Overview
The plaintiff sought to set aside a Registrar’s Order dismissing her action for delay under Rule 48.14 and extend the time to set the matter down for trial.
The court dismissed the motion, finding that the plaintiff did not have a satisfactory reason for the delay, an intention to prosecute the action within the applicable time limits and that there was significant prejudice to the defendant. Despite repeated defence requests, there were no dates for discoveries or mediation, there remained significant outstanding productions, and no litigation timetable put in place to extend the date to set the matter down for trial. As a result, the motion was dismissed.
Facts
Motions to set aside dismissal for delay are determined on the particular facts of the case. The court must weigh the importance of civil actions being decided on their merits against the principle that they be resolved in a timely and efficient manner, to uphold public confidence in the administration of justice.
The facts considered by the court:
- The plaintiff was injured in a 2016 collision involving a vehicle driven by the now-deceased defendant Peter Mutschler and owned by the defendant, Anita Bergmann.
- The action was commenced in October 2017
- The plaintiff moved to the USA in 2017 and has lived there ever since
- Intact Insurance denied coverage for Mutschler in 2018, leading to a third-party claim which delayed examinations for discovery for a period of time
- The plaintiff amended her claim in June 2018 to add her own insurer to the action for underinsurance
- Examinations were tentatively scheduled in November 2018 but did not proceed
- The third-party claim settled in November 2019, after which new counsel was appointed to represent Ms. Bergmann
- For the next two years, the defendants followed up with plaintiff’s counsel to schedule examinations and receive productions
- The plaintiff’s lawyer spent “considerable time and resources” accusing various parties of being in conflict, of breaching ethical rules, of impropriety and conspiring to invent a “consent defence” narrative, notwithstanding that this defence had been pled in Ms. Bergmann’s defence back in March 2018
- In September 2022, plaintiff’s counsel advised that they wished to move the matter to Simplified Rules. They received consent from the parties to do so in February 2023, but didn’t act on it until April 2024
- The matter was dismissed by the Registrar in June 2024 as an administrative dismissal, it being more than five years since the issuance of the claim
Legal Test
Pursuant to Rule 37.14(1), the court may set aside or vary the dismissal order on such terms as are just. The court applied the four-part test to determine whether to set aside the dismissal:
- Satisfactory explanation for the delay;
- Evidence of intention to prosecute the action within the time limits, but failed due to inadvertence;
- Moving promptly to set aside the dismissal order as soon as aware; and
- No significant prejudice to the defendant (Piedrahita v. Costin, 2023 ONCA 404at para 8 and Reid v. Dow Corning Corp., 2002 CarswellOnt 5899).
The factors must be considered and weighed contextually and the plaintiff is not required to satisfy each factor separately to succeed (Scaini v. Prochnicki, 2007 ONCA 63 (CanLII).
Application of the Test
The parties conceded that the third factor of the test was met: the plaintiff had brought the motion to set aside the dismissal promptly. Therefore, the court only assessed explanation for the delay, evidence of intention to prosecute and prejudice to the defendant.
- Explanation for Delay
Seven years elapsed between the commencement of the action and the administrative dismissal. The plaintiff and her counsel pursued tangential issues (the accusations against defence counsel) without ever moving the litigation forward.
The explanation for the delay was counsel’s mistaken belief that the post-COVID-19 resumption of administrative dismissals in May 2024 included an additional 182-day grace period. This despite the fact that any action started before November 12, 2018 was automatically subject to the dismissal as of May 13, 2024. Counsel also referenced high internal employee turnover and difficulty advancing matters throughout the pandemic shutdowns.
- Intention to Prosecute Action within Time Limits
The plaintiff argued she in no way contributed to the delay and relied completely on her lawyer to move the claim forward. None of this explanation was satisfactory.
As of the date of dismissal by the registrar, there still were no dates for discovery or mediation, nor was there a litigation timetable put in place to extend the time to set the matter down for a trial. There was no evidence to account for the delay and no air of reality to counsel’s mistaken understanding of how the suspension of administrative dismissals worked during the pandemic.
- Significant Prejudice
Prejudice was presumed due to the lengthy, inordinate delay (Barbiero v. Pollack, 2024 ONCA 904). The plaintiff did not rebut the presumption of prejudice:
- Death of the co-defendant, Mutschler, with no sworn evidence or out-of-court statements to preserve his evidence on the consent issues;
- Likely loss or destruction of key medical and employment records; and
- Expired OHIP data window (limited to seven years).
The plaintiff provided no concrete evidence that documents or witnesses remained available. Evidence in support of the motion should have identified important witnesses and indicated whether those witnesses were available to give or evidence or whether evidence had been preserved.
Conclusion
While the court noted that the preference of the court leans towards deciding matters on their merits, rather than terminating them for procedural reasons, with significant enough delay and prejudice to the defendant, the court can and will dismiss on procedural grounds. Chekhovtsova highlights the importance of having a “game plan” in place to move a matter forward, and particularly in the event that plan is thwarted by an outside obstacle (such as the COVID-19 pandemic). Justice Kamal also noted that the court does not condone “tactics using threats and intimidation” and reaffirmed the judiciary’s commitment to the “culture shift” away from tolerance of delay (Hryniak v. Mauldin, 2014 SCC 7 ; Barbiero v. Pollack). Justice Kamal also provided the rather apt quote: “in legal proceedings, it is not better to ask for forgiveness, rather than permission.”
