, an associate at BLG. There is no evidence from Ms. Delemere or Ms. Peters as to why the motion was not brought until February 2021. Of note, it is clear from the evidence that Ms. Delemere was aware of the Timetable Orders and the April 30, 2020 deadline for setting the action down for trial, and she sent Mr. Ingram an email about it on April 15, 2020. Considering all the circumstances, I do not accept that the failure to bring the motion more promptly was through inadvertence. The bald statement of inadvertence by Mr. Ingram in Ingram Affidavit #3 is not sufficient to demonstrate inadvertence on this point.
[80] The plaintiffs also submit that they could not have moved more promptly than they did because Mr. Ingram had not advised them of the deadlines in the Timetable Orders or that those deadlines had passed. In this regard, they submit that the requirement to move promptly begins at the time that the default comes to the attention of the client. They submit that since they did not know about the deadlines under the Timetable Orders until they were advised of them by Mr. Yehia in early 2021, they could not have brought this motion more promptly than they did.
[81] In my view, this is too narrow a reading of a party’s requirement to move promptly. This is not a situation in which neither the client nor the lawyer were aware of the default. In this case, plaintiffs’ counsel was well aware of the default. Mr. Ingram was expressly reminded of the pending April 30, 2020 deadline by Ms. Delemere on April 15, 2020, and he contacted defendants’ counsel on April 29, 2020 to seek a consent variance to the timetable order which ultimately was not agreed to by the parties. He then continued to work on the matter along with Ms. Delemere and then Ms. Peters. In these circumstances it cannot be said that the plaintiffs were unaware of the default, even if their lawyer had failed to so advise them. Further, the suggestion that the plaintiffs could not bring the motion until the clients were aware of the problem is belied by the fact that the motion was ultimately brought without instruction from at least one of the plaintiffs, CanDoo.
[82] In addition, and in any event, the plaintiffs’ conduct on the motion resulted in further and significant delay of the motion. This further delay was the result of the piecemeal approach by the plaintiffs with respect to delivery of their affidavit evidence in support of the motion.
[83] The chronology of events leading to the hearing of this motion in April 2023 is outlined above. As noted, the plaintiffs initially served their motion record in February 2021 that included Ingram Affidavit #1. The motion was brought as a short motion, returnable on August 16, 2021. On July 8, 2021, more than a month after the defendants delivered their responding materials, plaintiffs’ counsel advised that they would be delivering a supplementary motion record and rescheduling the motion as a long motion. As a result, the August 16, 2021 return date for the motion was vacated.
[84] On August 8, 2021, the plaintiffs delivered Ingram Affidavit #2. This affidavit included evidence relied on by the plaintiffs to explain the delay in meeting the Timetable Order. No reason is given as to why this information was not provided in Ingram Affidavit #1. Ingram Affidavit #2 also included evidence relied on by the plaintiffs in support of their position that the plaintiffs have always intended to advance the action to trial. This included emails between Mr. Ingram and the plaintiffs that were almost entirely redacted. The defendants took the position that the plaintiffs had waived privilege in these emails by relying on them as evidence of their intent and requested unredacted copies. In any event, following an August 18, 2021 case conference, the motion was ultimately rescheduled as a short motion returnable on May 20, 2022. Therefore, the plaintiffs’ decision to deliver Ingram Affidavit #2 and vacate the August 16, 2021 return date delayed the motion by 9 months.
[85] On April 4, 2022, just one month before the May 20, 2022 return date for the motion that had been scheduled since August or September 2021, the plaintiffs delivered Ingram Affidavit #3. Ingram Affidavit #3 included: (i) copies of the exhibits to Ingram Affidavit #2 that were less redacted but not fully unredacted, (ii) new redacted correspondence between the plaintiffs, their counsel, and their expert, and (iii) information relied on by the plaintiffs in support of certain of their explanations for the delay in the progress of this action dating back to the period beginning in April 2017. As noted, at least some of the redactions that were removed included evidence with respect to the very issue over which the plaintiffs had expressly waived privilege.
[86] Ingram Affidavit #3 understandably led to his cross-examination by the defendants. On cross-examination, Mr. Ingram acknowledged that his third affidavit was delivered to provide additional information not included in his earlier two affidavits, and not solely in response to the defendants’ request for unredacted emails. On May 12, 2022, the plaintiffs provided their answers to questions taken under advisement or refused at the May 5, 2022 cross-examination of Mr. Ingram.
[87] As a result of the expanded record, it was apparent at the return of the motion on May 20, 2022 that the motion had to be rescheduled to heard as a long motion. Following a case conference on June 30, 2022, the motion was adjourned to be heard as a long motion on November 4, 2022. As noted in a footnote above, the hearing of the motion was further delayed from November 2022 to April 2023 due to the illness of counsel. As there is no fault attributed to that delay, it is not relevant or considered with respect to the issue of whether this motion was brought promptly.
[88] In my view, the plaintiffs’ late delivery of Ingram Affidavit #3 caused or significantly contributed to the need for the second adjournment of the motion and led to a further 6 month delay in the hearing of the motion. Therefore, in addition to the initial 10 month delay before the plaintiffs brought this motion, the plaintiffs’ conduct with respect to the evidence they delivered in support of the motion caused a total further delay of 15 months.
[89] In the result, I find that the plaintiffs failed to bring this motion promptly.
4. Has the delay prejudiced the defendants?
[90] The principles with respect to the assessment of prejudice from delay include the following:
(a) The plaintiff has the onus to demonstrate that the Defendants will not suffer any “significant” prejudice to have a fair trial occasioned by litigation delay. If the plaintiff satisfies this onus by rebutting the presumption of prejudice, the onus shifts to the defendant to lead evidence of actual prejudice.[^33]
(b) The mere passage of time cannot be an insurmountable hurdle in determining prejudice, otherwise explanations would be futile.[^34]
(c) It is necessary to link the question of prejudice to whether a fair trial is still possible.[^35]
(d) In assessing prejudice, a defendant’s conduct is relevant.[^36]
[91] The plaintiffs submit that they have met the onus of rebutting the presumption of prejudice and that the defendants have not demonstrated actual prejudice. With respect to the presumption of prejudice, they submit that the defendants had sufficiently early notice of the claim to enable them to investigate it and take any necessary steps to preserve relevant evidence. They also point to a large body of documents in the productions that have been preserved, the 2015 and 2017 discoveries, the availability of the parties for trial, their answers to undertakings, delivery of their expert’s report, and preservation of the Pipes in issue. They submit that other than general claims of prejudice due to the passage of time, the defendants have not put forward specific evidence of actual prejudice.
[92] With respect to the presumption of prejudice, the record shows that the plaintiffs’ initial production was inadequate, which prevented the defendants from having a fair opportunity to examine the plaintiffs in 2015 or in 2017 with respect to relevant documents about the Project. This includes discovery with respect to key Project documents that the plaintiffs had not searched for or produced prior to the 2015 and 2017 examinations. Further, there are conflicting positions as to whether production is now complete or whether documents are missing, and if so, when or how they became unavailable, and there is no direct evidence from the plaintiffs on this issue. The evidence from Mr. Ingram on document preservation and witness availability is based on information and belief from Ms. Delemere. The source of Ms. Delemere’s information about witness availability is unstated. In the result, based on the limited evidence from Mr. Ingram available in the record, I find that the evidence is not sufficient to rebut the presumption of prejudice.
[93] Further, as the Court of Appeal has explained, the “more time that passes, the more difficult it is to defend a case” and “as the memories of witnesses fade over time, the passage of an inordinate length of time after a cause of action arises… gives rise to trial fairness concerns.”[^37] Even at the time of the 2017 examinations, which was five years after the events in question, Mr. Kalmring indicated that he had no specific recollection of observations on the Project, only a general recollection. His memory and that of other potential witnesses will naturally have degraded further over the passing years. The same is the case for the defendants’ witnesses.
[94] I also do not accept the plaintiffs’ assertion that in consenting to the Timetable Orders the defendants acknowledged that there was no prejudice to them to that point in time. The defendants’ agreement to the Timetable Orders was not unconditional. It was on the expectation that the plaintiffs would advance the claim by delivering key documents in a timely fashion. The consent should not be viewed as wiping the slate clean such that the overall delay can no longer be relevant to the assessment of prejudice. The Timetable Orders did not absolve the plaintiffs of the prior delay.[^38] Further, in the circumstances of this case, I do not accept the plaintiffs’ submission that the delay will solely impact the plaintiffs’ ability to prove its case. The defendants allege that CanDoo was negligent, and their ability to discover CanDoo on its conduct will have been negatively impacted by the delay.
[95] As Dunphy J noted in Jadid:
85 The burden is not upon the defendant to show prejudice. Prejudice may be inferred from the passage of time and this is a case where I have no difficulty in doing so, even if that inference does not go so far as to establish fatal prejudice. The occurrence report filed by the driver the day after the incident is the only evidence the defendant has and will likely ever have to counter whatever the plaintiff’s version of events when she alleges negligence of the defendant. That report is terse — it is highly doubtful that it will be able reliably to be supplemented with revived actual memory this many years after the fact. The ability of this or any defendant similarly situate to defend a claim this old and of this nature on the issue of liability has certainly been compromised. Once sharp and persuasive evidence may lose a considerable amount of its punch when reduced to an antiseptic reading of an occurrence report ten or more years after the fact without the ability to contribute any meaningful additional details. Such prejudice is progressive and almost impossible to quantify. I conclude from the totality of the evidence before me that the defendant’s right to a fair hearing has been impaired by the passage of time through the inaction of the plaintiff.[^39]
[96] While the nature of the claim in Jadid is very different than the claim in this action, the principles about the burden on a plaintiff, the loss of evidentiary detail over time, and the progressive nature of that loss are all applicable.
[97] In addition, as explained by the Court of Appeal, there is a second type of prejudice at play in circumstances of lengthy litigation delay such as in this case:
Another harm that flows from delay, properly relied on by the status hearing judge, is that it leaves the litigant with the claim hanging over its head in a kind of perpetual limbo. Fairness requires allowing parties to plan their lives on the assumption that, barring exceptional or unusual circumstances, litigation time lines will be enforced. “Litigants are entitled to have their disputes resolved quickly so that they can get on with their lives” and “delay multiplies costs and breeds frustration and unfairness”…. it was entirely proper for the status hearing judge to weigh in the balance the fact that the defendants would inevitably suffer some harm if, after more than five years and no significant movement by the plaintiff, they were forced to continue to face this contingent claim.[^40]
[98] This form of prejudice was also noted in Jadid:
86 Furthermore, prejudice is a criterion that captures more than just the mechanical ability of a party to put evidence into the trial hopper for assessment. The burden of dealing with litigation for so many years is a form of prejudice in and of itself. Defendants have a right to receive a decision in a reasonable time frame or be left in peace. The right to pursue a claim is not an absolute — it must be tempered with the right of the defendant unwillingly called to account by a plaintiff to have the claim diligently managed through the litigation process. This defendant has done nothing to hinder or delay the plaintiff and it is the plaintiff who bears the primary responsibility of managing this litigation through to trial: Wallace v. Crate’s Marine Sales Ltd. (supra) at para. 18. The plaintiff’s shortcomings in advancing this case have all been of her own devising.[^41]
[99] In the result, I conclude that there is non-compensable prejudice to the plaintiff that can be attributed to the overall delay and the delay since the Timetable Orders were made.
(iii) Contextual analysis
[100] My conclusions with respect to the Reid factors must be considered in the context of the action as a whole and all of the relevant circumstances in order to arrive at a just result.
[101] The plaintiffs submit that in determining the just result in this case, the court should be mindful of the fact that the delay was occasioned by the actions of counsel. In this regard, the plaintiffs rely on the principle that: (1) the court should be concerned primarily with the rights of litigants, not with the conduct of their counsel; and (2)”[t]he 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”.[^42]
[102] However, a motion such as this also requires the court to consider whether a plaintiff will be left without a remedy, and whether countenancing the lawyer’s conduct would risk undermining public confidence in the administration of justice. This principle was explained as follows by the Court of Appeal:
28 One important consideration is that the plaintiff will not be left without a remedy. I recognize here the need to ensure that adequate remedies are afforded where a right has been infringed. 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: see e.g. Chiarelli v. Wiens (2000), 2000 3904 (ON CA), 46 O.R. (3d) 780 (Ont. C.A.) at para. 9.
29 However, this calculus implicitly assumes that the court is left with a stark choice between defeating the client’s rights and forcing the opposite party to defend the case on its merits. That assumption is faulty where, as in this case, the solicitor’s conduct is not mere inadvertence, but amounts to conduct very likely to expose the solicitor to liability to the client. When the solicitor is exposed in this way, the choice is different; refusing the client an indulgence for delay will not necessarily deny the client a legal remedy.
30 In these circumstances, and contrary to the view expressed by the Divisional Court judge, the Master properly distinguished inadvertence from negligence. Leaving the Registrar’s order in place would not necessarily deprive the respondents of a remedy. It was appropriate on these facts for the Master to tell the respondents that they should “consider what other remedies are available to them”.
31 A second consideration is that the nature of the delay and the solicitors’ conduct in this case amount to more than that kind of lapse or inadvertent mistake that the legal system can countenance. We should opt for a resolution that discourages this type of conduct which undermines the important value of having disputes resolved in a timely fashion. The decision of the Master sends the right message and provides appropriate incentives to those involved in the civil justice system.
32 Moreover, excusing a delay of this magnitude and gravity risks undermining public confidence in the administration of justice. Lawyers who fail to serve their clients threaten public confidence in the administration of justice. …[^43]
[103] In Jadid, Dunphy J. considered the assessment required when the reasons for delay include the conduct of counsel, explaining the necessary balancing as follows:
89 The plaintiff urges that I must attach great weight to the risk of an innocent plaintiff being deprived of a hearing on the merits due to the faults of her counsel. I am of course concerned by the risk of visiting the consequences of a solicitor’s fault on the client. On the other hand, this consideration is almost always present where the court is asked to exercise its role of policing undue delay in the conduct of civil litigation. It is a consideration, and a serious consideration. However, it is a consideration that must be weighed in the balance against the values of preserving the integrity of the civil litigation system and the protecting the rights of innocent litigants in the manner described by Sharpe J.A. in 1196158 Ontario Inc. (supra) and Marché D’Alimimentation (supra). The plaintiff’s desire to continue with the case (which I am prepared to assume notwithstanding the lack of actual evidence) does not operate as a veto over the court’s ability to control its process and police delay. If indeed she has not contributed to the delay (and I cannot judge what has occurred behind the veil of confidentiality), she may well have other remedies available to her.[^44]
[104] In the result, I find that “the nature of the delay and the solicitors’ conduct in this case amount to more than that kind of lapse or inadvertent mistake that the legal system can countenance” and that “excusing a delay of this magnitude and gravity risks undermining public confidence in the administration of justice.”[^45]
[105] The plaintiffs also submit that they were misled by their own counsel who failed to disclose the applicable deadlines to them, including those in the Timetable Orders, and failed to inform them of the breaches of the Timetable Orders. On this basis, they submit it would be just to extend the deadlines under the Timetable Orders. In this regard, they rely on Cornell v Tuck.[^46] However, the circumstances of this motion differ from those in Cornell v Tuck, where the plaintiff was “innocent”, believed he had done all he needed to do to get the matter on to trial, was misled into thinking the matter was ready for trial, and was merely waiting for a trial date from the court. Here, the plaintiffs knew there were incomplete steps, and they knew that they themselves had not completed them. At a minimum, in May 2019, CandDoo was “informed … by phone about the timetable that had been ordered”, even if it was not provided with the details of the timetable or the specific deadlines. There is no evidence from anyone at CanDoo explaining what, if anything, they asked about the Timetable Orders and what they understood them to be or to require. The other plaintiff, GCNA, is a sophisticated litigant. It worked with lawyers at BLG, including Mr. Ingram, to advance other litigation. In the circumstances, GCNA could not have reasonably believed that this was ordinary litigation conduct and that it was usual for undertakings to remain unfulfilled for the nearly 4 years. Periodically asking for updates is not sufficient for GCNA to meet its obligation as one of the plaintiffs to move the action forward and supervise counsel.
[106] The plaintiffs also submit that because they have now taken the necessary steps to set the action down for trial, dismissal of the action at this time would be punitive, not efficient. I do not agree. Since bringing this motion, the plaintiffs have served their answers to undertakings, made supplementary production, and served an expert’s report. While the recent steps taken by the plaintiffs may be relevant with respect to the assessment of prejudice, as noted above I am not able to find that the plaintiffs have now satisfied all of their discovery obligations, that production is complete, that all documents remain available, and that witnesses’ memories will not have faded further as a result of the delay. In any event, the circumstances of this motion are such that it would not be just to permit the “after-the-fact” conduct of the plaintiffs to trump all of the other Reid factors that favour the defendants. For example, even if the plaintiffs have since the bringing of its motion taken steps to advance the action, that does not erase the fact of delay or obviate the need for the plaintiffs to provide an adequate explanation for it. Doing so would not be consistent with the applicable principles and, in my view, would be inequitable. Rather, a contextual approach requires that all of the circumstances of the case must be considered in order to arrive at a just result. As noted, one of the salient factors is that the plaintiffs had already been handed a lifeline in the form of the Timetable Orders which they failed to comply with.[^47] Despite that lifeline, the plaintiffs completely disregarded the Timetable Orders, and there was no real progress of any sort in the action following the examination for discovery of Mr Kalmring in 2017 until after this motion was brought.
[107] In summary, the plaintiffs have failed to provide an adequate explanation for the delay or demonstrate inadvertence. They did not bring the motion promptly in two ways. First, they waited 10 months to serve a notice of motion. Then, their conduct in delivering three separate affidavits from Mr. Ingram spread over long periods caused adjournments of the motion and further delays. The evidence in Ingram Affidavit #2 and Ingram Affidavit #3 was readily available, and it could have been included in Ingram Affidavit #1. The remaining redactions are troubling to the court. The plaintiffs have not met the burden of rebutting the presumption of prejudice in the circumstances. In any event, even if the assessment of prejudice did not fall in favour of the defendants, and accepting that prejudice can be a key consideration, there is no absolute priority to be given to any single one of the four criterion over the others, and all factors and circumstances must be considered.[^48]
[108] In all the circumstances, I find that, as in Jadid, fairness and justice to all who use the civil justice system, including for the defendants who have had this case hanging over their heads for so many years, would not be advanced by varying the Timetable Orders.[^49] Considering the Reid factors and a contextual analysis of all of the circumstances, I find that it would not do justice to extend the deadline to set the action down for trial.
D. DISPOSITION
[109] For the reasons outlined above, the plaintiffs’ motion is dismissed. Accordingly, the January 18, 2019 Timetable Orders, including paragraph 3 of the orders, remain unvaried. For greater certainty, no order is made extending the April 30, 2020 deadline for setting the action down for trial pursuant to the January 18, 2019 Timetable Orders.
[110] The parties are encouraged to come to an agreement on costs. If they are unable to do so, they shall exchange their most current costs outlines by no later than September 1, 2023 (if they have not already done so) and shall deliver written submissions not exceeding three pages (not including costs outlines), the defendants by September 8, 2023 and the plaintiffs by September 15, 2023. The parties shall file their costs submissions with my Assistant Trial Coordinator, Kimi Sharma, by email to Kimi.Shamra@ontario.ca. If they reach an agreement on costs, they shall inform Ms. Sharma forthwith.
R. Frank Associate J.
DATE: August 22, 2023
[^1]: Mr. Ingram had day-to-day carriage of this matter from the issuance of the statement of claim until he left the firm on January 8, 2021.
[^2]: Reid v. Dow Corning Corp., [2001] O.J. No. 2365 (S.C.J.) (“Reid”) at paras 40-41; rev’d on other grounds, [2002] OJ No 3414 (Div. Ct.). See Samuels v. Mai, 2020 ONCA 408 (“Samuels”) and Jadid v Toronto Transit Commission, 2016 ONSC 1176 (“Jadid”) with respect to the application of the Reid factors in the context of a motion to vary a timetable order.
[^3]: Scaini v. Prochnicki, 2007 ONCA 63 (“Scaini”) at paras 2-3, 12 and 19-28
[^4]: H.B. Fuller Company v. Rogers (Rogers Law Office), 2015 ONCA 173 (“Fuller”) at para 23
[^5]: Micallef v. Dodig, [2009] O.J. No. 5564 (“Micallef”) (Div. Ct.) at paras 30-31
[^6]: 1196158 Ontario Inc. v. 6274013 Canada Ltd., 2012 ONCA 544 (“1196158 Ontario”) (Ont. C.A.) at paras 17-18
[^7]: Fuller at para 25
[^8]: Fuller at paras 26-27
[^9]: MDM Plastics Ltd. v. Vincor International Inc, 2015 ONCA 28 (“MDM”) at para 24; Finlay v. Van Paassen, 2010 ONCA 204 (“Finlay”) at para 28
[^10]: Micallef at para 33
[^11]: Fuller at para 23
[^12]: Fuller at para 27; see also The Corporation of the City of London v Osler Hoskin & Harcourt LLP, 2016 ONSC 2835; Kerr v. CIBC World Markets Inc., 2013 ONSC 7685; Kamalie v. Khari, 2021 ONSC 7395 (“Kamalie”)
[^13]: Carioca’s Import & Export Inc. v. Canadian Pacific Railway Limited, 2015 ONCA 592, 128 O.R. (3d) 143 (“Carioca’s Import & Export Inc.”) at para 54
[^14]: Jadid at para 66
[^15]: The hearing of the motion was further delayed from November 2022 to April 2023 due to the illness of counsel. As no fault can be attributed to that delay, it is not considered as part of the overall delay, nor with respect to the issue of whether the motion was brought promptly.
[^16]: I have calculated the delay to the hearing date of the motion rather than the date of service of the motion record because, for the reasons outlined below, I find that the plaintiffs did not move promptly to bring this motion and their conduct caused material delays in its scheduling.
[^17]: There was a dispute between the parties as to proper discovery witnesses for the plaintiffs, and the defendants were required to bring a motion to compel Mr. Kalmring to attend an examination for discovery. While this slowed the progress of the action, I do not consider it necessary for the plaintiffs to explain this delay.
[^18]: This period is relevant to the overall delay.
[^19]: This explanation is relevant to the assessment of the delay for the period from July 2018 to January 2019. It is also relevant with respect to the delay following the Timetable Orders for the period from January 2019 to July 2019.
[^20]: This is relevant with respect to the assessment of the delay following the Timetable Orders.
[^21]: See Lee v. Kim, 2020 ONSC 6962 at para 23, citing Facchini v. Rosen et al, June 7, 2017, CV-10-01445 (unreported)
[^22]: Lee v. Kim, 2020 ONSC 6962 at para 23
[^23]: Fuller, para 23; MDM Plastics at paras 33-34
[^24]: American Environmental Container v. Kennedy, 2022 ONSC 1353 at para 40
[^25]: Wallace v. Crate’s Marine Sales Ltd., 2014 ONCA 671 at para. 18; Wellwood v. Ontario Provincial Police, 2010 ONCA 386 at para. 48
[^26]: 1196158 Ontario at para 30
[^27]: Kamalie at para 33, citing Cousins v. Roesler, 2014 CarswellOnt 14821, 2014 ONSC 4530 (“Cousins”) at para 12; Habib v Mucaj, 2012 ONCA 880 at para 7
[^28]: Kamalie at para 32
[^29]: The only direct reference to inadvertence in the Mr. Ingram’s affidavits relates to the delay in bringing this motion, which I deal with below.
[^30]: Kamalie at para 23 (citing Cousins at paras 5-12) and at para 32
[^31]: Jadid at para 64
[^32]: Mandal v. 575419 Ontario Ltd., 1994 CarswellOnt 484 (Ont. Gen. Div.) at para 15; Marché D’Alimentation Denis Thériault Ltée v. Giant Tiger Stores Limited, 2007 ONCA 695 (“Marché d’Alimentation”) at paras 14 and 27; Estate of James Freure v. Terracon Underground Ltd., 2022 ONSC 1591 at para 54; Abou-Naoum v. Leon’s Furniture Ltd., 2016 ONSC 7341 at paras 53-61
[^33]: Richards-Wilcox Door Systems Ltd. v. Ilsco of Canada Co., 2015 CarswellOnt 31 at para 13
[^34]: Carioca’s Import & Export Inc. at para 49
[^35]: Fuller at para 44
[^36]: Fuller at para 42
[^37]: 1196158 Ontario at paras 42-43; Wellwood at para 72
[^38]: Jadid at para 61
[^39]: Jadid at para 85
[^40]: 1196158 Ontario at para 44
[^41]: Jadid at para 86
[^42]: Finlay at para 33; Fuller at para 27
[^43]: Marché d’Alimentation at paras 28-32
[^44]: Jadid at para 89
[^45]: Marché d’Alimentation at para 31; Jadid at para 89
[^46]: Cornell v. Tuck, 2018 ONSC 7085
[^47]: Jadid at paras 55 and 64
[^48]: Scaini at paras 21-23; Jadid at para 62
[^49]: See Jadid at para 92