Court File and Parties

COURT FILE NO.: CV-15-00543518

MOTION HEARD: 20231123

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Xiao Yun Zhang, by her Litigation Guardian Shao Hua Zhang, Shao Hua Zhang, personally, Carly Situ and Kenny Situ, Plaintiffs

AND:

Robert J. Kusnir, Maria Kusnir and Stephanie S. Marshall, Defendants

BEFORE: Associate Justice L. La Horey

COUNSEL: C. Michael J. Kealy and Faith Reid, Agents for Counsel for the Plaintiffs

Michael Burgar, Counsel for the Defendants Robert J. Kusnir, Maria Kusnir

HEARD: November 23, 2023

REASONS FOR DECISION

OVERVIEW

[1] The plaintiffs have brought a motion to have this action restored to the trial list pursuant to Rule 48.11 of the Rules of Civil Procedure.

[2] The defendants Robert J. Kusnir and Maria Kusnir (the “defendants”) have brought a cross-motion under Rule 24.01 seeking an order dismissing the action for delay.

[3] For the reasons that follow, I grant the plaintiffs’ motion and dismiss the defendants’ motion.

BACKROUND

[4] On October 25, 2015, the plaintiff Xiao Yun Zhang was struck by a motor vehicle operated by the defendant Robert Kusnir while a pedestrian crossing the street. She brings this action by her litigation guardian, Shao Hua Zhang, her daughter, who also claims on her own behalf for damages under the Family Law Act (“FLA”). Her granddaughter, Carly Situ, and her grandson, Kenny Situ, are also plaintiffs seeking FLA damages. Xiao Yun Zhang was 71 years old at the time of the accident. It is alleged that she was hospitalized because of the accident and required brain surgery.

[5] At first, this action proceeded quickly, compared to the progress of most personal injury actions in our courts. The statement of claim was issued two months after the accident on December 24, 2015, by the plaintiffs’ former lawyer, Gregory Chang. Pleadings and affidavits of documents were exchanged and the examinations for discovery of Mr. Kusnir and the litigation guardian were conducted by July 21, 2016. The action was set down for trial on August 9, 2016, less than a year after the accident.

[6] A mediation was conducted on September 18, 2017 and a second mediation took place on September 17, 2018. The action did not settle, but by October 2, 2018, the claim against the defendant Stephanie S. Marshall was dismissed on consent and the Kusnir defendants admitted liability.

[7] Meanwhile, the court struck the action off the trial list on August 25, 2017, as a result of Mr. Chang’s failure to schedule pre-trial and trial dates before that date, notwithstanding that he had received a notice from the court on October 13, 2016, advising of this requirement. This form was not provided to the plaintiffs personally or to defence counsel. The plaintiffs did not learn that the action had been struck from the trial list until December 2021.

[8] On these motions, the plaintiffs tendered the affidavit of Carly Situ and the plaintiffs’ new lawyer, Joel Freedman, retained in September 2021. Some of the documents attached to the affidavits were redacted for settlement privilege. I understand that this was done at the request of defence counsel, who did not take issue with the redactions. The defendants tendered an affidavit of a paralegal at the office of defence counsel.

[9] The plaintiffs followed up with Mr. Chang and his law clerk about the status of their file and settlement on about 13 occasions between February 2019 and September 23, 2019. The lawyer who referred the plaintiffs to Mr. Chang also wrote to him asking that he update the plaintiffs on the status of the file. Early in August 2019 Mr. Chang’s clerk advised the plaintiffs that Mr. Chang would provide an update. After further follow-up emails from the plaintiffs Mr. Chang sent an email on November 22, 2019, referring to ongoing settlement discussions with counsel for the defendants.

[10] The defendants’ evidence is that the last communication from Mr. Chang to defence counsel was an email on November 22, 2019. The email is not in evidence.

[11] On December 4, 2019, the plaintiffs emailed Mr. Chang advising that they were considering an action against him and a complaint to the Law Society of Ontario (“LSO”) absent an explanation as to what was happening with their action and why Mr. Chang was not responding.

[12] The plaintiffs made a complaint to the LSO on December 19, 2019. Mr. Freedman attached the complaint as an exhibit to his affidavit, redacted to remove settlement privileged information. In the complaint the plaintiffs state that the result that they are looking for is for Mr. Chang to keep them updated in a regular way in writing, among other things, otherwise they would consider transferring the file to another lawyer.

[13] On January 16, 2020, Mr. Chang’s clerk emailed the plaintiffs to advise a meeting was necessary to sign final settlement documentation. The plaintiffs requested the documents for review in the advance of any meeting. No documents were sent and Mr. Chang’s office did not respond further.

[14] The plaintiffs’ evidence is that they then waited for the LSO to process the complaint against Mr. Chang, expecting that either Mr. Chang would start to update the plaintiffs regularly or, once the LSO had processed the complaint, they would have to hire a new lawyer.

[15] On February 19, 2021, defence counsel sent a letter to Mr. Chang noting that he had determined from the court file that the action had been struck from the trial list on August 25, 2017, and advising that he had instructions to bring a motion to dismiss the action for delay. As noted above, the plaintiffs did not learn that the action had been struck off the trial list until December 2021 when advised by Mr. Freedman.

[16] The defendants brought a motion to dismiss the action for delay returnable June 3, 2021. Mr. Chang attended. On consent, Master Sugunasiri (as she was then) adjourned the defendants’ motion to a date to be scheduled to be heard with the plaintiffs’ proposed motion to restore the action to the trial list. She also ordered that the plaintiffs’ lawyer deliver a notice of change of lawyer, reflecting his new law firm within seven days of the order, and provide an update on the current capacity and condition of the Xiao Yun Zhang within 60 days. The plaintiffs were ordered to pay costs of the motion in the sum of $2,500. Other than the costs payment by Mr. Chang, the plaintiffs did not comply with the terms of the order. The plaintiffs’ evidence is that they were unaware of this motion and the result.

[17] On July 13, 2021, the LSO released a decision suspending Mr. Chang from practice.

[18] On August 19, 2021, the plaintiffs received their last communication from Mr. Chang’s firm. This email from Mr. Chang’s law clerk advised that due to personal reasons Mr. Chang would be closing his office temporarily and his former colleague would take over the plaintiffs’ file. The plaintiffs retained Mr. Freedman soon after in September 2021.

[19] Mr. Freedman tried to obtain the plaintiffs’ complete file from Mr. Chang and the former colleague from September 27, 2021 onwards without success. He eventually obtained it on or about December 8, 2022, from the LSO which had been appointed trustee over Mr. Chang’s practice pursuant to a court order on November 4, 2022.

[20] Meanwhile, Mr. Freedman commenced the motion to restore this action to the trial list by service of a notice of motion dated March 1, 2022. The motion was ultimately heard by me on November 23, 2023.

LAW AND ANALYSIS

Plaintiffs’ Motion to Restore Action to Trial List

[21] Rule 48.11(b) provides that where an action has been struck off a trial list, it shall not thereafter be placed on any trial list except with leave of the court.

[22] The leading case in this area is Carioca’s Import and Export Inc. v. Canadian Pacific Railway.[^1] In that decision the Court of Appeal held that there are two tests for restoring an action to the trial list depending on whether there is an impending dismissal. If there is no impending dismissal, the plaintiff must show that the action is “ready for trial”. A second, stricter test, applies where there is an impending dismissal and the refusal to restore an action to the trial list will result in its dismissal.[^2]

[23] The plaintiffs contend that there is no pending dismissal because the court office is not currently issuing Rule 48.14 administrative dismissal orders. This is not a persuasive argument in my view, but I need not decide the question given my conclusion that the plaintiffs meet the more onerous test.

[24] This test requires the plaintiffs to show on a balance of probabilities that there was a reasonable explanation for the delay in the litigation and that, if the action was allowed to proceed, the defendants would suffer no non-compensable prejudice.[^3]

[25] The Court of Appeal has said that in applying this test, the court “must strike a balance between the need for efficiency and the need for flexibility, such that cases can be tried on the merits where there is a reasonable explanation for non-compliance with the rules.”[^4]

Is there an acceptable explanation for the delay in the litigation?

[26] At this juncture I must decide whether the plaintiff has provided an “acceptable” explanation for the delay.[^5] In making this decision, I must consider the overall conduct of the litigation, in the context of local practices.[^6]

[27] The Court of Appeal in Carioca’s has instructed that:[^7]

The context of the action and any other relevant factors that are specific to the case must be considered. These will include the overall progress of the action before it was listed for trial, the circumstances of how the action came to be struck from the trial list, and the conduct of all parties. Procedural rules cannot be mechanically applied but have to be interpreted in a contextual manner that pays heed to all relevant circumstances and consequences.

[28] The parties calculate the relevant delay period differently. The plaintiffs submit that relevant delay is the period between the September 2018 mediation and September 2021, when the plaintiffs retained their current lawyer. With a deduction of six months related to the suspension of timelines related to COVID,[^8] the delay is approximately 31 months.

[29] The defendants submit that the relevant period of delay starts when the action was struck from the trial list on August 25, 2017, and runs until the plaintiffs’ lawyer first raised the possibility of a motion to restore the action to the trial list on June 3, 2021, less a six-month period related to the suspension of timelines due to COVID. This works out to be approximately 39 months.

[30] In my opinion, the difference in the two calculations is not determinative in the context of this case.

[31] As discussed above, this action proceeded unusually rapidly for a Toronto personal injury action before it was set down for trial. Indeed, if the statement of claim had been issued just before the two-year limitation period, in October 2017, as is often the case, the five-year period to set the matter down for trial would not have expired until approximately April 2023 (considering the six-month suspension of timelines due to COVID).

[32] Based on the record before me, I find that the delay was due to the plaintiffs’ former lawyer and that the plaintiffs intended to prosecute this action throughout. Ms. Situ in her affidavit states that the plaintiffs always intended to continue the action. They did not know that the action had been struck from the list until December 2021. Her statements are corroborated by the many follow-up emails from the plaintiffs to their former lawyer, and the complaint to the LSO. Ms. Situ was not cross-examined.

[33] Ms. Situ says in her affidavit that she has been more involved in dealing with the lawyers than her mother or grandmother because she is fluent in English and they are not. The defendants ask that I draw an adverse inference that “the will to diligently prosecute this action may not really exist” from the plaintiffs’ failure to tender an affidavit from the litigation guardian. The defendants note that the litigation guardian was examined for discovery with a Chinese interpreter in 2016. I decline to draw any adverse inference in these circumstances. From the correspondence, it is apparent that Carly Situ was involved with the lawyers, given her facility with English. She was also the one who made the LSO complaint in December 2019 on behalf of all the plaintiffs for this same stated reason.

[34] The defendants argue that the plaintiffs’ main complaint with their previous lawyer is not that he did not prosecute the action expeditiously or move to restore the action to the trial list. Rather, their real complaint is that he did not settle the action which is not an acceptable explanation for delay. In my view, this analysis is not helpful. It would require a review of all the settlement communications which are not in evidence, at the request of the defendants.

[35] The defendants suggest that it is appropriate to consider what remedies the plaintiffs may have against their former lawyer. The plaintiffs have commenced an action against Mr. Chang. The defendants state that there is a tension in the case law on whether lawyer misconduct can be considered acceptable explanation. They rely on the decision of Sharpe J.A. in Marché d'Alimentation Denis Thériault Ltée v. Giant Tiger Stores Ltd.[^9] which involved a motion to set a dismissal order. In that case, it was held that the plaintiffs had failed to provide an adequate reason for delay. The court found that the lawyer deliberately put the file in abeyance.[^10] In this case Mr. Chang did not deliberately put the plaintiffs’ action in abeyance.

[36] In a subsequent decision of the Court of Appeal, also involving a motion to set aside a dismissal order, Laskin J.A. held that:[^11]

Speculation about whether a party has a lawsuit against its own lawyer, or the potential success of that lawsuit, should not inform the court's analysis of whether the registrar's dismissal order ought to be set aside.

In my view, on a motion to set aside a dismissal order, the court should be concerned primarily with the rights of the litigants, not with the conduct of their counsel. As Sharpe J.A. noted in Marché, at para. 28, "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." Sharpe J.A. went on to recognize that the situation may be different where the lawyer's conduct is not inadvertent but deliberate. In the case before us, however, the conduct of Finlay's law firm was not deliberate, which affords a further basis to call into question whether the motion judge's decision was just: see Chiarelli v. Weins; Gao v. De Keyser, [2008] O.J. No. 2225, 61 C.P.C. (6th) 89 (Div. Ct.), at para. 27.

[37] In the context of a motion to set aside a Registrar’s dismissal order, the Court of Appeal explained that there are 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.”[^12] The court also reiterated that: “The court’s bias is in favour of deciding matters on their merits rather than terminating rights on procedural grounds.”[^13] The court went on to state: “The court's preference for deciding matters on their merits is all the more pronounced where delay results from an error committed by counsel.”[^14]

[38] This case is similar to Kerr v CIBC World Markets Inc. where Justice Newbould stated:[^15]

In this case, the explanation given by the plaintiff is that she always wanted to proceed with the action and instructed her lawyers to do so and that she constantly enquired of her lawyers about a trial date. It was her lawyers that failed her. That in my view is an acceptable explanation for the delay in this case. It was accepted as an explanation in Farmers Oil & Gas Inc. v. Ministry of Natural Resources, 2012 ONSC 6432, a case involving a five year delay. And as Sharpe J.A. said in Chiarelli, the law will not ordinarily allow an innocent client to suffer the irrevocable loss of the right to proceed by reason of the inadvertence of his or her solicitor.

[39] The defendants also argue that there is a period of unexplained delay between December 2019 (when then the plaintiffs made the complaint to the LSO) and September 2021 (when they retained new counsel).[^16] The defendants suggest that this period of delay is attributable to the plaintiffs and their first lawyer jointly. They contend that it was not reasonable for the plaintiffs to have delayed “on the assumption that the LSO would prosecute this action for them.”

[40] I do not agree that this period of delay is unexplained. The plaintiffs were waiting for the LSO investigation into their complaint which asked that Mr. Chang respond to them. They were not aware that the action had been struck from the trial list. They sought out new counsel promptly after being advised by Mr. Chang’s office that he would not be practising law and his office was temporarily closed.

[41] For these reasons, I find that the plaintiffs have provided an acceptable explanation for the delay.

If the action is allowed to proceed, will the defendants suffer any non-compensable prejudice?

[42] In Carioca’s, the Court of Appeal explained:[^17]

The issue of prejudice is a factual question. The plaintiff bears the onus of demonstrating that the defendant would suffer no non-compensable prejudice if the action were allowed to proceed. The mere passage of time cannot be an insurmountable hurdle in determining prejudice, otherwise timelines would become inflexible and explanations futile.

[43] A defendant is not required to offer evidence of actual prejudice[^18] and the defendants in this case have not done so.

[44] The plaintiffs submit that they have demonstrated that that there is no prejudice to the defendants. Affidavits of documents have been exchanged. Discoveries of the driver, Mr. Kusnir, and the litigation guardian were conducted within a year of the accident. Transcripts are available to be ordered. Undertakings have been answered. A police report of the accident has been produced. The plaintiffs have produced medical records, including records of the family physician from three years pre-accident to August 2021, as well as decoded OHIP summaries, hospital records, accident benefit reports and records. Ms. Zhang’s family physician remains in practice. The plaintiffs’ experts remain active.

[45] Importantly, in this action liability is admitted. This is not a case like Nissar v Toronto Transit Commission[^19] where liability was in issue and a transcript of the discovery of the bus driver involved in the accident was not available.

[46] The defendants do not allege that any records are missing, only that the disclosure needs to be updated. That is the case with most personal injury actions. The defendants note that Ms. Situ’s affidavit does not provide the residential address of the injured plaintiff, Xiao Yun Zhang or her current care needs and conditions. However, this is easily addressed. Updated medical information and information relevant to damages is often provided by the plaintiff shortly prior to trial. The defendants in oral argument also referred to the fact that the Xiao Yun Zhang was not examined for discovery based on Mr. Chang’s representation that she was not capable of being discovered. Only the litigation guardian was examined. However, the defendants did not press the issue and attended two mediations without Xiao Yun Zhang having being examined for discovery.

[47] In sum, I find that the plaintiffs have met their onus of showing that there is no non-compensable prejudice to the defendants.

Conclusion on the Plaintiffs’ Motion

[48] I am satisfied that the plaintiffs have demonstrated that the action should be restored to the trial list.

Defendants’ Motion to Dismiss for Delay

[49] The defendants rely on Rule 24.01(e) which provides that a defendant may move to have an action dismissed for delay where the plaintiff has failed “to move for leave to restore to a trial list an action that has been struck off the trial list, within thirty days after the action was struck off.” As noted, the action was struck off the trial list in August 2017 and the plaintiffs did not indicate an intention to bring a motion to restore the action to the trial list until June 2021.

[50] In Langenecker v Sauvé, Justice Borins identified two types of cases that will justify an order for dismissal for delay.[^20] The first is where the delay is caused by the intentional conduct of the plaintiff or his counsel that demonstrates a disdain or disrespect for the court’s process. This type of case usually involves serial violations of court orders.[^21] The defendants do not take the position that the case at bar is one of those rare cases.

[51] The defendants submit that this case falls within the second category of cases warranting dismissal for delay. In these cases, “[t]he delay must be inordinate, inexcusable and such that it gives rise to a substantial risk that a fair trial of the issues in the litigation will not be possible because of the delay.”[^22]

Is the delay inordinate?

[52] Inordinate delay is “measured simply by reference to the length of time from the commencement of the proceeding to the motion to dismiss.”[^23]

[53] In this case, the time from the commencement of the proceeding in December 2015 to the commencement of the defendants’ motion to dismiss in June 2021,[^24] is about six and a half years, without taking into account a six month period due to the suspension of limitation periods.

[54] In Ticcharelli v Tichharelli, a delay of 11 years was inordinate.[^25] In Grewel v Peel District School Board,[^26] I found that a delay of approximately eight years was inordinate. In Ali v Fruci,[^27] the delay from the beginning of the action to the motion to dismiss was over five years. The Court of Appeal held that “although perhaps a close case in the context of this litigation”, it would defer to the motion judge’s finding that the delay was inordinate. Although a close call, in the context of this litigation, I do not find that the delay is inordinate. However, even if it could be said to be inordinate, the plaintiffs have rebutted any presumption of prejudice arising out of the delay, as I outline below.

Is the delay inexcusable?

[55] The enquiry into whether the delay is “inexcusable” requires a determination of the reasons for the delay and an evaluation of whether those reasons afford an adequate explanation for the delay.[^28]

[56] I have already found that the plaintiffs have provided an acceptable explanation for the delay. For the reasons above, I find that the defendants have not established that the delay was inexcusable.

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

[57] The Court of Appeal in Ticchiarelli v. Ticchiarelli explained this part of the test as follows:[^29]

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

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

[58] In my view, a fair trial is possible. I find that the plaintiffs have rebutted any presumption of prejudice. This case is ready for trial, subject to obtaining updated disclosure and updated and additional expert reports. The relevant evidence has been preserved. Discovery transcripts are available. Liability is admitted in this personal injury action and the only issue is damages.

Conclusion on Defendants’ Motion

[59] For the above reasons, the defendants’ motion to dismiss the action for delay should be dismissed.

DISPOSITION

[60] The plaintiffs’ motion to restore the action to the trial list is granted and the defendants’ motion is dismissed.

[61] The parties shall attempt to agree on costs and a timetable for the next steps in the action. If the parties can reach agreement, they may submit a draft consent order that includes a timetable for my review. If they cannot, they should contact my assistant trial coordinator who will arrange a case conference.

L. La Horey, A.J.

Date: December 6, 2023

[^1]: Carioca’s Import and Export Inc. v. Canadian Pacific Railway, 2015 ONCA 592 [^2]: Carioca’s at paras 42 - 43 [^3]: Carioca’s at para 3, 44; Nissar v Toronto Transit Commission, 2013 ONCA 361 at paras 30 - 31 [^4]: Carioca’s at para 43 [^5]: Carioca’s at para 45 [^6]: Carioca’s at para 46 [^7]: Carioca’s at para 55 [^8]: Ontario Regulation 73/20 made pursuant to s. 7.1 of the Emergency Management and Civil Protection Act, RSO 1990, c E.9. On July 24, 2020, O. Reg. 73/20 was continued under the Reopening Ontario (A flexible Response to Covid-19) Act, 2020, SO 2020, c. 17. On September 14, 2020, O. Reg. 73/20 was revoked, O. Reg. 457/20. [^9]: Marché D'Alimentation Denis Theriault Ltée v. Giant Tiger Stores Ltd, (2007) 2007 ONCA 695, 87 O.R. (3d) 660 [^10]: Marché at para 26 [^11]: Finlay v. Van Paassen, 2010 ONCA 204 at paras 32, 23 [^12]: H.B. Fuller Co. v Rogers (c.o.b. Rogers Law Office), 2015 ONCA 173 at para 25 [^13]: H.B. Fuller Co. at para 26 [^14]: H.B. Fuller Co. at para 27 [^15]: Kerr v CIBC World Markets, 2013 ONSC 7685 (Div. Ct.) at para 67 [^16]: The defendants in their factum and submissions state that they do not do not rely on any delay after June 2021. [^17]: Carioca’s at para 49 [^18]: Carioca’s at para 50 [^19]: Nissar at paras 5, 34, 35 [^20]: Langenecker v Sauvé, 2011 ONCA 803 at paras 5 – 7 [^21]: Langenecker at paras 5 – 6 [^22]: Langenecker at para 7; The second branch of the test was confirmed by the Court of Appeal in Ticchiarelli v Ticcharelli, 2017 ONCA 1 at para 12. See also my decision in Grewel v Peel District School Board, 2023 ONCA 159 which was relied upon by both parties and where I set out the applicable law in more detail at paras 39 to 58. [^23]: Ticchiarelli at para 15 [^24]: As noted above, the defendants do not rely on any delay after June 2021. [^25]: Ticchiarelli at para 15 [^26]: Grewel at paras 63 - 64 [^27]: Ali v Fruci, 2014 ONCA 596 at para 11 [^28]: Langenecker at para 9 [^29]: Ticchiarelli at paras 28 - 29