Court File and Parties
COURT FILE NO.: CV-16-564048
MOTION HEARD: 20230928
REASONS RELEASED: 20240111
SUPERIOR COURT OF JUSTICE – ONTARIO
BETWEEN:
ROBERT SHUTTLEWORTH, SHUTTLEWORTH SPECIALTY SERVICES INC. and LILY LIGHTING LIMITED
Plaintiffs
- and-
MARK STEPHENSON
Defendant
BEFORE: ASSOCIATE JUSTICE McGRAW
COUNSEL: A. Wygodny Email: awygodny@wagnersidlofsky.com -for the Defendant
R. Shuttleworth Email: shuttlespace@gmail.com
- Plaintiffs, Self-Represented
REASONS RELEASED: January 11, 2024
Reasons for Endorsement
I. Overview
[1] This is a motion by the Defendant to dismiss this action for delay under Rule 24.01.
II. Background
[2] This action arises from the lease of a garage (the “Garage”) located at 50 McGee Street, Toronto by the Plaintiff Robert Shuttleworth from the Defendant (the “Lease”). The Plaintiffs used the Garage for storage and product development. The Lease was originally for one year commencing May 1, 2008 and extended by agreement dated April 9, 2009 for a five-year term ending April 30, 2014. The corporate Plaintiffs were not parties to the Lease.
[3] After the Lease expired on April 30, 2014, Mr. Shuttleworth did not vacate the Garage notwithstanding numerous written requests from the Defendant. Mr. Shuttleworth acknowledges receiving a letter from the Defendant dated October 4, 2014 requesting that he vacate the Garage by November 1, 2014. He did not do so and on November 12, 2014 the Defendant had the locks changed. Mr. Shuttleworth also acknowledges receiving a second letter from the Defendant dated November 14, 2014 which, among other things, requested that he vacate the Garage by November 30, 2014 and make arrangements to remove the contents and clean up the Garage failing which the contents would be removed. Mr. Shuttleworth did not do so.
[4] The Plaintiffs allege that contrary to a meeting between Mr. Shuttleworth and the Defendant on November 5, 2014, the Defendant unlawfully entered the Garage and changed the locks. They further allege that the letters were vague, they were only give 24 hours to remove 20-30 tonnes of items and not given a reasonable opportunity to recover any materials or equipment some of which they believe were given to a competitor. The Plaintiffs commenced this action by Notice of Action issued on November 14, 2016. The Plaintiffs did not issue a Statement of Claim and subsequently served a Notice of Motion on February 28, 2018 to extend the time to file and serve a Statement of Claim. By Reasons For Decision of Master McAfee (as she then was) dated June 14, 2018 (Shuttleworth v. Stephenson, 2018 ONSC 3764) the time to serve a Statement of Claim was extended until July 30, 2018 with the Plaintiffs ordered to pay costs of $500. The Plaintiffs served their Statement of Claim on July 27, 2018. The Plaintiffs claim damages of $1,000,000 for tools, supplies, inventory, intellectual property, lost time, loss of funded research projects, damages to business causing both corporate Plaintiffs to fail; psychological suffering and punitive damages.
[5] On August 14, 2018, the Defendant delivered his Statement of Defence and Counterclaim. In the Counterclaim, the Defendant claims rental and hydro arrears of $4.059.50 and $150,000 in damages for clean-up costs, City violations, locksmith charges, disposal of refuse and damage to the Garage. On September 15, 2018, the Plaintiffs served their Reply and Defence to Counterclaim.
[6] On December 3, 2018, Mr. Shuttleworth emailed Defendant’s counsel and requested mediation. Defendant’s counsel advised Mr. Shuttleworth that the Defendant would not agree to mediation until the Plaintiffs delivered their Affidavit of Documents. On December 27, 2018, Mr. Shuttleworth wrote again to Defendant’s counsel to request that the parties attend mediation. Defendant’s counsel again advised Mr. Shuttleworth that that the Defendant would not proceed to mediation until the Plaintiffs provided their Affidavit of Documents. Mr. Shuttleworth advised that he would assemble the documents. However, the Plaintiffs took no further steps and did not communicate again with Defendant’s counsel until May 16, 2023 when Mr. Shuttleworth wrote to the mediation coordinator requesting that this matter “be moved to the Mediation phase”. Defendant’s counsel responded the same day to advise that the Defendant objected to scheduling mediation and intended to bring a motion dismissing this action for delay. In early June 2023, the Defendant requested Mr. Shuttleworth’s availability for this motion but he did not respond. The Defendant brought this motion on June 9, 2023.
[7] The Plaintiffs did not serve or file any responding materials until the day before the return of this motion. The Plaintiffs’ materials consist of a Factum, some individual documents and no affidavit. The Defendant waived his right to cross-examine the Plaintiff on his short-served materials and agreed to accept the Plaintiffs’ materials in the form filed and their explanation for the delay as uncontroverted. The Defendant also advised that if the court determines that the action should be dismissed he consents to the dismissal of his Counterclaim.
III. The Law and Analysis
[8] For the reasons that follow, I dismiss this action.
[9] Rule 24.01(1) provides that a defendant who is not in default under the Rules or an order of the court may move to have an action dismissed for delay where, among other grounds, the plaintiff has failed to set the action down for trial within six months after the close of pleadings.
[10] Dismissing an action for delay is a severe remedy which denies a plaintiff the adjudication of their claim on the merits, however, sometimes it is the only order that can adequately protect the integrity of the civil justice process and prevent an adjudication on the merits that is unfair to the defendant (Langenecker v. Sauve, 2011 ONCA 803 at para. 3). Accordingly, a dismissal motion requires a careful balancing between efficiency and deciding disputes on their merits:
“ ....On the one hand, the Rules of Civil Procedure need to be enforced in a way that ensures timely and efficient justice, in the interests of plaintiffs, defendants, and society in general. On the other hand, society in general, and the parties, have an interest in the resolution of disputes on their merits and in the availability of flexibility to avoid potentially draconian results, by providing the opportunity for parties to offer a reasonable explanation for delay when it takes them beyond established timelines.” (Kara v. Arnold, 2014 ONCA 871 at para. 9).
[11] In this regard, the Court of Appeal has stated the preference that matters be resolved on their merits:
“Expeditious justice must be balanced with the public interest in having disputes determined on their merits. Where, despite the delay, the defendant would not be unfairly prejudiced should the matter proceed for resolution on the merits, according the plaintiff an indulgence is generally favoured.” (D’Alimentation Denis Theriault Ltee v. Giant Tiger Stores Ltd., 2007 ONCA 695 at para. 34)
[12] Master Graham (as he then was) summarized the relevant considerations on a Rule 24.01 motion in Szpakowsky v. Tenenbaum, 2017 ONSC 18:
(1) To dismiss an action for delay, the court must be satisfied that the plaintiff's default has been intentional and contumelious, or that there has been inordinate and inexcusable delay for which the plaintiff or his lawyers are responsible resulting in a substantial risk that a fair trial will not be possible. (Armstrong v. McCall, 2006 17248 (ON CA), [2006] O.J. No. 2055 (C.A.), Langenecker v. Sauve, 2011 ONCA 803, [2011] O.J. No. 5777 (C.A.), Francis v. Peel (Regional Municipality) Police, [2015] O.J. No. 5001 (SCJ))
(2) A dismissal on the basis of intentional and contumelious delay would be warranted in cases "in which the delay is caused by the intentional conduct of the plaintiff or his counsel that demonstrates a disdain or disrespect for the court process." (Langenecker, supra, para. 6)
(3) The plaintiff is responsible for moving the action along. (Wallace v. Crate's Marine Sales Ltd., 2014 ONCA 671, [2014] O.J. No. 4606 (C.A.) at para. 18)
(4) Any delay in the prosecution of an action requires an explanation. The onus rests with the plaintiff to show that the delay was not intentional. In the absence of an explanation from the plaintiff for the delay, it is to be presumed that the delay was intentional. (Berg v. Robbins, [2009] O.J. No. 6169 (Div. Ct.) at para. 13)
The onus is on the plaintiff to rebut the presumption of prejudice arising from the unexplained delay by showing that documents have been preserved, and that the issues in dispute do not require the recollection of witnesses, or that necessary witnesses are available with detailed recollection of events. (Berg, para. 14)
(5) The requirement that the delay be "inexcusable" requires a determination of the reasons for the delay and an assessment of whether those reasons afford an adequate explanation for the delay. . . [E]xplanations that are "reasonable and cogent" or "sensible and persuasive" will excuse the delay at least to the extent that an order dismissing the action would be inappropriate.
In assessing the explanations offered, the court will consider not only the credibility of those explanations and the explanations offered for individual parts of the delay, but also the overall delay and the effect of the explanations considered as a whole. (Langenecker, supra at paragraphs 9 and 10)
(6) An inordinate delay after the cause of action arose or after the passage of a limitation period gives rise to a presumption of prejudice in which case the defendant need not lead actual evidence of prejudice and the action will be dismissed for delay unless the plaintiff rebuts the presumption. The plaintiff's onus is to persuade the court with convincing evidence that there is no substantial risk that a fair trial is not possible. (Armstrong, supra and Woodheath Developments Ltd. v. Goldman, 2003 46735 (ON SCDC), [2003] O.J. No. 3440)
(7) Courts may dismiss actions for delay even when the relevant rules do not mandate it. A court has inherent jurisdiction to control its own process, which includes the discretionary power to dismiss an action for delay. The power of a superior court to dismiss an action for delay is not limited to that conferred by any specific Rules of Civil Procedure, but also flows from the inherent power of the court to prevent an abuse of its own process. (Marché D'Alimentation Denis Thériault v. Giant Tiger Stores Ltd., 2007 ONCA 695 at paragraph 24, Wallace, supra at para. 21)
As stated in Wallace at para. 22 "There comes a time, in short, when enough is enough, and the civil justice system will no longer tolerate inordinate and inexplicable delay. A court may then eject the action as an exercise of its inherent jurisdiction, whether or not the relevant rules expressly mandate it." (Szpakowsky at para. 19)
[13] While I cannot conclude that the Plaintiffs’ delay was intentional or contumelious, I am satisfied that there has been inordinate and inexcusable delay for which the Plaintiffs are responsible resulting in a substantial risk that a fair trial will not be possible (Zaatar v. Aviva, 2018 ONSC 2871 at para. 19; Ticchiarelli v. Ticchiarelli, 2017 ONCA 1 at para. 15; Langenecker at para. 7).
[14] The inordinance of the delay is measured by reference to the length of time from the commencement of the proceeding to the motion to dismiss (Langenecker at para. 8; Ticchiarelli at para. 15). In my view, the Plaintiffs’ delay in moving this action forward has been inordinate. Over 8 years passed between the filing of the Notice of Action on November 14, 2014 and the commencement of this motion on June 9, 2023. This included the initial period of delay of approximately 15 months before the Plaintiffs sought the Extension Order so that they could issue and serve a Statement of Claim. It has been over 4 years since the court granted the Extension Order on June 14, 2018 and the Plaintiffs served their Statement of Claim on July 27, 2018. All of these time periods take into account the 6-month suspension during the pandemic The Plaintiffs have not delivered their Affidavit of Documents and from December 27, 2018 to May 16, 2023 did not take any steps or communicate at all with the Defendant’s counsel.
[15] Determining whether the delay is inexcusable requires an examination of the reasons for it and whether an adequate explanation which is "reasonable and cogent" or "sensible and persuasive" has been provided (Langenecker at paras. 9-10; Ticchiarelli at para. 16). In determining whether the delay has been unreasonable, the court should consider the issues raised by the case, the complexity of the issues, the explanation for the delay and all relevant surrounding circumstances (Alexander v. Rosedale United Church, 2010 ONSC 4224 at para. 57). The court will consider not only the explanations offered for individual parts of the delay but also the overall delay and the effect of the explanations considered as a whole to determine if the delay can be excused, at least to the extent that an order dismissing the action would be inappropriate (Langenecker at paras. 9-10; Ticchiarelli at para. 16).
[16] I am not satisfied that the Plaintiffs have provided an adequate or reasonable explanation for the delay and therefore I find that the Plaintiffs’ delay in moving this action forward is inexcusable. Mr. Shuttleworth states that since the commencement of this action on November 14, 2016, he has been pursuing these proceedings with very limited resources while under extreme duress due to numerous personal and health issues. These include the deaths of his mother, father and brother; the loss of his capacity to conduct business and generate income due to the alleged conduct of the Defendant including the disposal of his business assets; health issues including cancer and mobility issues requiring surgeries and treatments and other conditions; homelessness for almost 5 years; the inability to access documents and publishing resources in libraries due to the pandemic and court office renovations; the theft of Mr. Shuttleworth’s main computer containing all of his development software and digital productions for over 20 years; and his inexperience with legal matters and reliance on inaccurate legal advice.
[17] While I am empathetic to Mr. Shuttleworth’s circumstances since 2016, I cannot accept that his explanation is adequate or reasonable largely on the basis that the Plaintiffs took no steps in the litigation and unilaterally held this action in abeyance for over 4 years. A party is not permitted to hold an action in abeyance without the other parties’ knowledge and consent or by court order (Koepcke v. Webster, 2012 ONSC 357 at paras. 28-30).
[18] Mr. Shuttleworth requested mediation on two occasions in December 2018. Defendant’s counsel advised him both times that the Defendant could not agree to mediate until the Plaintiffs delivered their Affidavit of Documents. This was a reasonable and common request given that the exchange of documents helps to ensure that mediation is conducted with some context and has a better chance of success. Mr. Shuttleworth did not communicate with Defendant’s counsel or take any steps until he unilaterally requested mediation approximately 4.5 years later in May 2023. Mr. Shuttleworth could have communicated with Defendant's counsel to advise of his circumstances and inability to move the action forward, responded to counsel’s requests for documents or proposed a timetable. Had some documents been provided, the Defendant may have agreed to mediate. It was also open to the Plaintiffs to bring a motion to stay the action or to seek case management. I cannot accept that it was reasonable for the Plaintiffs to not communicate at all with the Defendant for over 4 years. In these circumstances, I adopt the reasoning of Master Muir in Business Development Bank of Canada v. I Inc., 2013 ONSC 1749:
“17 However, even if I accept all of that as being a reasonable approach to dealing with these claims, it remains my view that it was nevertheless unacceptable for the plaintiff to simply let this action sit without doing anything. A number of options were available to the plaintiff. It could have attempted to reach an understanding with Papagni that this action would be held in abeyance while the plaintiff's other issues were dealt with. If Papagni resisted such an approach, the plaintiff could have sought a stay of this action from the court pursuant to section 106 of the Courts of Justice Act, R.S.O. 1990, c. C.43. The plaintiff did neither of those things. Instead, it made a unilateral decision to hold this matter in abeyance without ever advising Papagni of its intention to do so. I agree with Master Dash's observations in Koepcke at paragraph 30 where he states as follows:
[T]he decision whether to hold the action in abeyance is one that must be made with the knowledge of the defendant and either with the defendant's consent or by order of the court.
18 In my view, it was not reasonable for the plaintiff to make the deliberate decision to hold this action in abeyance without as much as advising Papagni of its intention to do so. The party who commences litigation bears the primary responsibility under the Rules for the progress of the action. "The initiating litigant generally suffers the consequences of a dilatory regard for the pace of the litigation". See Wellwood v. Ontario (Provincial Police), 2010 ONCA 386 at paragraph 48. It was incumbent upon the plaintiff to at least do something to advance this claim or otherwise keep Papagni apprised of why the action remained in a holding pattern. The plaintiff is a very sophisticated organization represented by capable counsel. There is simply no excuse for its two years of inaction.”
[19] Mr. Shuttleworth’s personal circumstances and his right to have to his claim tried on the merits must be balanced with the Defendant’s right to not have a significant claim hanging over his head for an indefinite period of time. The Plaintiffs are advancing a significant claim of $1,000,000 plus punitive damages against the Defendant personally in which they make serious allegations of unlawful and improper conduct. The claim has been outstanding for over 7 years during which it has not moved past the pleadings stage. Given how long this significant claim has lingered, Sharpe J.A.’s comments in 1196158 Ontario Inc. are relevant to balancing the parties’ respective interests:
“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 timelines will be enforced. "Litigants are entitled to have their disputes resolved quickly so that they can get on with their lives" and "[d]elay multiplies costs and breeds frustration and unfairness": Marché, at para. 25; see, also, Hamilton, at para. 21.” (1196158 Ontario Inc. at para. 44).
[20] Unlike the plaintiff in Business Development Bank, Mr. Shuttleworth is a self-represented litigant who has experienced some difficulty in navigating the court system. I am also mindful of his personal hardships and the impact of the pandemic. However, it is unacceptable that Mr. Shuttleworth did not even take the minimal step of communicating with the Defendant’s counsel for over 4 years. Given the Plaintiffs’ complete absence of any communication and “radio silence”, it was reasonable for the Defendant to believe that this action was “dead on the vine” (1196158 Ontario Inc at paras. 27-30; Unlimited Motors Inc. v. Automobili Lamborghini Spa, 2019 ONSC 142 at paras. 10-12).
[21] Determining whether there is a substantial risk that a fair trial is no longer possible is directed at the prejudice caused by the delay to the defendant’s ability to put its case forward for adjudication on the merits (Langenecker at para. 11). Inordinate delay generates a presumption of prejudice which is inherent in long delays as memories fade, witnesses become unavailable and documents are lost such that the longer the delay the stronger the inference of prejudice (Langenecker at para. 11; Ticchiarelli v. Ticchiarelli, 2017 ONCA 1 at para. 28). The plaintiff bears the onus of rebutting the presumption of prejudice (Cardillo v. Willowdale Int’l Contracting Ltd., 2020 ONSC 2193 at para. 38). It is also open to a defendant to lead evidence of actual prejudice which may also form the basis for dismissal (Ticchiarelli at para. 29; Cardillo at para. 38). Actual prejudice is any prejudice which would impair the Defendants’ ability to defend the action resulting from the Plaintiffs’ delay, not due to the sheer passage of time (Carioca’s at para. 57; H.B. Fuller Company et al. v. Rogers (Rogers Law Office), 2015 ONCA 173 at para. 37)
[22] The unavailability or death of key witnesses, the loss of material documents and the loss of opportunities to conduct a proper investigation may constitute actual prejudice (1196158 Ontario Inc. v. 6274013 Canada Ltd., 2012 ONCA 544, at paras. 31, 41-43). Prejudice is inherent in long delays as memories fade and fail, witnesses become unavailable, and documents and other potential exhibits are lost giving rise to a presumption of prejudice due to concerns of trial unfairness (Langenecker at para. 11; DK Manufacturing Group Ltd. v. MDF Mechanical Limited, 2019 ONSC 6853 at para. 28; 1196158 Ontario Inc. at para. 42).
[23] Given the significant period of inactivity and delay, I conclude that a strong presumption of prejudice arises (Langenecker at para. 11). In my view, the Plaintiffs have not rebutted this presumption of prejudice and there is actual prejudice giving rise to a substantial risk that a fair trial will not be possible. The Plaintiffs have not provided any evidence regarding the preservation of documents or the availability of witnesses which is especially important here where there is a strong presumption of prejudice (Unlimited Motors at paras. 20-26; DK Manufacturing at para. 43-44). Mr. Shuttleworth concedes that he has lost some relevant documents but also states that he has additional documents which he has not produced to the Defendant or filed with the court. He was unable to provide any details regarding the lost or potential documents but states that he would require 30 days to locate them. He has also not proposed a timetable for this action were this motion to be dismissed but advises again that he will agree to early mediation. In my view, this is wholly insufficient in the face of the significant delay and prejudice. In the present circumstances, it gives rise to a substantial risk that the Defendant’s ability to defend himself and the court’s ability to fairly adjudicate this matter would be impaired.
[24] In my view, in light of the significant delay and actual prejudice the proper balancing of the parties’ rights and the interests of justice require this action to be dismissed.
IV. Disposition and Costs
[25] Order to go dismissing this action.
[26] If the parties are unable to agree on the costs of this motion, they may file written costs submissions with me (not to exceed 3 pages, excluding Costs Outlines) on a timetable to be agreed upon by the parties.
Released: January 11, 2024
Associate Justice McGraw