Court File and Parties

Court File No.: CV-15-107
Date: 2025-04-28
Court: Ontario Superior Court of Justice

Between:
David Richard Reid (Plaintiff)
and
Area Municipality of the Town of Bracebridge and C.C. Tatham & Associates Ltd. (Defendants)

Appearances:
Bronwyn Martin, Counsel, for the Plaintiff
Charles M. Loopstra and Jenelle Westworth, Counsel, for the Defendant, Town of Bracebridge

Heard: March 25, 2025

Overview

The plaintiff, David Richard Reid (“Reid”), brings this motion to set aside the Registrar’s Order dismissing the action bearing Court File No. CV-15-107 (“2015 Action”) for delay, dated May 13, 2024 (“Dismissal Order”).

The defendant, Area Municipality of the Town of Bracebridge (“Bracebridge”) opposes the motion and alleges that Reid has “made no discernable efforts to advance the action since it was commenced on June 26, 2015”, almost ten years ago, except to serve a (flawed) Affidavit of Documents in May of 2021.

The defendant, C.C. Tatham & Associates Ltd. (“Tatham”) takes no position on the motion.

For the following reasons, I find that Reid has not satisfied the legal test for setting aside a registrar’s order dismissing an action for delay. As a result, Reid’s motion seeking to set aside the Dismissal Order is hereby dismissed with costs payable to Bracebridge.

Facts

2005 Action

In 2005, Reid commenced an action bearing Court File No. 299-05 in the Superior Court in Bracebridge (“2005 Action”) against Bracebridge alleging that certain property located at 770 Cedar Lane, Bracebridge (the “Property”) was flooded due to improper design and maintenance of the natural drainage course and drainage system. Reid alleged damages for structural, water and mould damage to the commercial dwelling on the Property.

In 2009, in settlement of the 2005 Action, and without any admission of liability, Bracebridge agreed to make certain improvements to the drainage course and drainage system (“Drainage Improvements”) and Reid agreed to grant the necessary easements to do so.

In furtherance of the 2009 settlement, Reid was paid the sum of $100,000 and provided a full and final release in favour of Bracebridge.

2015 Action

In June of 2015, Reid commenced a second action bearing Court File No. CV-15-107 against Bracebridge and its consultant engineering firm, Tatham, for damages for the alleged negligent design and maintenance of the Drainage Improvements, which he claimed caused structural damage to the residential dwelling on the Property.

Bracebridge disputed Reid’s claim and alleged that any damage to the dwelling was pre-existing due to the structure being built in the floodplain and to poor maintenance.

On August 26, 2015, the defendant, Tatham, delivered a Statement of Defence and Crossclaim.

On February 6, 2016, Bracebridge delivered a Statement of Defence, Counterclaim and Crossclaim.

On November 20, 2017, Bracebridge amended their pleadings, and on December 13, 2017, delivered a Fresh as Amended Statement of Defence and Crossclaim which, inter alia, pled immunity from civil liability on various grounds, including, but not limited to, an agreement dated July 25, 2013 (“Easement Agreement”) which released Bracebridge from any liability arising out of the Drainage Improvements except in the case of “willful misconduct or gross negligence”.

On May 21, 2021, six years following commencement of the 2015 Action, Reid’s (former counsel) served Reid’s affidavit of documents which did not comply with r. 30.03 and did not include any referenced documents.

On August 18, 2021, Reid’s (re-appointed) counsel served Reid’s Schedule “A” productions.

In December of 2021, Reid brought a motion to strike Bracebridge’s Defence for failure to serve an affidavit of documents.

In January of 2022, Bracebridge served its affidavit of documents and thereafter served a Notice of Examination upon Reid which was scheduled for June 1, 2022.

On May 31, 2022, Reid was involved in a serious car accident and was hospitalized for 6 weeks and then released to rehab facility.

On June 1, 2022, Reid’s examination for discovery scheduled by the defendants was cancelled due to Reid’s car accident.

Despite providing alternate dates, Reid cancelled his scheduled examination for discovery on three subsequent occasions: April 26, 2023; June 11, 2023; and July 24, 2023.

On August 22, 2023, Reid was partially examined for discovery relating to the 2015 Action, however, the examination was not completed.

Bracebridge subsequently sent numerous emails on October 18, 2023, December 14, 2023, and January 20, 2024, seeking to schedule Reid’s continued examination and obtain answers to undertakings, including a proper Affidavit of Documents. No further date was agreed upon by Reid.

On February 23, 2024, Reid eventually partially complied with his undertakings and discovery obligations but did not agree upon a date for his continued examination.

On May 13, 2024, the Registrar dismissed the 2015 Action for delay.

2017 Action

In 2017, Reid commenced a third action against Bracebridge, and against Tatham, and various other parties (“the 2017 Action”) bearing Court File No. CV-17-0048 alleging bad faith and conspiracy. By the 2017 Action, Reid sought damages for negligence, public misfeasance, unlawful conduct, conspiracy, unlawful interference with economic relations, mental distress, and punitive damages.

Following service of the 2017 Action, all defendants brought motions against Reid seeking summary judgment scheduled to be heard on April 23, 2018. However, prior to the motions being heard, Reid released all defendants without costs.

On April 26, 2018, a consent order dismissing the 2017 action was signed by the Registrar and entered.

On April 30, 2018, Reid refused to execute a release. Bracebridge confirmed to Reid in writing that Reid’s claim for economic loss in the 2015 action continued.

On May 2, 2018, Bracebridge revised the form of release to accord with Reid’s approved version and forwarded same to Reid who refused to execute the release.

On October 5, 2018, Bracebridge advised it would bring a rule 49.09 motion to enforce settlement.

On October 16, 2018, Reid’s lawyer advised that Reid was attending his office to sign the revised release.

On October 19, 2018, Reid’s lawyer served a notice of intent for Reid to act in person for the 2017 action.

In October of 2018, Bracebridge brought a motion to enforce the settlement of the 2017 Action and to require Reid to execute the release. Reid brought a cross-motion to set aside the order dismissing the 2017 action and to consolidate the 2015 and 2017 actions.

On June 27, 2019, Justice Casullo granted Reid’s relief, set aside the Order dismissing the 2017 action, and consolidated the 2015 and 2017 actions.

On December 13, 2019, the Divisional court granted leave to appeal.

On February 21, 2021, the Divisional Court, inter alia, affirmed the dismissal of the 2017 action and required Reid to sign the release: see Reid v. Bracebridge, 2021 ONSC 791 (Div. Ct.).

Bracebridge’s 2022 Application

On September 12, 2022, a suspicious fire occurred at the Property which was investigated by the Ontario Provincial Police. The cause and person(s) responsible for the fire have not been identified.

After attending the Property on September 13, 2022, Bracebridge’s then Property Standards Officer, Matthew Irving (“Officer Irving”), issued an Emergency Order dated September 15, 2022, under section 15.7 of the Building Code Act, 1992, S.O. 1992, c. 23 (“BCA”) requiring that the wholly consumed building be immediately removed.

As Emergency Orders issued under the BCA are immediately enforceable, municipalities are required to thereafter bring an application to a Judge of the Superior Court as soon as practicable to confirm such Orders.

Bracebridge commenced the necessary application as Court File No. CV-22-00000134 (“2022 Bracebridge Application”), and in addition seeks an Order pursuant to s. 15.7(1) of the BCA for costs incurred for the demolition of Reid’s property totaling $77,492.16, inclusive of taxes and fees.

As per Bracebridge’s obligations under the BCA, Reid was provided with the Statement of Account on October 3, 2022.

Reid instructed Bracebridge to contact his lawyer (“Gillespie”) who advised by email dated October 6, 2022, that he was not representing Reid in the 2022 Application.

Reid’s 2023 Counter Application

On January 16, 2023, Reid commenced a counter application.

On February 1, 2023, Reid through new counsel of record, Hugh Taylor, responded to the 2022 Bracebridge Application by delivering a “Respondent’s Legal Brief” that included a Notice of Application (“2023 Reid Proceeding”).

Reid’s 2023 Application alleges bad faith and conspiracy against Bracebridge, former Officer Irving, former Chief Building Official Tom Hookings, and external consultant engineer Paul Brunskill, and seeks damages totaling $1.95 million.

Reid’s Consolidation Motion

On April 26, 2023, eight years following issuance of the 2015 claim, Reid served a Notice of Motion seeking to consolidate the 2015 Action with the 2022 Bracebridge Application and the 2023 Reid Proceeding.

All parties except for Reid opposed consolidation because (according to Bracebridge) apart from involving the same owner and Property, the facts, and legal questions within the 2015 Action are wholly unrelated to the 2022 and 2023 Applications.

Allegations of Abusive Conduct

Bracebridge alleges that in addition to commencing a multitude of legal proceedings, Reid has also engaged in abusive conduct through disjointed and threatening voicemail messages and correspondence targeting Bracebridge and its former and existing officials.

Positions of the Parties

Bracebridge submits that rather than taking steps to move the 2015 Action forward, Reid has devoted his energy to other activities, none of which qualify as a “reasonable explanation” for the delay occasioned in moving the 2015 Action forward.

Reid submits that he has provided a “reasonable explanation” for the delay of the 2015 Action, for two main reasons:

(a) First, the 2015 Action has proceeded in tandem with three other related matters. Reid’s counsel has provided a chronology of “this action” which is attached to their Factum as Appendix “A” to assist the court with this aspect of Reid’s argument.

(b) Second, Reid was seriously injured in a motor vehicle accident, was hospitalized for 6 weeks, then released into community-based rehab and as a result his discovery scheduled for June 2022 could not proceed.

Issues

The issue to be determined on this motion is whether the dismissal Order relating to the 2015 Action should be set aside.

Analysis and Findings

The test for setting aside a r. 48.14(1) order is well established. A motion judge is required to consider the following four factors, often referred to as the Reid factors (see Piedrahita v. Costin, 2023 ONCA 404, para 8), which in the present case are posed as follows:

i) Has Reid provided a satisfactory explanation for the litigation delay?
ii) Has Reid led satisfactory evidence to explain that he always intended to prosecute the action within the applicable time limits but failed to do so through inadvertence?
iii) Has Reid demonstrated that he moved forthwith to set aside the dismissal order as soon as the order came to his attention?
iv) Has Reid convinced the court that the defendants have not demonstrated any significant prejudice in presenting their case at trial as a result of the plaintiff’s delay or as a result of steps taken following the dismissal of the action?

As noted by Justice Mathai in the recent decision of Francis v. Schneider, 2025 ONSC 2491, the jurisprudence previously required plaintiffs to satisfy each of the Reid factors. However, the Court of Appeal in Scaini v. Prochnicki, 2007 ONCA 63, rejected this rigid approach in favour of a contextual approach that requires a court to consider and weigh all relevant factors to determine an order that is just (see also Prescott v. Barbon, 2018 ONCA 504, paras 13-15 and Marché d'Alimentation Denis Thériault Ltée v. Giant Tiger Stores Ltd., 2007 ONCA 695, paras 20-21).

In Hamilton (City) v. Svedas Koyanagi Architects Inc., 2010 ONCA 887, Laskin J.A. observed that the overriding objective is to achieve a result that balances the interests of the parties and takes account of the public's interest in the timely resolution of disputes. The four factors provide a structured approach to achieving this result (see also Prescott, at para. 15).

i. Has Reid provided a satisfactory explanation for the delay?

In evaluating this factor, the delay must be considered as a whole – from the initiation of this claim (June 26, 2015) to the date of the dismissal order (May 13, 2024).

The key question to be answered on this part of the test is whether Reid has adequately explained the delay in the progress of the 2015 Action from commencement on June 26, 2015, to dismissal on May 13, 2024.

My review of this issue was assisted by the chronology of events prepared by Reid’s counsel as supplemented by the evidence filed by the parties that provided cogent details of the events that transpired.

Having reviewed the chronology and evidence, I am unable to accept Reid’s proposition that he has provided a satisfactory explanation for the delay.

Approximately nine years elapsed between the commencement of the 2015 Action and the dismissal. Despite this passage of time, Reid took only limited and minimal steps to move the 2015 Action forward – and excepting issuance of the claim – any movement forward occurred primarily due to the defendants’ insistence limited to the following:

• June 26, 2015: issuance of claim.
• May 21, 2021: 6 years later: service of (faulty) affidavit of documents.
• August 21, 2022: 7+ years later: service of Schedule “A” documents.
• February 23, 2024: 8+ years later: service of corrected affidavit of documents.
• August 21, 2023: 8+ years later: attendance at partial examination for discovery.
• February 23, 2024: 9 years later: service of supplementary affidavit of documents.

Further, while the evidence established that Reid was involved in a serious car accident on May 31, 2022, the accident occurred seven (7) years following the issuance of the claim.

Additionally, while Reid’s injuries may have provided a reasonable explanation for some delay, Reid proved himself capable by initiating an application in January of 2023, approximately 8 months post-accident. Further, once issued, Reid pursued the 2022/2023 applications into the abyss, sought to consolidate them with the 2015 Action, and akin to the 2017 Action, took active steps to pursue the 2022/2023 litigation while derailing and delaying the 2015 Action.

To date, Reid has not completed his examination for discovery relating to the 2015 Action, has not examined (or sought to examine) the defendants in the 2015 Action, initiated a duplicitous proceeding in 2017 which he steadfastly pursued while ignoring the 2015 Action, commenced a further application in 2023 which he seeks to consolidate with the 2015 Action – steadfastly ignoring, stalling, and derailing the 2015 Action.

Parties are expected to put their best foot forward and present cogent evidence to support explanations for delay. Bald assertions or delays caused by a parties’ own actions, are insufficient to discharge the onus.

With respect to any claim that the defendants share in the delay, as stated in 1196158 Ontario Inc. v. 6274013 Canada Ltd., 2012 ONCA 544, paras 28-29, a “party who commences the proceeding bears primary responsibility for its progress”.

In the present case, while the defendants were under no obligation to assist Reid in moving the claim forward, the defendants did in fact seek to assist and move the matter forward. More specifically, the defendants filed their statements of defence, counterclaims, and crossclaims, prepared and served their affidavit of documents, served notices of examination upon Reid; repeatedly attempted to focus Reid’s attention on the 2015 Action; repeatedly sought to examine Reid for discovery and then to complete the examinations for discovery; sought to resolve Reid’s 2017 duplicitous Action quickly; directed Reid to make appropriate corrections to his served affidavit of documents; sought the documents listed on his served affidavit of documents; directed Reid to execute the Release for the 2017 Action (revised by the defendants to allow the 2015 Action to continue); executed a consent to the dismissal of the 2017 Action; and obtained a dismissal of the 2017 Action.

Despite the defendants’ attempts to move the 2015 Action forward, Reid resisted correcting his documents, resisted attending at discovery, resisted attending at continued discovery, and resisted completing a settlement that he had agreed upon relating to the 2017 Action, and has chosen to pursue the 2022/2023 applications, to consolidate with the 2015 Action.

Further, although under no obligation, the defendants did take steps to move the matter forward but their efforts were undone by Reid’s own resistance and inactivity. There is no merit to any argument which attempts to place blame for the delay upon the defendants.

In the circumstances, I find that Reid has not provided a satisfactory explanation for the delay.

ii. Has Reid led satisfactory evidence to explain that he always intended to prosecute the action within the applicable time limits but failed to do so through inadvertence?

As noted above, the evidence establishes that Reid was the primary author of the delay.

Reid’s conduct throughout the litigation cannot be interpreted to amount to inadvertence. The evidence establishes numerous cancellations, deferrals, and a penchant to pursue any litigation other than the 2015 Action.

Of further note, even if the Dismissal Order were set aside, the evidentiary record does not support a finding that Reid intends even at this time to set the 2015 Action down and proceed to trial. Instead, the evidence supports a finding that Reid intends to pursue a motion for joinder to consolidate the 2015 Action with the 2022/2023 Applications, with no set date for a hearing and no litigation plan in sight.

In my view, the 2015 Action was no closer to being set down for trial at the date of the Dismissal Order on May 13, 2024, than when it was commenced on June 26, 2015, and there is no evidence that Reid ever intended to prosecute the 2015 Action within the applicable limits.

There is simply no reasonable evidence that would allow the court to conclude that Reid has always intended to prosecute the action but failed to do so through inadvertence. Reid has not satisfied this aspect of the test.

iii. Has Reid moved forthwith to set aside the Dismissal Order?

Bracebridge has conceded that this factor favours Reid.

iv. Has Reid rebutted the presumption of prejudice?

The passage of an inordinate length of time after a cause of action arises presumptively gives rise to trial fairness concerns. Even if there is no actual prejudice, allowing stale claims to proceed will often be unfair to the litigants. The longer the delay, the stronger the inference of prejudice to the defence case that flows from the delay. The Court must consider all the circumstances in evaluating the strength of the presumption of prejudice: Burgess v. University Health Network, 2022 ONCA 105, para 18; Langenecker v. Sauvé, 2011 ONCA 803, para 11; DK Manufacturing Group Ltd v. MDF Mechanical Limited, 2019 ONSC 6853, paras 28–29.

On a motion to set aside a dismissal for delay, the question of prejudice is a key, if not the key consideration: see Chrisjohn v. Riley Estate, 2015 ONCA 713, para 36, citing Hamilton (City), at para. 33.

The relevant prejudice is the defendant’s ability to defend the action arising from steps taken following dismissal or arising from the restoration of the action: see MDM Plastics Ltd. v. Vincor International, 2015 ONCA 28, para 25; and 806480 Ontario Ltd. v. RNG Equipment Inc., 2014 ONCA 488, para 4.

Reid has the onus of demonstrating that Bracebridge would not suffer prejudice as a result of the overall delay if the 2015 Action is permitted to proceed. The prejudice at issue is Bracebridge’s ability to defend the action and present its case at trial as a result of the delay, not the passage of time.

Reid’s evidence should identify the important witnesses and should indicate whether the witnesses remain available to give evidence, or whether evidence including important documentary evidence have been preserved. Reid has not provided any such evidence.

Bracebridge has no onus to demonstrate prejudice: Kendrim et al v. Home Trust Company, 2021 ONSC 5420, para 34; and 1196158 Ontario Inc., at para. 32. Notwithstanding this factor, Bracebridge submits that given the passage of time since the completion of the 2013 storm water management system which forms the crux of the 2015 Action - there is a presumption of prejudice and a presumption that memories have faded. Bracebridge further submits that since the events, one key witness (Chief Building Inspector) has retired and another (Deputy Chief Building Inspector) has left their employment. Again, Bracebridge claims that these facts prejudice their ability to defend the action.

Finally, Bracebridge submits that on September 12, 2022 (7+ years following the claim) a key piece of evidence, the dwelling located on the property, was irreparably damaged by fire. Prior to the fire, the dwelling was derelict and abandoned but existed. Due to the damage caused by the fire, the dwelling was determined a hazard and was required to be removed by Emergency Order dated September 15, 2022. As a result, the building no longer exists. Material evidence relating to the extent of the alleged water, mould, and structural damages to the property appear to be lost. Bracebridge submits that trial fairness may be materially affected due to the loss of the building and its contents.

While it may seem odd that Bracebridge is relying upon an argument of loss of evidence when Bracebridge itself removed the dwelling pursuant to an Emergency Order – it was a fire that created the loss – and the removal was rendered necessary by the fire – the cause of which does not fall to either Bracebridge or Reid.

The important factor relating to the destruction of the building is in fact the passage of time that it has taken this litigation to move forward. This fact, coupled with Reid’s knowledge that the property was derelict, abandoned, and vulnerable to destruction is directly linked to the issue of the ongoing delay and prejudice.

It is my view that Reid took minimal steps to move the 2015 Action forward and his inaction caused undue delay and that this delay ultimately resulted in the destruction of a key piece of evidence. In the circumstances I find that Reid has failed to displace the presumption that the prejudice would be suffered by Bracebridge if the matter were reinstated.

As noted by the Court of Appeal in Barbiero v. Pollack, 2024 ONCA 904, inordinate delay, even without demonstrated harm, can justify dismissal if it compromises the fairness and integrity of the litigation process.

Having considered the issue of delay, I accept Bracebridge’s submission and find that no persuasive argument was presented by Reid to rebut the presumption that is inherent in long delays. However, even if Bracebridge would not suffer prejudice from the delay, I would still dismiss the motion on the basis that Reid has not provided any credible explanation for the delay and presented no reasonable evidence that he intended to set the action down or trial by the deadline but failed due to inadvertence.

Determination of Motion

For the foregoing reasons, I hereby dismiss the plaintiffs’ motion and confirm the Registrar’s dismissal order dated May 13, 2024.

If the parties are not able to agree on costs, Bracebridge may file costs submissions of no more than 3 pages plus costs outline and any offers to settle within 20 days of the release of this decision, and Reid may file responding costs submissions on the same terms within a further 15 days. Bracebridge’s Reply, if any, is limited to one page, to be filed within a further 5 days.

Justice S. J. Woodley
Released: April 28, 2025

Reid v. Bracebridge and Tatham, 2025 ONSC 2535