Court File and Parties
COURT FILE NO.: CV-12-466208 DATE: December 27, 2024
Superior Court of Justice - Ontario
RE: Carl Filipazzo v. Carmela Mengarelli;
BEFORE: ASSOCIATE JUSTICE C. WIEBE
COUNSEL: Evan Kopiak for Carmela Mengarelli; Corey R. Leblanc for Carl Filipazzo;
HEARD: November 14, 2024.
Reasons for Decision
1The defendant, Carmela Mengarelli, brought this motion on November 14, 2022, originally made returnable February 15, 2023, for an order dismissing this action for delay and non-compliance with court orders. The motion was adjourned many times and was finally argued two years later on November 14, 2024 after Mr. Filipazzo finally got a lawyer.
2The following are the grounds for the claimed dismissal motion:
- there was inordinate, inexcusable and prejudicial delay by the plaintiff;
- the plaintiff did not comply with the timetable order of Master Sugunasiri (as she then was) dated April 5, 2017 as he failed to comply with all of his 15 discovery undertakings in 60 days, an obligation that remains outstanding;
- the plaintiff did not comply with the order of Justice Stinson at the pretrial conference on March 4, 2020 requiring that the plaintiff produce all relevant and available financial documentation supporting his income loss claim, an order that continues to be not complied with;
- the plaintiff did not comply with the removal order of Master Short dated February 19, 2021 as he failed to appoint a lawyer or serve a notice of intention to act in person within 90 days;
- the plaintiff failed to move to be restored to the trial list within 30 days after being struck off the trial list on June 21, 2021, and he remains in that state.
Background
3The following facts were gleaned from the motion material and are not in dispute. This action concerns a motor vehicle accident that happened in a parking lot on November 8, 2011, 13 years ago. Mr. Filipazzo sustained a right fibular head fracture.
4Retaining a lawyer, Mr. Filipazzo commenced this action for damages on October 24, 2012. Pleadings were closed on April 5, 2013. The defendant triggered a jury trial. On October 2, 2013 the plaintiff was discovered and gave 15 undertakings, some of which he did not comply with. On October 21, 2015 there was an order removing the plaintiff’s first lawyers.
5In March, 2017 Mr. Filipazzo hired the Gillo Law firm. On a defendant’s dismissal motion on April 5, 2017 Master Sugunasiri (as she then was) issued a timetable order requiring that Mr. Filipazzo answer his remaining undertakings by June 5, 2017. He did not do so. However, he did set the action down for trial on September 17, 2017 in accordance with the timetable order.
6The action proceeded to a pretrial conference with Justice Stinson on March 4, 2020. His Honour ordered the plaintiff to disclose financial records to support his income loss claim. That did not happen. The trial, scheduled for June, 2020, was suspended due to the Covid-19 pandemic. On February 21, 2021 the Grillo Law firm obtained a removal order.
7At the Trial Scheduling Court on June 21, 2021, the action was struck from the trial list. There was confusion as Mr. Filipazzo and a paralegal were in attendance but for some reason did not present themselves. Thereafter Mr. Filipazzo did nothing to move the action forward.
8On November 14, 2022, the defendant brought this motion returnable February 16, 2023 for a dismissal order. The court endorsements provide a history of this motion. On February 16, 2023 Mr. Filipazzo asked Associate Justice Robinson for an adjournment to allow him to get a lawyer, a request that was not opposed. It was granted. The defendant then obtained a return date for this motion of May 31, 2024.
9The motion came before me on May 31, 2024. Mr. Filipazzo was there with an assistant, Fred Capra, as was counsel for the defendant. Mr. Filipazzo said that he had approached 8 to 10 lawyers, all of whom turned him down. He admitted not having read Associate Justice Robinson’s endorsement or the rules he recommended be read. Mr. Filipazzo said he wanted to continue the action; but it was clear to me that he was incapable of representing himself as he appeared confused by the process. He wanted another adjournment to get a lawyer. I granted him an adjournment to August 27, 2024 and imposed a deadline for his responding motion record.
10On August 27, 2024, Mr. Filipazzo appeared, this time unaided. There was no responding record. Mr. Filipazzo admitted not having read my endorsement and not knowing what a motion record contains. He went on about his many unsuccessful attempts to get a lawyer. I observed again how incapable he was at representing himself. He asked for yet another short adjournment to get a lawyer or reach a settlement. I adjourned the motion to September 27, 2024 on the basis that I would dismiss the action if there was no settlement and Mr. Filipazzo did not have a lawyer.
11On September 27, 2024, Mr. Filipazzo finally had a lawyer, Mr. Leblanc, who was retained ten days earlier. I adjourned the motion to November 14, 2024 to allow Mr. Filipazzo properly to prepare and serve responding material with the assistance of counsel.
12In advance of the motion date (November 14, 2024) the defendant filed an affidavit sworn by her lawyer, Heather Vaughan, on February 6, 2023 and an affidavit sworn by Ms. Vaughan on August 23, 2024. On November 7, 2024, a week before the motion, Mr. Filipazzo served a one-page, responding affidavit sworn by his new lawyer, Mr. Leblanc.
13Two late affidavits were then served: on November 8, 2024 the defendant served a two-page, responding affidavit sworn by Ms. Vaughan on November 8, 2024 and uploaded November 11, 2024; on November 12, 2024 (two days before the motion) the plaintiff served a four-page affidavit (with four exhibits) sworn by Mr. Filipazzo on that day and uploaded as sur-reply. I denied the admission of these last two affidavits for these reasons: the third Vaughan affidavit was late and there was no explanation for this tardiness; the Filipazzo affidavit was also quite late, was served as sur-reply without leave and was provided with no explanation for this tardiness.
Dismissal for Delay
14With his hiring of Mr. Leblanc, Mr. Filipazzo finally complied with the removal order of Master Short, albeit 3.5 years late and with considerable indulgence from the court. I will, therefore, focus on the grounds relied upon other than Rule 15.04.
15Because Mr. Leblanc committed in oral argument on behalf of Mr. Filipazzo to move to restore the action to the trial list and to comply with his production obligations under the Sugunasiri timetable order and the Stinson production order all within 60 days from November 14, 2024, I will focus my attention on the following issues: whether Mr. Filipazzo’s non-compliance with the interlocutory production orders of Master Sugunasiri (as she then was) and Justice Stinson merited dismissal of the action under Rule 60.12; and whether Mr. Filipazzo’s general delay of this proceeding merited a dismissal order under Rule 24.
16The tests for dismissal due to belated compliance with interlocutory orders under Rule 60.12 and due to the relevant test for delay under Rule 24.01 are very similar. Under Rule 60.12 belated compliance with interlocutory orders should lead to dismissal where the plaintiff fails to show two things: an acceptable explanation for the delay; and no non-compensable prejudice to the defendant if the action continued; see Van Aert v. Sweda Farms Ltd. (Best Choice Eggs), 2018 ONCA 831 at paragraph 7.
17Under 24.01 the established authorities specify that there are two circumstances under which a court will dismiss an action for delay under that rule: where the plaintiff’s delay is intentional and contumelious; and where the plaintiff’s delay is inordinate and inexcusable resulting in a substantial risk that a fair trial is not possible; see Szpakowsky v Tenenbaum, 2017 ONSC 18 at paragraph 19. The parties agree that the second test under Rule 24.01 applies to this case, not the first one.
18Because of this overlapping between the two rules, I will deal with the motion under Rule 24.01. That is in fact how the motion was argued. The onus rests on the plaintiff to meet the test.
Length of Delay
19Concerning the first issue, was the plaintiff’s delay inordinate? Yes, it was. That was not seriously disputed. Whether a delay is inordinate is measured by the time between the beginning of this action and the motion to dismiss; see Tsivaras v The Cadillac Fairview Corporation, 2023 ONSC 3973 at paragraph 8. Mr. Filipazzo commenced this action on October 24, 2012. Pleadings closed in April, 2013. There were discoveries in late 2013. This motion was commenced by the defendant in November, 2022. The relevant period of delay is, therefore, 10 years, which is inordinate delay; see Opara Law PC v. 1171328 Ontario Ltd., 2024 ONSC 6113 at paragraph 20.
20I note also that there were huge gaps in this litigation where nothing happened. This was particularly the case after Mr. Filipazzo lost his first lawyers on October 21, 2015, a 17-month delay, and after he lost his second lawyers on February 21, 2021, a 21-month delay before this motion was brought and a 43-month delay until a new lawyer was hired. The 17-month and 21-month delays represent just over 3 years out of the 10-year relevant period of delay.
21There were also time periods when Mr. Filipazzo had a lawyer and he did not advance the litigation. Such periods were after the discoveries in late 2013 and after the action was set down for trial on September 17, 2017.
22Mr. Filipazzo did set the action down for trial on September 17, 2017, almost five years after its commencement. But this was done improperly as Mr. Filipazzo had not complied with the consent Sugunasiri timetable order: he had not answered his outstanding undertakings and had not had a mandatory mediation. This impropriety was compounded by Mr. Filipazzo subsequent failure to comply with Justice Stinson’s pretrial production order, and his failure to move to restore the action to the trial list after it was struck from the trial list on June 21, 2021. I view this attempt by Mr. Filipazzo to move the case prematurely to trial as essentially an attempt to avoid his production and discovery obligations. It does not diminish the inordinance of his delay.
Excuse for Delay
23Concerning the second issue, was there an adequate explanation for this inordinate delay? No, there was not. There was no evidence from the plaintiff which even attempted to explain this delay, much less explain it adequately. The affidavit sworn by Mr. Leblanc did not even address this issue.
24In argument, Mr. Leblanc argued that a major reason for the delay was that Mr. Filipazzo was cut adrift by his lawyers and was “left twisting” by them for huge periods of the delay with no direction. He indicated that Mr. Filapazzo was incapable of running his case by himself and needed direction. This argument had some initial sway with me given what I witnessed during this motion as described above. As stated earlier, I found that Mr. Filipazzo was consistently incapable of properly representing himself. He seemed lost and confused much of the time. He admitted repeatedly not reading the legal documents concerning this motion, even when he was instructed to do so. He admitted not knowing what a responding motion record in this motion should contain.
25But, in the end, I decided not to be swayed by Mr. Leblanc’s argument and my impressions. The argument and my impressions were not evidence. Furthermore, after hiring a lawyer, Mr. Filipazzo did not take the position in this motion that he was disabled in such a way as to be incapable of finding and instructing a lawyer or running this case. He filed no evidence (such as expert evidence) showing that he had limitations that explained his inordinate delay. In fact, there was evidence that Mr. Filipazzo ran a business at one point, suggesting that he has a level of sophistication and experience that should have equipped him to deal with this motion and this case. Also, there was no evidence of the alleged trials and tribulations Mr. Filipazzo repeatedly said he had in trying to get a lawyer. There should have been an affidavit sworn by Mr. Filipazzo, filed in time, showing in detail this entire saga, and indeed explaining the entire delay in this case. There was not.
26Also, Mr. Leblanc’s argument did not deal with the other delays in this case, such as Mr. Filipazzo’s persistent failure to comply with his outstanding undertakings and the production order of Justice Stinson. These events happened while Mr. Filipazzo had a lawyer. They were not explained. In short, there was no explanation from Mr. Filipazzo for his delay.
Prejudice
27Finally, is there a risk that the defendant is prejudiced? The previous authority framed this final issue as whether the plaintiff’s inordinate delay prejudiced the defendant’s ability to put its case forward for adjudication on the merits; see Langenecker v. Sauvé, 2011 ONCA 803 paragraph 11. The onus rested on the plaintiff to show that this risk of prejudice did not exist. Under this authority, a finding of inordinate delay created a rebuttable presumption of such prejudice that the plaintiff must overcome; see Opara Law PC, supra, at paragraph 25. There was also authority for the proposition that the defendant has an evidentiary burden to put forward positive evidence that he or she has been prejudiced; see Tsivaras, supra, paragraph 20.
28Recently, the Court of Appeal in a decision in Barbiero v. Pollack, 2024 ONCA 904, released on December 16, 2024, ended this approach of “rebuttable presumption of prejudice” due to inordinate delay. The Court held that the Langenecker approach focused wrongly on justifying delay and not on achieving an expeditious determination of civil proceedings. It stated this in paragraph 15: “To the extent that Langenecker denies that the passage of time, on its own, can constitute sufficient prejudice to dismiss an action for delay and not simply a rebuttable presumption of prejudice, it should not be followed.”
29I note that, while the Court articulated this new test, it proceeded to consider whether the plaintiff had established whether the defendants were in fact prejudiced by what the Court found was an inordinate litigation delay of 21 years. Therefore, the requirement of proving prejudice was not removed by the finding of inordinate delay. In my view, this case stands for the proposition that, where there has been a finding of inordinate delay by the plaintiff, the plaintiff has the exclusive burden to “show cause” why the action should not be dismissed because of that delay itself. This should be a heavy burden requiring detailed proof that the trial can still be fair along with a workable plan for the expeditious conclusion to the case. The burden may vary depending on the length of the inordinate delay.
30The parties did not have the opportunity to review and argue the Barbiero decision. I considered recalling counsel to address the case. But I decided against doing so as I find that Mr. Filipazzo failed to meet the old test as well as the new Barbiero test. He provided simply no evidence concerning the issue of prejudice. The Leblanc affidavit simply stated that Mr. Filipazzo committed to answering his outstanding undertakings in 60 days from November 14, 2024. There was no evidence as to what these undertakings were, what documents and evidence answered these undertakings and whether these documents were still in existence. There was no evidence from Mr. Filipazzo as to what the issues at trial would be, what witnesses would be called, whether these witnesses are still available to give evidence, whether the evidence of these witnesses has been preserved in some way, what documents are required for trial and whether these documents still exist.
31I adjourned this motion a fourth time on September 27, 2024 to give Mr. Filipazzo essentially six weeks (eight weeks from the date Mr. Leblanc was retained) to prepare and serve a proper responding motion record with the assistance of his new lawyer. What he served in the end could have been prepared in less than a day. This cavalier attitude towards a motion of this gravity, given Mr. Filipazzo’s inordinate litigation delay, cannot be tolerated.
32The defendant provided evidence of her prejudice. This revolved around the provision, or more accurately lack of provision, of documents to substantiate Mr. Filipazzo’s medical condition and income loss claim. There have been no medical reports from the plaintiff since 2020. Whether the documents required to be produced to substantiate Mr. Filipazzo’s income loss claim can in fact now be produced, is an open question that was not answered by Mr. Filipazzo. But I do not rely on this evidence to reach my decision.
33Mr. Filipazzo has simply failed to meet his onus of proving that the defendant is not prejudiced by his inordinate litigation delay.
Conclusion
34I, therefore, rule that this action is dismissed for delay.
35Concerning costs, at the end of the oral argument, counsel agreed that if Mr. Filipazzo succeeded in defeating this motion, there should be a $7,500 costs award for the motion in favour of the defendant. Mr. Filipazzo has now failed to defeat the motion. The question, therefore, is not only the costs of this motion, but the costs of this entire action. The defendant served, filed and uploaded a bill of costs for the entire action, including this motion. It showed totals of $31,328.81 in partial indemnity costs and $41,991.78 in substantial indemnity costs.
36If the parties cannot agree as to a proper costs award, I want counsel back to make oral submissions as to costs. I order that this argument take place virtually as a part of my regular motions list on January 28, 2025 starting at 10 a.m. for 45 minutes. If this date is inconvenient, the argument can take place alternatively on one of my regular motions days of either February 25 or February 27, 2025. In that event, the parties must forthwith confer and advise my Assistant Trial Coordinator as to which date they chose.
DATE: December 27, 2024
ASSOCIATE JUSTICE C. WIEBE