



COURT OF APPEAL FOR ONTARIO

CITATION:

Spendiff v. Schmiedl, 2013
    ONCA 120

DATE: 20130225

DOCKET: C56011

Rosenberg, MacPherson and LaForme JJ.A.

BETWEEN

Jan Kelly Spendiff and Rodney James Spendiff

Appellants

and

Janet
    Frances Schmiedl, Keith Sinclair Schmiedl and Philip
    J. McInerney carrying on business as Castlerock Professional
    Home Inspections

Respondents

Taylor B. Robertson, for the appellants

J. Ross MacFarlane, for the respondents, Janet Frances
    Schmiedl and Keith Sinclair Schmiedl

Jay Stolberg, for the respondent Castlerock Professional
    Home Inspections

Heard: February 20, 2013

On appeal from the order of Justice J.R. Henderson of the
    Superior Court of Justice, dated August 13, 2012, with reasons reported at 2012
    ONSC 4663 (CanLII).

ENDORSEMENT

Introduction

[1]

The record in this case
discloses
    that the appellants were not ready for trial when they set the action down for
    trial on March 19, 2010; nor were they ready when their action was struck from
    the trial list on May 10, 2011.  T
heir
    case was struck from the trial list, on the fourth appearance in assignment
    court, with the following endorsement: Matter is not ready for trial and thus
    is struck from the list.  The appellants did not restore it to the trial list
    within 180 days as required by Rule 48.14 (2).

[2]

Rule 48.14(13) provides that at
    the status hearing, the plaintiff shall show cause why the action should not be
    dismissed for delay.  The status hearing judge, under Rule 48.14(13)(i), found
    that the appellants did not offer any reasonable explanation for the delay in
    either the four year period between discoveries and obtaining a 1 page report,
    or the 180 day period after it was struck from the list.  The appellants appeal
    the order.

The appellants position

[3]

The appellants allege that the hearing judge made two errors in
    reaching his decision.  First, they submit that the hearing judge should have
    focused only on why the action was not restored to the trial list after being
    struck; that is the 180 day period.  Second, they contend that in deciding that
    there was no explanation by the appellants for the delay, the hearing judge
    made palpable and overriding errors.

[4]

In connection with both issues,
    the appellants argue that the hearing judge misapprehended material portions of
    the evidence, which they say actually demonstrate that they were moving the
    case forward.

[5]

In addition, they argue that the
    hearing judge did not consider the respondents conduct.  This included the
    respondents failure to take issue with any of the delays prior to the action
    being struck from the trial list and a December 6, 2011 letter, indicating the
    respondent Castlerocks desire to inspect the property and creating the
    impression that the action was not ready for trial.

[6]

We disagree with both grounds of
    appeal.

(1)

The period to consider

[7]

The court, in cases involving dismissal for delay, will
    balance the need to enforce the rules to ensure timely and efficient justice,
    with sufficient flexibility to allow parties to provide a reasonable
    explanation for failing to comply with the rules to have their disputes decided
    on the merits: see,
1196158 Ontario v. 6274013 Canada Ltd.
, 2012 ONCA 544, at
    para. 20.  The hearing judge in this case engaged in this balancing test.

[8]

While
the conduct of a defendant may be relevant in
    dismissal for delay cases, t
he overall focus of an
    inquiry under Rule 48.14 is the conduct of the plaintiff, and there is n
othing in the rule
    that limits consideration for delay to the 180 day time period.
The hearing judge specifically addressed
    this issue and correctly, in our view, decided that i
t was open to him to consider the entire
    history of delay: see again,
1196158 Ontario
, at para. 25.  We
    think this is particularly the case where the action is struck from the trial
    list because it was not ready for trial.  Furthermore, in doing so he
considered the respondents conduct.

[9]

The appellants also argue that
    Rule 48.14(2) is a ''saving provision" which provides an additional 90
    days for a plaintiff to restore an action to the trial list.   They say that
    they were ready to set the action down for trial within 90 days after receipt
    of the status notice from the registrar and ask this court to infer that the
    reason they did not do so was because the December 6, 2011 letter from the Castlerock
    respondent "created the impression that the action was not ready for trial
    because the defendant wanted to conduct an inspection".

[10]

As the respondents point out, the
    essence of the appellants argument is that the hearing judge should have
    concluded they were not ready for trial within the 90-day period, but that they
    had an excuse and that this should relieve the appellants of all prior delays
    in the action.
In rejecting this argument
, the hearing judge
noted that 180 days had already passed when the appellants invited the
    respondents to conduct the inspection.  In any case, t
he hearing judge was correct, as the appellants
    concede, in finding that the letter does not explain the delay during the
    180-day period.

[11]

Without addressing the doubtful
    merits of the appellants interpretation of the purpose of the 90 day period,
    there is simply no evidence that they intended to bring
a
    motion to restore the action to the trial list within the 90 days, just as the
    hearing judge found.

(2)

Palpable and overriding errors

[12]


The hearing judge, several
    times in his reasons, found that no reasonable explanation was offered for the
    appellants failure to move the case forward while it lingered on the trial
    list; nor was there any acceptable explanation for the plaintiffs failure to
    restore this action to the trial list within 180 days.

[13]

The appellants real argument here
    is that the hearing judge misapprehended material portions of the evidence.
In particular, they point to the many and various
    reports that they were obtaining throughout in connection with the costs of
    repair and demolition.  This, they say, was moving the case forward by
    gathering evidence.

[14]

We disagree with the
    submission that the hearing judge misapprehended the evidence.
The evidence that the
    hearing judge considered consisted of affidavits from the appellants and the
    respondents.  That evidence was properly and fairly considered by him and amply
    supported his conclusions.  The alleged palpable and overriding errors now made
    by the appellants, or any misapprehension of evidence, are simply not present.

[15]

The difficulty the appellants are
    faced with in their arguments on this appeal is that the hearing judge
    considered the evidence in assessing, as the appellants contended, that they
    were ready for trial.   On this appeal the appellants ask this court to assess
    the same evidence to infer that they were not ready for trial because an
    inspection had not occurred.  That approach is not a fair or proper basis upon
    which to challenge the hearing judges findings.

[16]

The appellants have failed to
    demonstrate that the hearing judge made any errors in his assessment of the
    evidence or that he made any palpable and overriding errors in his findings of
    fact.

Conclusion

[17]

In
    sum, the status hearing judges decision to dismiss the appellants action for
    delay is discretionary and entitled to deference by this court.  The appellants
    have failed to demonstrate any error of law or fact, which would allow this
    court to interfere with the exercise of that discretion.  The appeal is
    dismissed and each of the respondents, Castlerock and the Schmiedls are awarded
    costs of the appeal fixed in the amount of $5,000 inclusive of disbursements
    and HST.  For clarity, the aggregate costs award is $10,000.

M. Rosenberg J.A.

J.C. MacPherson J.A.

H.S. LaForme
    J.A.


