



COURT OF APPEAL FOR ONTARIO

CITATION: Erland v. Ontario, 2019 ONCA 689

DATE: 20190905

DOCKET: C66592

Paciocco, Harvison Young and Zarnett JJ.A.

BETWEEN

Michael Erland

Plaintiff (Appellant)

and

Her Majesty the Queen in right of Ontario, City
    of Ottawa,
R.W. Tomlinson Ltd.
, Rideau Valley Conservation Authority

Defendants (
Respondent
)

Tim Gleason, for the appellant

Derek V. Abreu and Trevor J. Buckley, for the respondent

Heard: August 13, 2019

On appeal from the judgment of Justice Calum U. C. MacLeod
    of the Superior Court of Justice, dated January 17, 2019, with reasons reported
    at 2019 ONSC 462.

REASONS FOR DECISION

A.

OVERVIEW

[1]

In July 2013, Michael Erland, the appellant, sued R.W. Tomlinson Ltd., the
    respondent, for damages relating to the flooding of his property. He also sued
    the Crown in right of Ontario, the City of Ottawa, and the Rideau Valley
    Conservation Authority in the same action for contributing to the flooding. In June
    2018, the appellant brought a motion for a status hearing under r. 48.14(5) of
    the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194. He sought to
    extend the time to set the matter down for trial beyond its fifth anniversary,
    at which point the registrar would generally be required to dismiss the action
    for delay pursuant to r. 48.14(1). On January 17, 2019, after the status
    hearing, the motion judge dismissed the action pursuant to r. 48.14(7)(a), as he
    found that the appellant had not reasonably explained the delay.

[2]

The appellant appeals the order dismissing his action. The heart of his
    argument is that while the motion judge articulated the correct test to be
    applied, he fell into error by applying a much more stringent test,
    misapprehending the evidence, ignoring relevant evidence, and drawing
    unreasonable inferences. He says that the motion judge did not consider the
    effect of a pending summary judgment motion and should have only required the
    appellant to explain the delay since September 19, 2016. The appellant also submits
    that the motion judge failed to adequately consider that the other defendants had
    consented to the action continuing on a proposed timetable.

[3]

We would dismiss the appeal for the following reasons.

B.

The applicable law

[4]

It is common ground that the motion judge correctly identified the
    applicable law. Subrules 48.14(5)-(7) provide that where the plaintiff seeks to
    extend the deadline to set an action down for trial, the plaintiff/moving party
    must show cause why the action should not be dismissed for delay. In order to
    meet this burden the plaintiff must prove that (1) there is an acceptable explanation
    for the delay and (2) that allowing the action to proceed would not cause the
    defendant(s) to suffer non-compensable prejudice:
Kara v. Arnold
, 2014
    ONCA 871, 328 O.A.C. 382, at para. 8. This test is conjunctive.

[5]

A motion judges decision to dismiss an action for delay pursuant to r. 48.14(7)(a)
    is discretionary. In the absence of an error of law or principle or a palpable
    and overriding error of fact, this decision is entitled to significant deference
    on appeal: see
Kara
, at para. 8.

C.

Analysis

[6]

The motion judge concluded that he would exercise his discretion to dismiss
    the action as the appellant had failed to establish an adequate explanation for
    the delay. He reviewed the various steps and delays in the litigation. He was
    acutely aware of the issues and the nature and details of this matter because
    he had been a regular (though not continuous) case management master and then
    judge on this file since 2014. He did not, as the appellant submits, conduct a
    blaming exercise for the delay. In fact, he acknowledged that the respondent
    contributed to some of the delay, in particular, the shockingly slow pace of
    the summary judgment motion. Having found that the appellant had not shown an
    adequate explanation for the delay, the motion judge found it unnecessary to
    consider whether prejudice had been caused to the defendants as a result.

[7]

The appellant relied principally on two factors to explain the delay in
    the action. First, he relied on the fact that his original lawyer had become
    ill, which necessitated him changing counsel. He argued that this contributed
    to the delay in advancing the litigation. The motion judge rejected this
    explanation, stating that he did not regard the bald assertion that previous
    counsel was ill as an explanation when that counsel was bringing motions and
    appearing at case conferences. The motion judge noted that [i]n any event,
    the plaintiff has been represented since December of 2015 by highly competent
    counsel who is well aware of the steps needed to bring an action to conclusion.
    The motion judges rejection of this explanation was clear and open to him on
    the record.

[8]

Second, the appellant claimed that the respondents outstanding summary
    judgment motion had caused the delay in setting the matter down. The motion
    judge found that the summary judgment motion was not an adequate explanation
    for the delay because the appellant could still have set the action down for
    trial. He noted that [u]nless it is done by agreement or order, it is unwise
    to effectively put an action on hold pending a potential summary judgment
    motion. He was not persuaded that the plaintiff ha[d] made any reasonable
    effort to schedule discoveries or to accelerate the process.

[9]

The appellant argues that the motion judge erred in law by suggesting
    that he should have pressed ahead with scheduling discoveries in light of the
    pending summary judgment motion. We do not agree. First, as already noted, the motion
    judge considered the slow pace of the summary judgment motion. In the larger
    circumstances, he declined to give that factor much weight. Second, this was
    not a determination of law but rather a highly contextual and fact-specific determination
    of whether the appellant had met his onus of adequately explaining the delay. The
    motion judges conclusion that the delays related to the summary judgment
    motion did not adequately explain the delay in setting the matter down for
    trial was open to him on the record.

[10]

The
    motion judge also considered the delay between October 2016 and December 2017, during
    which time the appellant failed to comply with an order to make further
    disclosure relevant to a limitations defence. The disclosure was ordered
    following a refusals motion argued on October 13, 2016. The appellants failure
    to comply was the subject of a further motion on December 19, 2017. While at
    this time the motion judge found that the appellants response was
    disingenuous, he declined to dismiss the action for breach of a court order
    and gave him one more opportunity to fulfill his obligations of disclosure. He
    did so specifically without prejudice to a motion to dismiss the action for
    delay.

[11]

We
    do not accept the appellants submission that the motion judge should have
    confined his inquiry to explanations for delay since September 19, 2016, when
    Master Champagne made an endorsement adjourning a summary judgment motion. In
Stokker
    v. Storoschuk
, 2018 ONCA 2, 140 O.R. (3d) 473, this court held that
    [w]here delay has been addressed in a prior court order, or consented to, it
    is any subsequent delay that requires explanation: at para. 5. However, unlike
Stokker
, and the decisions it cites, the order made on September 19,
    2016 neither addressed the overall delay in the action, nor was it a consent order
    from which it can be inferred that the parties were content with the pace of
    the litigation. Here, the order was focused on the contested question of
    whether a summary judgment motion should be adjourned in light of the timing of
    a refusals motion. The motion judge was therefore not required to focus only on
    delay that occurred after this order was made.

[12]

Further,
    the motion judge did not err by dismissing the action as against all the
    defendants even though all but Tomlinson had consented to a timetable proposed
    by the appellant. The motion judge was alive to this fact and noted this in his
    reasons. There were crossclaims brought by all the defendants. While a
    timetable signed by
all
parties can provide relief
    from dismissal for delay when the requirements of r. 48.14(4) are satisfied,
    this does not mean that a timetable unopposed by
some
of the parties in any way binds the motion judge. When a status hearing is
    convened pursuant to r. 48.14(5), as was the case here, the motion judge has
    clear discretion to dismiss the action for delay.

[13]

The
    motion judge concluded that the appellant did not have an adequate explanation
    for the delay and exercised his discretion to dismiss the action. We see no
    basis for the intervention of this court. The motion judge considered the
    factual context, and was mindful of the complexity of the case and the conduct
    of the defendants, as he was required to be. He nonetheless found the
    explanations for delay to be incomplete and unconvincing, and hence that the
    appellant failed to meet his burden under r. 48.14(7). We are not persuaded
    that in applying the test the motion judge effectively required the appellant
    to show that he
could not
have moved the action forward.
    As we have said, the motion judge correctly articulated and applied the correct
    legal principles and his decision to dismiss the action was amply grounded in the
    record before him.

D.

Conclusion

[14]

The
    appeal is dismissed. Costs of this appeal are to be paid by the appellant in
    the amount of $10,000 inclusive of applicable taxes and disbursements.

David. M. Paciocco
    J.A.

A. Harvison Young
    J.A.

B. Zarnett J.A.


