Court File and Parties

COURT FILE NO.: CV-15-542520 DATE: July 24, 2024

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Krystle Oag, Shawna Oag, James Oag, Arlina Lalonde, Frances Oag, Stanley Oag, Ian Scott and Shauna Scott v. Judy Lynch, Chief of Police (Ret.) Bill Lynch, Chief of Police Darryl Pinnell, Officer Terry Hyckle, Officer Aaron Lfraser, Officer Jeff Pallaster, St. Thomas Police Officers Jane and John Doe, and The St. Thomas Police Services Board;

BEFORE: ASSOCIATE JUSTICE C. WIEBE

COUNSEL: Lindsay Rodenburg for Chief of Police (Ret.) Bill Lynch, Chief of Police Darryl Pinnell, Officer Terry Hyckle, Officer Aaron Lfraser, Officer Jeff Pallaster, St. Thomas Police Officers Jane and John Doe, and The St. Thomas Police Services Board (together “the Police Defendants”); Asha James for Krystle Oag, Shawna Oag, James Oag, Arlina Lalonde, Frances Oag, Stanley Oag, Ian Scott and Shauna Scott.

HEARD: July 23, 2024.

Endorsement

1This endorsement reflects the oral order I gave on July 23, 2024.

2There has been no dismissal order in this delayed action. As a result, the Police Defendants brought this motion for a status hearing under Rule 48.14(5), (6) and (7) of the Rules of Civil Procedure seeking an order dismissing this action for delay. At such a status hearing, the plaintiff must show cause why the action must not be dismissed for delay. The test on such a motion is that the plaintiff must prove both that there is an acceptable explanation for the litigation delay, and, if the action is allowed to proceed, the defendants will not suffer non-compensable prejudice; see Beshay v. Labib, 2024 ONCA 186, at paragraph 11. There was reference to Rule 24, namely the dismissal for delay rule; but the focus was on Rule 48.14.

3The underlying action concerns a claim for damages brought by Krystle Oag and family members primarily against the Police Defendants for conducting an alleged negligent and malicious investigation and prosecution of a workplace harassment complaint made against Ms. Oag by the defendant, Judy Lynch, in 2009, a complaint Ms. Lynch later recanted.

4The evidence in the motion shows that the action moved forward reasonably well for three years. The notice of action was issued on December 11, 2015 and the statement of claim on January 11, 2016. The statement of defence of the Police Defendants was served on or about February 24, 2016. Ms. Lynch curiously has never defended and has not been noted in default. The plaintiffs and Police Defendants exchanged productions, and in June, 2017 all parties, including Ms. Lynch but excluding Chief Pinnell, conducted examinations for discovery. Undertakings were given. The plaintiffs completed their undertakings in May, 2018, and the defendants completed their undertakings on March 5, 2019.

5Then there was a hiatus until early 2023, namely four years, when the plaintiffs did little if anything, despite receiving numerous letters from counsel for the Police Defendants asking as to the intentions of the plaintiffs. Finally, on March 29, 2023 Ms. James wrote a letter to the defendants asking whether they would consent to having the action set down for trial. There has been no mandatory mediation. On July 5, 2023 the plaintiffs unsuccessfully tried to set the action down for trial by passing the trial record. The Police Defendants did not consent. Instead, on July 26, 2023 they brought this motion, returnable July 23, 2024.

6The explanations given by the plaintiffs for this four-year delay were indeed thin. They filed an affidavit sworn by a legal assistant, not one sworn by Ms. Oag. The only explanation given for the delay was in the plaintiffs’ factum, not in the affidavit. The first explanation was that Ms. Lynch delayed matters by not defending. I did not accept that explanation as Ms. Lynch could have been noted in default years ago and was not. The second explanation was that the defendants refused to participate in the mandatory mediation. I also did not accept that explanation as it related to the latter part of the delay period when the delay already justified this motion. Also, this assertion was not supported by the evidence.

7The third explanation carried the most weight. It is undisputed that Ms. Oag was incarcerated concerning an unrelated matter on October 24, 2019 and was released on full parole on February 15, 2022. Again, the evidence from the plaintiffs was exceedingly thin as to the impact this had on the litigation. Ms. James made assertions in argument that were not in the evidence: that she did not learn about the incarceration until Mr. Thompson’s letter of February 27, 2020; and that she had difficulty getting instructions from Ms. Oag, her primary client, during this time because of the Covid 19 pandemic and the low access priority she was given by the prison system. But I did give weight to one assertion, namely that during this time the mandatory mediation was impossible given this incarceration. This was not disputed. Since the logical next step in this litigation was the mandatory mediation, I concluded that this was an acceptable explanation for the subject delay up to February, 2022, namely three out of the subject four years of delay. The remaining one-year delay was again poorly explained, but I did not consider that long enough to justify a dismissal subject to the issue of prejudice.

8Concerning prejudice, I found that the plaintiffs had strong evidence. It is indeed the case that after the period mandated by Rule 48.14 has passed there is a presumption of prejudice to the defendants; see Rodger v. London Hydro Inc., 2023 ONCA 578, at paragraph 9. In this case, with the six-month Covid 19 extension imposed by the provincial government in 2020, that period ended in June, 2021. However, I found that that the plaintiffs rebutted that presumption of prejudice. They showed that all relevant documents are produced and are a part of the record. They showed that the key witnesses are the parties and that their memories are captured by the transcripts of the discoveries conducted in 2017. These transcripts are available. They showed that all of the key witnesses are still available for trial. I accept that two of the Police Defendants have retired; but their whereabouts are surely still known, and both can be summoned to trial. As a result, I found that, despite the delay, a fair trial is still possible.

9Therefore, considering the totality of the evidence, I decided to dismiss the motion. I also decided not to award costs of the motion. I advised Ms. James that, despite her clients’ success, they did not deserve costs given the exceedingly poor quality of the plaintiffs’ evidence explaining the delay. That made this a close motion.

10I then spent time with counsel preparing a timetable order for the remaining interlocutory steps. I ordered the following:

• that the defendant Ms. Lynch be noted in default on or before July 31, 2024,
• that the mandatory mediation take place on or before September 30, 2024, and
• that this action be set down for trial on or before October 31, 2024.

11The mediation deadline can be altered on consent, but the set down deadline which can only be altered by court order.