



COURT OF APPEAL FOR ONTARIO

CITATION: Burgess v. University Health Network, 2022 ONCA 105

DATE: 20220207

DOCKET: C69085

Huscroft, Sossin and Favreau JJ.A.

BETWEEN

Steven Burgess, Natasha
    Burgess,

Clara Burgess by her litigation
    guardian Steven Burgess,

and Ella Burgess, by her litigation guardian
    Steven Burgess

Plaintiffs/Moving Parties

(Appellants)

and

University Health
    Network, Altum Health, Dr. Linda Dvali,

Dr. Amer Al-Kudmani, and
    Jane Doe

Defendants/Responding Parties

(Respondents)

Martin P. Forget and Riley McIntyre, for the appellants

Daniel Girlando, for the respondent University Health
    Network

Andrew Kalamut and Emilie Bruneau, for the respondents
    Dr. Linda Dvali and Dr. Amer Al-Kudmani

Heard: January 31, 2022 by video conference

On appeal from the order of Justice Kevin B.
    Phillips

of the

Superior Court of Justice, dated January 7,
    2021.

REASONS FOR DECISION

[1]

This appeal is from the order of the motion judge dismissing
    the appellants motion to extend the timetable and dismissing the appellants
    action. For the following reasons, the appeal is dismissed.

BACKGROUND

[2]

The facts giving rise to the action are straightforward. Steven Burgess
    injured his arm in a cycling accident in 2011 while working as a by-law
    enforcement officer for the City of Ottawa. He received benefits under the
Workplace
    Safety and Insurance Act, 1997
, S.O. 1997, c. 16, Sched. A (the WSIA).

[3]

On June 17, 2014, on the eve of the expiry of the limitation period, this
    action was commenced by Statement of Claim. The appellants allege that the care
    he received at the respondent hospital, including surgery on his right arm,
    made the injury he sustained worse. The appellants also claimed against the
    respondent physicians who provided him with treatment. None of the respondents
    filed defences.

[4]

The WSIA subrogates any action of a plaintiff to his or her employer. In
    this case, the plaintiffs action was subrogated to the City of Ottawa (the
    City). Under s. 30 of the WSIA, the appellants were required to obtain the
    Citys consent prior to issuing their claim. It was in the Citys discretion
    whether to grant that consent.

[5]

The appellants accepted that the action could only be commenced or
    continued with the Citys consent. They first contacted the City to obtain its
    consent in 2015. Based on oral communications, appellants counsel (not the
    same counsel as counsel arguing the appeal) proceeded from that time forward on
    the basis that the Citys consent was forthcoming. The respondents, advised of
    the purported consent in 2015, requested that it be provided to them in
    writing. The City, however, did not provide the requested consent in writing.
    Negotiations proceeded between 2015 and 2017 on the terms of the agreement
    between the City and the appellants. No agreement was reached.

[6]

The negotiations ended in 2017, and no further steps were taken to
    obtain the Citys consent for over two years. In June 2019, just before the
    matter was to be administratively dismissed for delay, the appellants served
    their notice of motion for a status hearing to extend the set down date. While
    the original return date for the status hearing was September 2019, several
    adjournments followed and the status hearing did not occur until January 2021.

[7]

In November 2020, two months before the parties were scheduled to appear
    on the status hearing, the appellants finally obtained the Citys written consent.

[8]

At the status hearing, pursuant to r. 48.14 of the
Rules of Civil
    Procedure
, R.R.O. 1990, Reg 194, the motion judge dismissed the motion to
    extend the set down date and dismissed the action for delay. He held that the
    appellants failed to provide an acceptable explanation for the delay in
    prosecuting their action, and that the appellants had failed to rebut the
    presumption of prejudice that would result if the action were permitted to
    proceed.

ANALYSIS

[9]

All parties agree that the motion judge is entitled to deference in his
    decision to dismiss the motion for an extension of time and to dismiss the
    action for delay. The dismissal order may only be set aside if the motion judge
    has made a palpable and overriding error of fact, or reached a decision based
    on an erroneous legal principle reviewable on a correctness standard:
1196158
    Ontario Inc. v. 6274013 Canada Ltd.
,
2012 ONCA 544
, 112
    O.R. (3d) 56, at para. 16.

[10]

Rule
    48.14 of the
Rules of Civil Procedure
states:

(1) Unless the court orders otherwise, the registrar
    shall dismiss an action for delay in either of the following circumstances,
    subject to subrules (4) to (8):

1. The action has not been set down for trial or
    terminated by any means by the later of the fifth anniversary of the
    commencement of the action and January 1, 2017.



(5) If the parties do not consent to a timetable
    under subrule (4), any party may, before the expiry of the applicable period
    referred to in subrule (1), bring a motion for a status hearing.

(6) For the purposes of subrule (5), the hearing of
    the motion shall be convened as a status hearing.

(7) At a status hearing, the plaintiff shall show
    cause why the action should not be dismissed for delay, and the court may,

(a) dismiss the action for delay; or

(b) if the court is satisfied that the action
    should proceed,

(i) set deadlines for the completion of the
    remaining steps necessary to have the action set down for trial or restored to
    a trial list, as the case may be, and order that it be set down for trial or
    restored to a trial list within a specified time,

(ii) adjourn the status hearing on such terms as
    are just,

(iii) if Rule 77 may apply to the action, assign
    the action for case management under that Rule, subject to the direction of the
    regional senior judge, or

(iv) make such other
    order as is just.

[11]

Rule
    48.14 requires that courts balance the objective of resolving disputes on their
    merits with the objective of resolving disputes in a timely and efficient
    manner in order to maintain public confidence in the administration of justice.
    The role of the judge presiding over a status hearing is to ensure that justice
    is served for all of the litigants:
1196158 Ontario Inc.
,

at
    para. 41.

[12]

On
    a motion under r. 48.14, the moving party must establish that (a) there was an acceptable
    explanation for the delay; and (b) if the action were allowed to proceed, the
    defendant(s) would suffer no non-compensable prejudice;
Faris v. Eftimovski
,
    2013 ONCA 360, at para. 11. In this case, the motion judge found that the
    appellants had not established either prong of the test.

[13]

The
    appellants assert that the motion judge misapprehended or overlooked certain
    evidence, resulting in palpable and overriding errors. Specifically, the
    appellants contend that the motion judge erred in finding: (a) that the delay
    was caused by the appellants; (b) that the respondents did not acquiesce to the
    delay; and (c) that the respondents would suffer non-compensable prejudice. As
    a result of these errors, the appellants argue the motion judges decision
    should be set aside and their action reinstated, with an extension of time to
    set the action down for trial.

[14]

The
    appellants rely on
Mihoren v. Quesnel
, 2021 ONCA 898, released after
    the motion judges decision. In
Mihoren
, at para. 36, this court held
    that, in the context of an appeal from an administrative dismissal of an action,
    a plaintiffs explanation for delay should be considered contextually. The
    appellants argue that although this case is not an administrative dismissal, the
    motion judge in this case should have considered the appellants explanation of
    their delay contextually.

[15]

The
    respondents argue that the evidence before the motion judge supports his finding
    that the appellants decision to pursue better financial terms in exchange for
    the Citys consent does not amount to an acceptable explanation for the
    inordinate delay over the five-year period after the claim was issued. Moreover,
    it was reasonable for the motion judge to find that the respondents never
    waived or acquiesced in respect of the delay.

[16]

We
    agree. In our view, nothing in this case turns on the way in which the
    appropriate test is described. The motion judge considered the record, including
    the relevant context, and concluded that the delay was both inordinate and not
    acceptably explained by the appellants. That finding is amply justified.

[17]

The
    respondents argue that, while the inordinate delay was in itself a sufficient
    basis to decide the motion, the motion judge reasonably found that the
    appellants had failed to rebut the presumption of prejudice caused by the
    unexplained delay. According to the respondents, it was open to the motion
    judge to determine that the memories of individuals, including the yet to be
    identified nurse defendant Jane Doe, would be compromised, and that the
    fairness of any trial would be jeopardized.

[18]

We
    agree. This is an unusual case, in that the action was never properly
    commenced. Moreover, by the time the matter got to the motion judge, virtually
    no steps had been taken. No statement of defence was filed  with the
    appellants consent  no affidavits of documents had been exchanged, and no
    examinations for discovery had taken place. This court has recognized that the
    passage of an inordinate length of time after a cause of action arises presumptively
    gives rise to trial fairness concerns. As Sharpe J.A. stated in
1196158
    Ontario Inc.
,

at para. 42: If flexibility is permitted to
    descend into toleration of laxness, fairness itself will be frustrated. As the
    status hearing judge recognized, even if there is no actual prejudice, allowing
    stale claims to proceed will often be unfair to the litigants. The problem is
    pronounced in this case, and the appellants have presented no persuasive
    argument to rebut this presumption.

[19]

In
    our view, there is no basis to disturb the motion judges decision. There was
    ample evidence in the record on which to base his conclusion on both prongs of
    the r. 48.14 test. We do not accept the argument that he committed palpable and
    overriding errors in doing so.

DISPOSITION

[20]

The
    appeal is dismissed, with costs to the respondents.

[21]

The
    parties have agreed on the quantum of costs. Pursuant to that agreement, the
    appellants shall pay $5,000 to the respondent physicians and $2,500 to the
    respondent hospital.

Grant Huscroft J.A.

L.
Sossin J.A.


L. Favreau J.A.


