



COURT OF APPEAL FOR ONTARIO

CITATION:
Habib v. Mucaj, 2012
    ONCA 880

DATE: 20121214

DOCKET: C55652

LaForme and Watt JJ.A. and Lederman J. (
ad
    hoc
)

BETWEEN

Salman Habib

Plaintiff (Appellant)

and

Kloreta Mucaj and Leviq Tunaj

Defendants (Respondents)

Ken Singh, for the appellant

Josephine Stark, for the respondents

Heard: December 10, 2012

On appeal from the orders of Justice Brian P. OMarra of
    the Superior Court of Justice, dated May 29, 2012 and June 15, 2012.

ENDORSEMENT

Overview

[1]

The Master
set aside the Registrars order of
    dismissal
of the plaintiffs action and found that: (i) plaintiffs
    counsel provided a weak explanation for the delay, but there was no intentional
    delay; (ii) the delay was inadvertent; (iii) plaintiffs counsel moved promptly
    upon learning of the dismissal; and (iv) there was no evidence of actual
    prejudice to the defendants.

[2]

However, the appeal to the Superior Court of Justice was allowed and the
    order of the Registrar was reinstated.  This is because, according to the
    appeal judge, the Master:

1.   Misapprehended
    the totality of the evidence: first, in regard to the explanation of the
    litigation delay, and second, when he characterized the missing of crucial
    deadlines by counsel for the plaintiff as mere sloppiness or inadvertence.

2.   He failed
    to factor in the significant public interest in finality of proceedings.

[3]

The appeal judge in this case rested his decision principally on the
    explanation for the delay.  He identified the Masters error in this regard as
    misapprehending the evidence on delay causing him to wrongly find it mere
    sloppiness or inadvertence.  His opinion was that the evidence of delay
    amounted to conduct that was either negligent or bordering on negligent. 
    The plaintiff appeals this decision.

Analysis

[4]

It is well settled that a misapprehension of evidence may involve
    a failure to take into account an item or items of evidence relevant to a
    material issue, or it may have to do with a mistake about the substance of the
    evidence.  A misapprehension of evidence may also reflect a failure to give
    proper effect to evidence:
R. v. Mahmood
, 2011 ONCA 693, at para. 46. 
    The appeal judge in this case appears to suggest that the Master did not appreciate,
    or did not give proper effect to the evidence about the delay.  We disagree.

[5]

There are four well established factors to
    consider when deciding to set aside an order to dismiss an action: (i)
explanation
    of the litigation delay
 a deliberate decision not to advance the
    litigation will usually be fatal; (ii)
inadvertence in missing the deadline
 the intention always was to set the action down within the time limit; (iii)
the
    motion is brought promptly
 as soon as possible after the order came to the
    partys attention; and (iv)
no prejudice to the defendan
t
 the
    prejudice must be significant and arise out of the delay:
Reid v. Dow
    Corning Corp.

(2001), 11 C.P.C. (5
th
) 80 (Ont. Div.
    Crt.).

[6]

No one factor is necessarily decisive of the issue.  Rather, a
    contextual approach is required where the court weighs all relevant
    considerations to determine the result that is just.  Here, the Master
    specifically referenced the proper test and engaged in the weighing exercise. 
    He found that, after the weighing exercise, the just result was to set aside
    the dismissal order.  The Masters order was discretionary and was made as part
    of his duty to manage the trial list.  The decision, therefore, attracts
    significant deference from a reviewing court:
Finlay v. Paassen
, 2010
    ONCA 204.

[7]

Furthermore, on a motion to set aside a dismissal order, the court
    should be concerned primarily with the rights of the litigants, not with the
    conduct of their counsel.  However, where the lawyers conduct is not
    inadvertent but deliberate, this may be different:
Marché dAlimentation
    Denis Thériault Ltée. v. Giant Tiger Stores Ltd.

(2007), 87 O.R.
    (3d) 660 (O.C.A.), at para. 28.  Here, the plaintiff lawyers conduct was
    found by the Master not to be deliberate.  Simply because the appeal judges
    view is that the conduct was negligent or bordering on negligent, does not
    mean the Master was not entitled to find the conduct not to be deliberate or
    not intentional.

[8]

In assessing the Masters findings of fact under the
Reid
factors,
    the appeal judge was required to decide whether the findings were unreasonable
    or unsupported by the evidence.  He was not entitled to replace one reasonable
    inference for another, merely because he disagreed with
    the decision under review.

[9]

The inference drawn by the Master  that the delay was mere sloppiness
    or inadvertence  is a reasonable one based on the evidence.  The fact that the
    inference of the appeal judge - that the delay was caused by negligence  is
    also reasonable does not amount to reversible error on the part of the Master. 
    The Masters decision was entitled to significant deference and the appeal
    judge was in error in failing to accord it.

[10]

Finally,
    the Masters reasons reflect an understanding of the significant public
    interest in finality of proceedings factor, which he properly considered along
    with the
Reid
factors, and not as a stand-alone one.  The Master
    recognized that the dismissal of the action more than two years following the
    expiry of the limitation period gave rise to a presumption of prejudice. 
    However, he found that the plaintiff had rebutted the presumption and that the
    defendants failed to show any actual prejudice to them.  The Master noted that
    the key independent witness was still available and had a clear recollection of
    the accident.  As well he observed that documentary evidence in the form of
    clinical notes, medical records, and the plaintiffs family physicians notes
    were also available.  Given this, the significant public interest factor alone
    is not a reason to interfere with the Masters decision.

[11]

In
    the end, the Master considered and balanced all the appropriate factors.  His
    conclusion based on the evidence was reasonable and there is no basis to
    interfere with it.

Disposition

[12]

For these reasons, the appeal is allowed and the decision of the
    Master is ordered reinstated.  The appellant is awarded his costs of the appeal
    fixed in the amount of $10,000 inclusive of disbursements and HST.  He is also
    awarded his costs in the Superior Court of Justice fixed at $7,500, also
    inclusive of disbursements and HST.

H.S. LaForme J.A.

David
    Watt J.A.

S.
    Lederman J. (
ad hoc
)


