Court File and Parties

Court File No.: CV-15-00543091 Motion Heard: 2024-08-19 Superior Court of Justice - Ontario

Re: Jennifer Baldasio, Plaintiff And: City of Toronto and 766585 Ontario Inc. c.o.b. Nu-Con Contracting, Defendants

Before: Associate Justice B. McAfee

Counsel: G. Tanner, Counsel, for the Moving Party, the Defendant, City of Toronto A. Cocunato, Counsel, for the Responding Party, the Plaintiff

Heard: August 19, 2024

Endorsement

[1] As set out in the notice of motion, this is a motion brought by the defendant City of Toronto (the City) for an order dismissing this action against the City. In the factum, the City requests an order dismissing the action. On the motion, the City confirms that it relies on Rule 24.01(1)(b) and (c) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[2] The plaintiff opposes the motion.

[3] This action arises as a result of a slip and fall that occurred on January 13, 2014. The plaintiff advised the City of her potential claim on January 22, 2014. The plaintiff’s claim was investigated by the City, certain records were provided, and the plaintiff provided a statement to the City. The City denied the plaintiff’s claim by way of letter dated March 5, 2014.

[4] On December 29, 2015, the plaintiff commenced this action against the City and the Toronto Transit Commission (the TTC).

[5] On or about January 22, 2016, the City served a notice of intent to defend. On or about February 24, 2016, the City served its statement of defence and crossclaim. In its statement of defence, the City pleads that it retained Nu-Con Contracting to perform snow ploughing and salting serves.

[6] By order dated July 19, 2019, Associate Justice Graham added 766585 Ontario Inc. c.o.b Nu-Con Contracting (Nu-Con) as a defendant. Nu-Con was noted in default on April 26, 2023.

[7] The action as against the TTC was dismissed pursuant to the order of Associate Justice Graham dated July 19, 2019.

[8] Both parties argue this motion on the basis that Rule 24.01(1)(b) and/or (c) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 are applicable. No oral submissions were made concerning the specific date when pleadings closed for the purposes of Rule 24.01(1)(c), or the date that was 30 days after the Nu-Con’s default for the purposes of Rule 24.01(1)(b).

[9] In their respective material, both the plaintiff and the City indicate that pleadings closed when Nu-Con was noted in default. Nu-Con was noted in default April 26, 2023. The notice of motion is dated June 21, 2023, which is less than 6 months from the close of pleadings.

[10] It would appear, however, that Nu-Con was not noted in default within 30 days after the default within the meaning of Rule 24.01(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. While the affidavit of service of the amended statement of claim on Nu-Con is not before me, the order of Associate Justice Graham required the claim to be served within 90 days. There is no order before me extending that deadline. Assuming Nu-Con was served within 90 days as ordered, Nu-Con was not noted in default within 30 days of such default.

[11] The parties agree that the applicable test on this motion is set forth by Justice Glustein in Singh v. Braithwaite, 2018 ONSC 3889 (Ont. S.C.J.) at para. 8. The City argues that the delay is inordinate, inexcusable and such that it gives rise to a substantial risk that a fair trial will not be possible because of the delay. The plaintiff concedes that the delay is inordinate. The parties focused their submissions on whether the delay is inexcusable and whether there is a substantial risk that a fair trial will not be possible because of the delay.

[12] In determining this motion, I am also mindful of Rule 1.04(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194:

1.04(1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.

[13] As stated by Justice Weiler in H.B. Fuller Company v. Rogers, 2015 ONCA 173 at para. 27 in the context of an appeal regarding the setting aside of a registrar’s dismissal order:

[27] The court’s preference for deciding matters on their merits is all the more pronounced where delay results from an error committed by counsel. As the court stated in Habib, at para. 7, [O]n a motion to set aside a dismissal order, the court should be concerned primarily with the rights of litigants, not with the conduct of their counsel.” In Marché, Sharpe J.A. stated, 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” (citations omitted).

[14] I am also mindful of the tension between two principles of our civil justice system: the preference to have civil actions decided on their merits and the promotion of timely resolution of actions (H.B. Fuller Company v. Rogers, 2015 ONCA 173 at paras. 25, 27 and 28; Zhang v. Kusnir, 2023 ONSC 6907 (Ont. S.C.J.) at paras 36-38).

[15] There are four main periods of delay: from February 24, 2016, until February 23, 2018; from September 12, 2018, until July 19, 2019; from October 19, 2019, until August 24, 2020; and, from August 24, 2020, until September 9, 2022.

[16] The delay from September 12, 2018, until July 19, 2019, is the period of time in which the plaintiff was bringing a motion to add Nu-Con as a defendant.

[17] The delay from October 19, 2019, until August 24, 2020, is the period of time in which the plaintiff’s first lawyer was winding down his practice and transferring files, including the plaintiff’s file, to other law firms.

[18] The affidavit of N. Brownstone, lawyer, filed on behalf of the plaintiff, deposes that the other periods of delay are a result of lawyer inadvertence of the first two lawyers who acted for the plaintiff.

[19] The plaintiff has also sworn an affidavit in response to this motion. She deposes that she remained in contact with her first and second lawyers between 2015 and 2022, and believed they were continuing to work diligently on her file. She never instructed her lawyers to deliberately delay the matter or otherwise refrain from taking any procedural steps. She deposes that at all material times she intended to continue with this lawsuit.

[20] When the plaintiff’s current lawyer took over the file in September 2022, he requested a telephone call with the City’s lawyer and such a call took place on September 29, 2022. Nu-Con was subsequently noted in default and dates for examinations for discovery were then proposed. On May 9, 2023, the City’s lawyer indicated that she received instructions to request a status hearing. The plaintiff’s current lawyer advised that he was agreeable to a timetable. The City then advised that they intended to bring a motion to dismiss the action for delay.

[21] In Langenecker v. Sauvé, 2011 ONCA 803, Justice Doherty states at para. 9:

[9] 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. As LaForme J. explained in De Marco v. Mascitelli (2001), 14 C.P.C. (5th) 384 (Ont. S.C.J.), at para. 26, explanations 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.

[22] An adequate explanation has been provided for the delay. Part of the delay is attributed to the bringing of a motion to add a party and the first lawyer winding down his practice and transferring the file. The evidence before me is that the balance of the delay is a result of lawyer inadvertence. No delay is the fault of the plaintiff herself. The plaintiff has indicated that she always wanted to proceed with this action. The delay is not inexcusable in the circumstances of this case.

[23] The plaintiff has rebutted any presumption of prejudice. The City had notice of the claim 9 days after the slip and fall and conducted its own investigation soon thereafter. Draft affidavits of documents and schedule A productions have been exchanged.

[24] The City argues that there is actual prejudice. As deposed in the affidavit of C. Henderson, deputy director of litigation at the City, many of the City’s employees involved in the relevant snow ploughing and salting operations have now retired or left the City, including R. Signoretti, the field investigator assigned to the relevant area and whose records are included in the City’s affidavit of documents. However, there is no evidence that any former City employee cannot be located, is unable to give evidence or that there is no other appropriate person who could provide evidence on the matters at issue.

[25] The City relies also relies on the letter from the TTC dated July 19, 2017, wherein the TTC requested a further and better affidavit of documents from the plaintiff. The TTC did not pursue a further and better affidavit of documents from the plaintiff and was released from the action 5 years ago. I was not referred to evidence that the City made a similar request for a further and better affidavit of documents.

[26] I am not satisfied of actual prejudice to the City such that a fair trial of the issues in the litigation will not be possible because of the delay.

[27] Having regard to all of the circumstances of this matter, it is just that the City’s motion to dismiss the action for delay, as against the City or in its entirety, be dismissed.

[28] In the event that the motion is dismissed, plaintiff’s counsel submits that the action could be set down for trial within 6 months. Counsel for the City submits that deadline may be too ambitious, and a more realistic deadline would be 8 months to 1 year. The action shall be set down for trial on or before October 1, 2025.

[29] With respect to costs of the motion, the parties agree that if the motion is dismissed, there shall be no costs of the motion payable to any party. Accordingly, there shall be no costs of the motion payable to any party.

[30] Order to go as follows:

1. The motion is dismissed.
2. The deadline to set the action down for trial shall be October 1, 2025.
3. There shall be no costs of this motion payable to any party.

Released: October 1, 2024 Associate Justice B. McAfee