



COURT OF APPEAL FOR ONTARIO

CITATION: Stokker v. Storoschuk, 2018 ONCA 2

DATE: 20180102

DOCKET: C63668

Laskin, Huscroft and Paciocco JJ.A.

BETWEEN

Greg Stokker

Plaintiff (Appellant)

and

Carolyn Storoschuk and 1641516 Ontario Inc.

Defendants (Respondents)

James Lawson, for the appellant

Christopher Lee, for the respondents

Heard: December 18, 2017

On appeal from the order of Justice Jasmine T. Akbarali
    of the Superior Court of Justice, dated March 30, 2017, with reasons reported
    at
2017 ONSC 1931.

REASONS FOR DECISION

[1]

Beginning in 2005, Mr. Stokker and Ms. Storoschuk were in a romantic relationship.
    Throughout their relationship, the parties were involved in a number of
    business transactions. Disagreements emerged over land and money. In 2007, Mr.
    Stokker, the appellant, sued Ms. Storoschuk and her corporation, 1641516
    Ontario Inc., the respondents. Since then, the appellants lawsuit has
    languished. It was dismissed administratively twice for delay and then
    reinstated on consent. Three court-ordered timetables imposed on the appellant were
    not met.

[2]

In December 2015 the action had, once again, been removed from the list.
    The respondents, unaware of this, brought a motion under r. 48.14 of the
Rules
    of Civil Procedure
, R.R.O. 1990, Reg. 194, to have the appellants action dismissed
    for delay. The motion was adjourned for a short time. On the return date, March
    17, 2016, the appellant was not called upon to show cause as to why his action
    should not be dismissed. Instead, the parties agreed to a fourth timetable, as
    well as a consent order under r. 48.14(4). The timetable set out a series of
    completion dates that the appellant would have to meet to ready the matter for
    trial. Clause 3 of the order provided that, pursuant to Rule 48.14(1), the
    Registrar shall dismiss this action for delay with costs unless the action has
    been restored to the trial list on or before August 18, 2016.

[3]

The appellant was late in performing some of the steps in the fourth timetable,
    but managed to complete the required tasks and to bring a r. 48.11(b) motion to
    reinstate the action before the August 18, 2016 deadline. The respondents opposed
    the motion, but the master reinstated the action to the trial list. The
    respondents appealed to a single judge of the Superior Court of Justice and the
    appeal was allowed. The appellant now comes before us, arguing that the appeal
    judge erred in law in allowing the appeal. We agree with the appellant. The
    order reinstating the action should not have been set aside.

[4]

The parties agree that each level of court applied the proper legal test
    for restoring an action. In
Nissar v. Toronto Transit Commission
, 2013
    ONCA 361, 115 O.R. (3d) 713, at para. 31, this court said:

[T]he applicable test is conjunctive: a plaintiff bears the
    burden of demonstrating that there is an acceptable explanation for the delay
    in the litigation,
and
that, if the action was allowed to proceed, the
    defendant would suffer no non-compensable prejudice. [Emphasis in original.]

[5]

The appeal judge held that the master erred in applying the first leg of
    the test by not considering the overall delay from the inception of the
    litigation. In our view, the master was correct to give focus to the period
    following the March 17, 2016 consent order and timetable. Where delay has been
    addressed in a prior court order, or consented to, it is any subsequent delay
    that requires explanation.

[6]

For this reason, in
Christie Corp. v. Lee
, 29 C.P.C. (4th) 181 (Ont.
    C.A.), this court confined the relevant period of delay in a r. 24 motion to
    dismiss for delay to the period of delay that occurred after a consent
    amendment to the plaintiffs statement of claim. Prior delay was implicitly
    excused by the defendant when they consented to the amendment. The same
    principle applies to a motions under r. 48 to restore an action to the trial
    list.

[7]

Thus, in
Gill v. Khindria
, 2016 ONSC 5057 it was held,
    correctly in our view, that in a r. 48.11 motion, the court should only
    consider delay subsequent to a consent order withdrawing a motion to dismiss.

[8]

The master did not err, therefore, in focusing on the period after the r.
    48.14(4) consent order was made. Indeed, in this case there was no delay
    subsequent to the order, as the appellant had met the imposed deadline of
    August 18, 2016. The master was therefore correct to reinstate the action to
    the trial list.

[9]

The respondents offered three additional arguments in support of the
    appeal judges decision to the contrary. None of the arguments can sustain the
    appeal judges decision.

[10]

First,
    the respondents argued that the March 17, 2016 order should not prevent them
    from opposing reinstatement based on prior delay because the order did not say
    that, if the timetable was met, the action would be restored. The respondents
    claim that they always reserved the right to oppose the reinstatement motion,
    even if the timetable was met. Their position is untenable. The essence of the consent
    order was to impose a deadline on the appellant in preparing for trial. It is
    necessarily implicit in the order the respondents agreed that, if the deadline was
    met, the action would be fit to be restored.

[11]

Second,
    the respondents argued that the appeal judge was correct in finding that they
    are not bound by their agreement to the r. 48.14(4) order because they were not
    aware when they agreed to that order that two of their witnesses had died in
    2014. In our view, the appeal judge was incorrect in treating the respondents
    consent as ineffective on this basis. No authority was cited for the
    proposition that the failure of a party to know the state of its own case makes
    its consent to an order ineffective. That is not a proposition we would
    endorse. When one party provides consent, the other parties to the action are
    entitled to rely on that consent. The appellant in this case relied to his detriment
    on the timetable that the respondents had agreed to, in the reasonable
    expectation that the action could then move forward. The master was correct to
    treat the consent order of March 17, 2016 as a seminal event in determining
    whether to reinstate the action to the trial list.

[12]

Finally,
    the respondents argued that the appeal judge was correct to find that the
    master erred by failing to appreciate the significance of the prejudice caused
    by the 2014 death of the respondents witnesses. The master had concluded that
    since the witnesses died before the action was struck from the list, prejudice
    from the deaths was unrelated to the motion to restore the action.

[13]

We
    agree, on other grounds, with the masters conclusion that the identified
    prejudice was irrelevant to the motion. As indicated, it is only where there is
    relevant delay that a plaintiff seeking to restore an action is required to
    meet the
Nissar

burden of demonstrating that there is an
    acceptable explanation for the delay in the litigation,
and
that, if the
    action was allowed to proceed, the defendant would suffer no non-compensable
    prejudice (emphasis in original). Since there is no delay requiring explanation
    in this case, there is no need to inquire into prejudice.

[14]

Before
    concluding, we want to make clear that although the focus is on subsequent
    delay during a motion to restore an action to the trial list after a r. 48.14(4)
    order has been made, if there has been material delay in meeting the timetable,
    it is appropriate to consider the entire history of delay in the action when
    deciding whether to reinstate. That history of delay and the difficulties it
    has caused is relevant when considering whether the defendant will experience
    non-compensable prejudice if the action is restored to the trial list.

[15]

The
    appeal is allowed and the order of the master restoring the action to the trial
    list is affirmed. The costs order made by the appeal judge is vacated. As agreed,
    we order partial indemnity costs to Mr. Stokker in the appeal below in the
    amount of $5,000 inclusive of HST and disbursements. We also order costs on
    this appeal on a partial indemnity basis in the amount of $4,000 inclusive of
    HST and disbursements.

John
    Laskin J.A.

Grant
    Huscroft J.A.

David M.
    Paciocco J.A.


