


COURT OF APPEAL FOR ONTARIO

CITATION:
Bolohan v. Hull, 2012
    ONCA 121

DATE: 20120222

DOCKET: C53947

Sharpe, Armstrong and Watt JJ.A.

BETWEEN

Denise Bolohan

Plaintiff (Appellant)

and

Judith Hull

Defendant (Respondent)

William G. Scott, for the appellant

Mark D. Contini, for the respondent

Heard: February 7, 2012

On appeal from the order of Justice K.A. Gorman of the Superior
    Court of Justice, dated June 3, 2011.

ENDORSEMENT

[1]

The appellant, the plaintiff in a wrongful dismissal action, appeals the
    decision of a Superior Court Judge (the appeal judge), allowing an appeal
    from an order of a Master made at a rule 48.14 status hearing, and dismissing her
    action for delay.

[2]

The appellant and the respondent are both lawyers. The appellant was
    formerly employed by the respondent. She was terminated in October 2006 and
    brought this action claiming damages for wrongful dismissal.

[3]

Although one of the issues on this appeal is the state of the record before
    the Master, at the end of the day, the essential facts do not appear to be in
    dispute. These may be gleaned from the reasons of the Master and the fresh
    evidence filed and admitted on this appeal.

[4]

The steps taken in the action may be summarized as follows:

·

September 18, 2008  Notice of Action filed

·

October 17, 2008  State of Claim delivered

·

November 6, 2008  Notice of Intent to Defend filed

·

November 27, 2008  Statement of Defence delivered

·

Respondent served Offer to Settle. Appellant did not respond and
    the offer was withdrawn.

·

Court assigned a settlement conference date of November 24, 2010
    (action came under Case Management pursuant to Rule 77).

·

Mediation session date to be scheduled for no later than November
    24, 2009

·

March 27, 2009  Appellants counsel attempted to schedule the
    mediation

·

May 11, 2009  Respondents counsel responded by letter opposing the
    appointment of the proposed Roster Mediator and suggesting a non-Roster
    Mediator. Appellants counsel did not reply to this letter

·

November 18, 2010  Court issued a Status Notice

·

February 9, 2011  Appellant requested that the Court schedule a status
    hearing

·

April 4, 2011  Status hearing held before the Master.

[5]

Before the status hearing, counsel for the respondent wrote to counsel
    for the appellant advising that he would be asking the Master to dismiss the
    action for delay. Counsel for the appellant replied that he would address the
    issue at the status hearing and proposed a timetable in order to move the
    matter forward. Counsel for the respondent rejected the timetable proposed by
    the appellant.

[6]

On the basis of the oral representations made at the status hearing, the
    Master concluded that although it appeared that the plaintiff had no
    explanation for a delay of some 22 months, the defendant had sat idly waiting
    for the case to come up. The Master noted that the defendant herself had failed
    to comply with the rules, presumably a reference to the fact that the
    respondent had failed to file her affidavit of documents. The Master concluded
    that the respondents request that the action be dismissed for delay should be
    denied. Pursuant to her discretion under rule 48.14 (13), the Master prescribed
    a detailed timetable and discovery plan for the completion of the action.

[7]

As we read her reasons, the appeal judge allowed the appeal from the
    Master on the ground that the appellant failed to satisfy her onus under the
    rule 48.14 because she failed to file affidavit evidence.

[8]

In our view, the Superior Court judge erred in so holding. The usual
    practice is for the initial status hearing to proceed on the basis of oral
    submissions. If the judicial officer conducting the status hearing forms the
    view, on the basis of the oral submissions, that the action is vulnerable
    dismissal for delay, ordinarily a full hearing will be ordered on affidavit
    evidence: see
Oberding v. Sun Life Financial Assurance Co. of Canada
2010 ONSC 3303, 267 O.A.C. 120 (Div. Ct.), at para. 25;
Koepcke v. Webster
,
    2012 ONSC 357 (Master), at para. 13.

[9]

We note as well that counsel for the respondent made no objection to the
    appellant's counsel outlining the facts by way of oral submissions.

[10]

In
    these circumstances, it is our view that counsel for the appellant was entitled
    to proceed before the Master at the initial status hearing without affidavit
    evidence. The appeal judge therefore erred in finding that the appellant had
    failed to meet the onus imposed by rule 48.14 to explain the delay simply because
    no affidavits were filed.

[11]

This
    leads us to conclude that the appeal judges order must be set aside.

[12]

Ordinarily,
    this would leave us with the decision of the Master, which would attract
    deference. In our view, however, the Master misstated the proper legal test to
    be applied at a rule 48.14 status hearing. At two points in her endorsement,
    the Master stated that the test to be applied is the same as on a motion to
    dismiss for delay under Rule 24. That rule imposes a burden on the defendant to
    show why the action should be dismissed and makes it a condition to a
    defendants request to have the action dismissed for delay that the defendant
    not be in default under the rules. It was conceded in argument before us that
    Rule 24 has no application to a rule 48.14 status hearing.

[13]

At
    another point in her endorsement, however, the Master stated the proper test: the
    plaintiff bears the burden of demonstrating that there is an acceptable
    explanation for litigation delay and that, if the action is allowed to proceed,
    the defendant will suffer no non-compensable prejudice:
Oberding v. Sun
    Life Financial Assurance Co. of Canada
, at para 15; see also
Kahn v.
    Sun Life Assurance Company of Canada
2011 ONCA 650 at para 1. However, it
    is not clear to us that, in the end, the Master applied the correct test.

[14]

In
    these circumstances we could remit the matter to the Superior Court for another
    status hearing. We are, however, satisfied that the relevant, undisputed facts
    before us are sufficient to make our determination and that to do so is in the
    interests of justice.

[15]

Although
    we regard this case as a very close call, we are of the view that the action
    should be permitted to proceed according to the timetable set out by the
    Master, with the dates adjusted to the release date of these reasons.

[16]

The
    appellants failure to move this action forward in a timely manner is
    troubling. On the other hand, we do not agree with the respondent that there
    was an unexplained delay of 22 months. The appellant attempted to schedule a
    mediation four months after the statement of defence was filed, but was met with
    the respondents insistence of a non-roster mediator. Counsel for the appellant
    assumed that the court would automatically assign a roster mediator, in
    accordance with what he believed to be the usual practice. That did not occur.
    The delay from the appellant's attempt to schedule the mediation to the
    Court-served status notice was almost eight months. Three months later, the
    appellant asked the court to schedule a status hearing. Prior to the status
    hearing, the appellant proposed a timetable that would have set the matter down
    for trial by the end of 2011.

[17]

Although
    the appellant failed to prosecute this action in an appropriate fashion, the question
    is whether the delay has been sufficiently explained so as to allow the action
    to proceed. While the focus of the inquiry on a rule 48.14 status hearing is
    the plaintiffs conduct, the conduct of the respondent in the litigation can
    still have bearing on our assessment of the reason for the delay and on how we
    the exercise the discretion conferred by rule 48.13. The respondent may have
    been strictly entitled to insist on a non-roster mediator. That would, however,
    involve more expense and is hardly a tactic consistent with a willingness to
    see a relatively straightforward case proceed expeditiously. The respondent
    also failed to file her affidavit of documents despite the fact that virtually
    all of the relevant documents would be in the respondents possession. Although
    the respondents conduct  is not fatal to a request to have the action
    dismissed as a status hearing, it demonstrates that the delay was not
    exclusively attributable the appellant, as she did take some steps to move the
    action forward but faced some resistance on the part of the respondent.

[18]

For
    these reasons, the appeal is allowed and the order of the appeal judge is set
    aside. In its place, an order based upon para. 21 of the Masters endorsement,
    adjusted as indicated in these reasons, shall issue. Costs to the appellant in
    the agreed sum of $7,500 inclusive of disbursements and HST.

Robert J. Sharpe J.A.

R.P. Armstrong J.A.

David Watt J.A.


