COURT FILE NO.: CV-13-2628
DATE: 20230203
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Ennin v. BMO et al
BEFORE: Baltman J.
COUNSEL: A. Hussain, for the Plaintiff
A. Fox, for the Defendants Bank of Montreal, Marisa Genua and Jane Doe
R. Squires, for the Defendant York Regional Police Services Board
E N D O R S E M E N T
Overview
[1] The Plaintiff seeks an order restoring this action to the trial list.
[2] The matter arises from an incident on November 9, 2012, when the Plaintiff was detained by police at a BMO branch for investigation of a possible fraud. He alleges the detention was motivated by anti-Black racism.
[3] In sum:
• This matter relates to an incident that occurred over 10 years ago
• It has been 9.5 years since the Statement of Claim was issued
• Over 6 years have passed since the Examinations for Discovery were completed
• The matter was administratively dismissed for delay in May 2019, and then struck from the trial list in July 2020.
[4] For the reasons that follow, I find that the Plaintiff has failed to provide an acceptable explanation for the delay, and that the Defendants have been prejudiced by the delay. The motion is therefore denied.
Factual Background
[5] The action arises out of the detention of the Plaintiff for investigation of possible fraud at a branch of the Bank of Montreal on November 9, 2012.
[6] The Statement of Claim was issued on June 20, 2013. The BMO Defendants delivered their Statement of Defence on July 24, 2013. The Defendant York Regional Police Services Board, incorrectly named in the Statement of Claim as “York Regional Police” (the “YRPSB”), delivered its Statement of Defence on November 14, 2013.
[7] Examinations for discovery of all parties were completed on January 6 and 7, 2016.
[8] On May 14, 2019, almost six years after the action was commenced, the matter was dismissed by the Registrar for delay.
[9] The Plaintiff brought a motion seeking an order setting aside the administrative dismissal. That motion was heard on October 25, 2019, and was opposed by the Defendants. Justice Shaw set aside the dismissal order.
[10] At some point in November or December 2019, the Plaintiff’s original counsel (Tyler Warren) got off the record and the Plaintiff retained his current counsel, Mr. Hussain. Mr. Hussain served and filed the Trial Record on December 23, 2019.
[11] On March 16, 2020, counsel for YRPSB (R. Squires) received a Notice to attend Civil Assignment Court on June 22, 2020 together with a Report of Counsel/Party that was to be completed by the Plaintiff and returned to the Trial Office at least three days before the Assignment Court.
[12] By email dated June 22, 2020, Mr. Squires advised Mr. Hussain that Assignment Court scheduled for this day had either been adjourned or was taking place virtually that morning; however, the parties were unaware of the status as the Trial Scheduling form was not completed by Mr. Hussain and returned to the Court as required. Mr. Squires suggested that the matter may be struck from the List as a result and noted that he had not heard from Mr. Hussain since he took over the matter from Mr. Warren in December 2019.
[13] The matter was struck from the trial list on July 27, 2020. It appears that the Registrar did not serve an order to that effect on the parties, as required under R. 48.14(2).
[14] Mr. Squires sent a further email on March 4, 2021, seeking a reply from Plaintiff’s counsel.
[15] On July 9, 2021, over 18 months since he took over the file, Mr. Hussain advised defence counsel that he would like to move the matter forward and asked the Defendants for their respective positions. Allyson Fox, counsel for the BMO Defendants, and Mr. Squires each replied stating that their respective clients’ positions were as set out in their respective Statements of Defence.
[16] By email dated August 30, 2021, Mr. Hussain advised that he had recently learned that the matter was struck from the trial list, and sought the Defendants’ consent to an order restoring the matter to the trial list. Both Ms. Fox and Mr. Squires replied to Mr. Hussain by email on the same date, stating that they would advise of their clients’ respective positions after having reviewed the Plaintiff’s motion materials.
[17] On November 22, 2021, Mr. Hussain delivered a Motion Record for the within motion, returnable November 30, 2021. However, that motion did not proceed because the Plaintiff’s materials were filed late and therefore rejected. The new date was March 29, 2022, but the motion was again struck because Mr. Hussain failed to confirm the motion. The matter was further rescheduled to September 23, 2022, but struck yet again because Mr. Hussain again failed to properly confirm the motion.
Legal Framework
[18] The sole issue in this motion is whether the action should be restored to the trial list pursuant to Rule 48.11(b), which states that where an action is struck off a trial list, it shall not thereafter be restored to the list except with “leave of the court”.
[19] As set out by the Ontario Court of Appeal in Nissar v. Toronto Transit Commission, 2013 ONCA 361 (“Nissar”) at para. 31, the applicable test is conjunctive, and the onus is on the Plaintiff: for an action to be restored to the trial list under R. 48.11(b), the Plaintiff must demonstrate that a) there is an acceptable explanation for the delay in the litigation and that, if the action was allowed to proceed, the Defendant would suffer no non-compensable prejudice.
[20] In D’Souza v. Brunel International Inc. (ITECC Consulting), 2019 ONCA 339 at para. 8, the Court of Appeal held that the totality of the delay is a factor to be considered when determining if there is an acceptable explanation for the delay. At para 8:
And while the court should not mechanically review each step in an action and require a Plaintiff to explain every period of delay, the overall delay of the Plaintiff in prosecuting the action is a factor that can inform the court’s assessment of whether an acceptable explanation has been provided by the Plaintiff and whether the Defendant will suffer non-compensable prejudice if the action is restored to the trial list [citations omitted]
[21] Where there have been lengthy periods of inaction and little in the way of explanation, courts have been unwilling to restore actions struck from the list: S.I.A.S.I. Trading Limited v. Teplitsky, 2018 ONCA 788, at paras. 17-18.
Analysis
[22] For the following reasons, I find that the Plaintiff fails on both prongs of the test.
a) There is no good excuse for the Plaintiff’s delay
[23] We have no explanation for the delay from the Plaintiff himself. Indeed, there is no evidence that the Plaintiff intended to prosecute this action throughout. There are only two affidavits, one by R. Myre and the other by J. Ara, each of whom is a law clerk working in association with Plaintiff’s counsel. Their affidavits are largely duplicative and fail to adequately explain the delays, for several reasons:
A) They state that their office did not receive any documentation from the court advising that the action had been struck from the list. However, Mr. Squires sent an email to counsel on the day of the Assignment Court warning him of the possible outcome, and received no response.
B) They both make broad claims about how the pandemic impacted communications within their office, but fail to explain in any detail how that prevented counsel from attending Assignment Court or addressing emails from counsel about it.
C) While the affidavits assert that the Plaintiff wanted an in-person trial, that is not an acceptable explanation for the delay, as this did not affect the Plaintiff’s ability to complete the necessary scheduling documents, and the issue of the conduct of the trial was a matter to be dealt with at Assignment Court. The suspension of time periods likewise does not explain the Plaintiff’s failure to complete and return the Notice of Assignment Court.
[24] The Plaintiff points to the mandatory wording of R. 48.14(2), which states that the Registrar “shall” serve an order dismissing the action for delay on the parties. While that may not have been done here, it appears Mr. Hussain did not learn of this until over a year later because he himself was paying no attention to the case. More importantly, he produced no authority suggesting that that omission renders the dismissal order a nullity. On the contrary, the existing jurisprudence indicates it is nothing more than a procedural irregularity: Finlay v. Paassen, 2010 ONCA 204, at paras. 7-15.
[25] The Plaintiff has not provided an acceptable explanation for the delay between December 2019, when he filed the Trial Record, and July 9, 2021, when he reconnected with defence counsel. Nor has he properly explained the delay between July 29, 2021, when Plaintiff’s counsel says he learned that the matter had been struck from the trial list, and September 9, 2021, when Plaintiff’s counsel sought to schedule a motion in the matter. Subsequently, the Plaintiff’s motion was struck from the motions list several times for various reasons, all due to counsel’s failure to follow necessary procedures.
b) The Defendant has been prejudiced by the delay
[26] As noted above, the onus is on the Plaintiff to demonstrate that, if the action was allowed to proceed, the Defendants would suffer no non-compensable prejudice. Other than a bald allegation that there will be “no prejudice” to the Defendants, the Plaintiff has not adduced any evidence with respect to prejudice or lack thereof.
[27] In that way this case is similar to Ever Fresh Direct Foods Inc. v. Jamia Islamia Canada Ltd. 2021 ONSC 1278, aff’d 2022 ONCA 185, where at para. 73 Daley J. observed that “[t]he Plaintiff has offered no evidence whatsoever as to whether relevant documents have been preserved and whether key witnesses are available with detailed recollections of the events in issue, or alternatively that the issues at stake in the lawsuit will not depend on the recollection of witnesses.”
[28] That is particularly relevant here, where the trial will be based almost entirely on eyewitness accounts of what occurred. The longer the delay, the less reliable people’s memories become, and therefore the greater potential for prejudice to the Defendants.
[29] Beyond that, the events giving rise to this action took place more than ten years ago. The claim was issued more than nine years ago, and the discoveries were completed over six years ago. As observed in 1196158 Ontario Inc. v. 62744013 Canada Ltd., 2012 ONCA 544 at para. 43, it becomes increasingly difficult to defend a claim that relates to events that occurred many years ago and that will be even more remote by the time a trial can be held: “Memories fade and even if documents are not lost, their significance becomes shrouded.”
Conclusion
[30] For the reasons set out above, the Plaintiff’s motion is denied. As a result, the action is dismissed.
[31] Based on alternative costs submissions received at the conclusion of the hearing, the Defendant BMO shall recover $4,500 and the Defendant YRPSB shall recover $6,500. Each sum is inclusive of disbursements and HST. Those costs reflect all time and expenses incurred in responding to this motion, including the three previously aborted hearing dates.
[32] As the action is now dismissed, and defence counsel have advised they are seeking costs, they may file those submissions within 15 days. Plaintiff to file responding submissions within 15 days thereafter. The submissions shall not exceed 5 pages double spaced, excluding the Bill of Costs. No reply.
Baltman J.
DATE: February 3, 2023
COURT FILE NO.: CV-13-2628
DATE: 20230203
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Ennin v. BMO et al
BEFORE: Baltman J.
COUNSEL: A. Hussain, for the Plaintiff
A. Fox, for the Defendants Bank of Montreal, Marisa Genua and Jane Doe
R. Squires, for the Defendant York Regional Police Services Board
ENDORSEMENT
Baltman J.
DATE: February 3, 2023