



COURT OF APPEAL FOR ONTARIO

CITATION:

Mihoren v. Quesnel, 2021 ONCA 898

DATE: 20211216

DOCKET: C68997

Brown, Roberts and
    Zarnett JJ.A.

BETWEEN

Cherie
    Anne Marie Mihoren

Applicant
    (Appellant)

and

Alan Quesnel

Respondent (Respondent)

Michael Zalev and Kristy Warren, for the appellant

Samuel Mossman, for the respondent

Heard: June 30, 2021 by video conference

On appeal from the order of Justice Pamela
    L. Hebner of the Superior Court of Justice, dated December 11, 2020,
with reasons at 2020 ONSC 7724
.

Zarnett J.A.:

OVERVIEW

[1]

The appellants application for payment of
    support by the respondent was administratively dismissed under r. 41(6) of the
Family
    Law Rules
, O. Reg. 114/99. The appellant missed a deadline, that her lawyer
[1]
had neglected to diarize, by
    which certain steps had to be taken.

[2]

The motion judge refused to set aside the
    dismissal order and re-instate the application so that it could be determined
    on its merits.

[3]

For the reasons that follow, I would allow the appeal
    and set aside the dismissal order.

[4]

A decision whether to set aside an
    administrative dismissal involves an exercise of discretion guided by certain
    principles. Relevant factors include whether there is an explanation for the
    delay, whether the dismissal arose due to inadvertence, whether the motion to
    re-instate the proceeding was brought promptly, and whether there is prejudice.
    These factors are not, however, to be viewed as a series of rigid hurdles for
    the moving party to meet. Rather, a contextual approach is to be taken. The
    overall question is whether it is just to uphold the dismissal in all of the
    circumstances, weighing two competing policy objectives: the objective that
    proceedings should be determined on their merits, and the objective that
    proceedings should be resolved in a timely and efficient manner to maintain
    public confidence in the administration of justice.

[5]

In my view, the motion judge made errors in
    principle which, in this case, justify appellate interference with her exercise
    of discretion.

[6]

The motion judge properly found that there had
    been a delay in moving the application forward for which no adequate explanation
    was offered; however, she in essence treated that factor as a rigid unmet
    hurdle. Although she noted that the dismissal arose due to inadvertence of the appellants
    lawyer, and that the appellants motion to set aside the dismissal order was
    brought promptly, she failed to ascribe any significance to those factors, and erred
    in her analysis of prejudice. She failed to take the proper contextual approach
    and to consider the policy
favouring
the resolution of this
    proceeding on its merits. Moreover, after recognizing that the absence of a
    limitation period for support claims meant that the appellant could start a new
    proceeding, she failed to consider how upholding the dismissal would actually advance
    the goal of timely and efficient resolution.

[7]

On a proper consideration of all the circumstances,
    the dismissal should have been set aside.

PROCEDURAL HISTORY

(1)

Steps in 2017-2018

[8]

On October 23, 2017, the appellant commenced an
    application for spousal support against the respondent. She alleged that,
    although she and the respondent were not married, they had cohabited
    continuously between 2005 to 2016 and were therefore spouses with support
    entitlements and obligations under Part III of the
Family Law Act
, R.S.O. 1990, c. F.3
.

[9]

The respondent filed an answer in December 2017.
    He disputed the appellants characterization of their relationship and that
    they had cohabited continuously for over three years (the relevant time period
    to trigger spousal status under Part III of the
Family Law Act
:

s.
    29). Therefore, he denied that she had any entitlement to support from him, as
    she lacked the status of a spouse.

[10]

There was activity in the litigation in 2018.
    The parties attended a case conference in March 2018. The lawyer for the
    appellant arranged for questioning and cross-examination on financial
    statements to take place. The respondents questioning was, at his counsels
    request, scheduled to accommodate his travels outside of Canada, and was
    completed on October 29, 2018. The appellants questioning was completed on
    November 1, 2018.

[11]

In early November 2018, the lawyers for the
    parties exchanged correspondence. The appellants lawyer provided certain documents
    and indicated that the appellant was in the process of collecting other
    information and documents relating to undertakings given on her questioning. He
    also demanded certain productions from the respondent; when they were not
    forthcoming, he indicated he would bring a motion.

(2)

The Deadline for
    Dismissal

[12]

As the appellants case was not in the Family
    Court of the Superior Court of Justice, r. 41 of the
Family Law Rules
applied.

[13]

On October 26, 2018, a clerk of the Superior
    Court sent a notice of approaching dismissal under r. 41(5) of the
Family
    Law Rules
, as the case had not been settled, withdrawn, or scheduled for
    trial within 365 days of its commencement. The notice provided that the clerk
    would dismiss the case unless, within 60 days (that is, by December 27, 2018), one
    of the steps specified in r. 41(6) of the
Family Law Rules
was
    taken. Those steps are: obtaining an order lengthening time, filing an
    agreement for a final order disposing of all issues and a notice of motion to
    carry out the agreement, serving a notice of withdrawal discontinuing the case,
    scheduling the case for trial, or arranging a case conference or settlement
    conference for the first available date.

[14]

One of those steps  obtaining an order lengthening
    time  was taken. The court made an order on December 6, 2018, on the consent
    of the parties, extending the time for dismissal that had been specified in
    the notice to October 25, 2019. In other words, October 25, 2019 became the new
    deadline by which one of the steps in r. 41(6) had to be taken to avoid
    dismissal of the application by the clerk.

[15]

Notwithstanding the importance of this deadline,
    the appellants lawyer did not diarize it, due to what the motion judge
    accepted was inadvertence.

(3)

2019 and the
    Administrative Dismissal

[16]

The appellant gave evidence that she met with
    her lawyer in February 2019. He told her to prepare a list of witnesses who
    would have to meet with him and provide signed statements. She prepared such a
    list and was directed by her lawyer to contact witnesses and arrange
    appointments for them to meet with him. Some witnesses provided statements over
    the next several months, while others were unwilling to get involved. The
    appellant acknowledged that the compilation of a final witness list for a
    settlement conference was delayed.

[17]

However, the only communication between counsel
    in 2019, prior to the new dismissal date, was a letter dated July 6, 2019, in
    which counsel for the respondent wrote to the appellants lawyer, listing the
    undertakings given on the appellants questioning, and requesting answers by
    the end of the month.

[18]

That letter was not answered, and prior to
    October 25, 2019, none of the steps specified in r. 41(6) to prevent dismissal of
    the action were taken.

[19]

Accordingly, on October 26, 2019, the court
    issued an order under r. 41(6) of the
Family Law Rules
, dismissing the
    appellants application.

(4)

The Motion to Set
    Aside

[20]

The appellants lawyer received the dismissal
    order in November 2019; shortly afterwards, there was a fire at his office
    building, delaying his access to files and equipment.

[21]

The appellant brought a motion to set aside the
    dismissal order under r. 41(9) on February 27, 2020, returnable March 20,
    2020. As a result of the pandemic, the motion could not be heard until August
    14, 2020.

[22]

The motion was supported by an affidavit of the
    appellant which outlined the history described above, and stated that she had
    maintained her desire to proceed with her claim for support throughout, wished
    to proceed with it, and was prepared to do what is necessary to expedite the
    hearing of a Settlement Conference and thereafter expedite the Trial in this
    matter. Her lawyers assistant swore an affidavit that she had inadvertently
    failed to diarize the date for dismissal of October 25, 2019, that her
    office had continued to process the Application  to October 25
th
,
    2019, and that at no time was she given any indication by the appellant or her
    lawyer that the appellants claims were not being pursued.

[23]

The respondent also swore an affidavit. Among
    other things, he swore that he was told by his lawyer of the dismissal order on
    November 4, 2019 and that the appellant had to move expeditiously to set it
    aside if it came about inadvertently and she wished to continue with her
    Application.
He also stated that [a]s time passed,
    [he] came to believe that the matter was finished, that the Application has
    been a source of stress and aggravation for [him], and that he was pleased
    and relieved when in late 2019 [he] came to believe that it was over.

(5)

The Motion Judges
    Decision

[24]

The motion judge referred to the onus on family
    law litigants to move cases forward in a timely manner, with the expectation
    set by rr. 41(5) and (6) that they will be resolved or scheduled for trial
    within a year. She noted that the timelines exist for a purpose, related to the
    invasive nature of family law litigation and the burden it often places on
    parties, and that the court should not rubber-stamp requests to set aside
    administrative dismissals. She referred to case law from this court, including
H.B.
    Fuller Company v. Rogers (Rogers Law Office)
, 2015 ONCA 173, 386
    D.L.R. (4th) 262, that set out the principles to be considered when deciding whether
    to set aside an administrative dismissal in civil cases under r. 48 of the
Rules
    of Civil Procedure
, R.R.O. 1990, Reg. 194. She accepted that the civil approach
    should inform the approach to an administrative dismissal under the
Family
    Law Rules
, within the context of the primary objective of those rules, dealing
    with cases justly: r. 2(2).

[25]

The motion judge then proceeded to consider what
    was referred to in the case law as the four
Reid
[2]
factors, as they applied to
    the facts. The
Reid
factors are: whether there was an explanation for
    the delay that led to the dismissal order, whether the deadline set out in the
    notice was missed due to inadvertence, whether the motion to set aside the
    dismissal was prompt, and whether there has been prejudice to the responding
    party.

[26]

On the first
Reid
factor, she found
    that the appellant had not provided an adequate explanation of the litigation
    delay that followed the extension, in late 2018, of the deadline for dismissal.
    On the second, she accepted the evidence of the appellants lawyers legal
    assistant that she had inadvertently failed to diarize the dismissal date of
    October 26, 2019, and that the appellant had been in touch with her lawyers
    office up to that date and never indicated an intention to discontinue her
    proceeding. The motion judge considered that to be an explanation as to why the
    lawyers office did not deal with the case when the dismissal date was
    approaching, but not an explanation as to why no real steps were taken in the
    12 months prior to the dismissal date.

[27]

On the third
Reid
factor  whether the
    motion to set aside the dismissal order was brought promptly  she noted that respondents
    counsel fairly concedes that this factor has been met.

[28]

Turning to the fourth
Reid
factor, the
    issue of prejudice, she stated that no limitation period had expired (there
    being none for a support claim
[3]
)
    and a new claim could be brought. She considered the only prejudice to be that
    arising from the passage of time. Although she noted that there was no
    indication that evidence had been lost by the passage of time, she said it can
    be presumed that a witnesss recollections will be somewhat dimmed.

[29]

The motion judge returned to the issue of the
    appellants delay after the 2018 order extending time, stating that thereafter,
    [s]he displayed  inertia, at best, or a complete lack of interest, at worst,
    and noting the lack of an adequate explanation for that delay. She concluded:

Under all of the circumstances of this case, even though the
    only identifiable prejudice to the respondent is the passage of time, I am not
    prepared to set aside the dismissal order. I recognize that, without the
    passage of a limitation period, the [appellant], should she choose to, can
    issue a new claim. Even though that is true, I find I cannot countenance her
    delay in the case currently before the court by setting aside the dismissal
    order.

LEGAL FRAMEWORK

(1)

The Relevant Rules

[30]

Rules 2(2)-(4) of the
Family Law Rules
provide that:

(2) The primary objective of these rules is to enable
    the court to deal with cases justly.

(3) Dealing with a case justly includes,

(a) ensuring that the procedure is fair to all
    parties;

(b) saving expense and time;

(c) dealing with the case in ways that are
    appropriate to its importance and complexity; and

(d) giving appropriate court resources to the case
    while taking account of the need to give resources to other cases.

(4) The court is required to apply these rules to
    promote the primary objective, and parties and their lawyers are required to
    help the court to promote the primary objective.

[31]

Rule 41 provides in relevant part as follows:

(5) The
    clerk shall serve a notice of approaching dismissal (Form 39) for a case on the
    parties by mail, fax or email if the case has not been settled, withdrawn or
    scheduled or adjourned for trial before the 365th day after the date the case
    was started.



(6) A case for which a notice of approaching
    dismissal has been served shall be dismissed without further notice, unless one
    of the parties, within 60 days after the notice is served,

(a) obtains an order under subrule (3) to lengthen
    that time;

(b) files an agreement signed by all parties and
    their lawyers, if any, for a final order disposing of all issues in the case,
    and a notice of motion for an order carrying out the agreement;

(c) serves on all parties and files a notice of
    withdrawal (Form 12) that discontinues all outstanding claims in the case;

(d) schedules or adjourns the case for trial; or

(e) arranges a case conference or settlement
    conference for the first available date.

(6.1) If a case conference or settlement conference
    is arranged for a date as described in clause (6) (e), but the hearing does not
    take place on that date and is not adjourned by a judge, the case shall be
    dismissed without further notice.

(6.2) The clerk shall dismiss a case under subrule
    (6) or (6.1) by preparing and signing an order dismissing the case, with no
    costs payable by any party.



(9) A judge may, on motion, set aside an order of the
    clerk under subrule (6).

(2)

The Standard of Review

[32]

The standard of review on an appeal from an
    order refusing to set aside an administrative dismissal of an action under the
Rules
    of Civil Procedure
is well-established. That standard recognizes that such
    an order is discretionary and entitled to deference on appeal. Appellate
    interference is justified only if the motion judge proceeded on an erroneous
    legal principle or made a palpable and overriding error with respect to the facts
     [or] where the lower court gives no or insufficient weight to relevant
    considerations:
Fuller
, at para. 19.

[33]

The appellant submits, and the respondent did
    not contest, that the same standard of review should apply to the review of a
    refusal to set aside an administrative dismissal under the
Family Law Rules
.
    I agree.

DISCUSSION

(1)

The
Fuller
Principles Apply to Family Law Administrative Dismissals

[34]

I agree with the motion judge that the
    principles derived in the context of civil cases, such as
Fuller
, are appropriate
    to inform the approach to motions under r. 41(9) of the
Family Law
    Rules
. Although the motion judge went on to state that those principles must
    be considered in the context of the primary objective of the
Family Law
    Rules
,
as described in rr.
    2(2)-(4), I do not read the motion judge to have been suggesting that this
    justified a departure from the approach in
Fuller
. In any event, in my
    view, there is nothing inconsistent between the
Fuller
principles and
    the fulfillment of the primary objective of the
Family Law Rules
, dealing with cases justly
.

[35]

Fuller
holds,
    at para. 20, that on a motion to set aside an administrative dismissal, the
    court should consider the
Reid
factors: the length of the delay and whether
    there is an explanation for it, whether the failure to meet mandated time
    limits was due to inadvertence, whether the motion to set aside the dismissal
    order was brought promptly, and whether delay has prejudiced the responding
    party.

[36]

But
Fuller
makes it clear that these
    factors are not to be treated as a rigid set of hurdles the moving party must
    meet. Instead, an overall contextual approach is required that takes into
    account those factors and all of the relevant circumstances, including the
    conduct of both parties. The goal is to reach a just result, bearing in mind
    two underlying principles that can be in tension: (i) that actions should be
    decided on their merits, and (ii) that actions should be resolved in a timely
    and efficient manner to maintain public confidence in the administration of
    justice:
Fuller
, at paras. 21-25.

[37]

Fuller
also
    explains that, in general, the courts preference will be to decide matters on
    their merits. This preference will be more pronounced where delay results
    from an error of counsel, so as not to penalize a client for inadvertence of
    their lawyer. The rights of all parties must be considered, including whether
    the defendant has suffered non-compensable prejudice as a result of the delay,
    whether a fair trial is still possible, and whether the defendant placed
    justifiable reliance on the termination of the proceeding:
Fuller
, at
    paras. 25-28.

[38]

Giving effect to these principles is consistent
    with the primary objective of the
Family Law Rules
: that the court
    deal with cases justly. An administrative dismissal order is a result
    contemplated by the
Family Law Rules
and recognizes the policy that
    family law cases should be resolved in a timely and efficient manner to
    maintain public confidence in the administration of justice. But the

Family
    Law Rules
also empower a judge to make an order setting aside an
    administrative dismissal, recognizing the policy that cases should be decided
    on their merits. Whether the primary objective is better served in a particular
    case by setting aside the dismissal order and allowing the case to be
    determined on its merits, or by leaving the dismissal order in effect because
    procedural rules were violated, is appropriately guided by the
Fuller
principles, which address exactly that question  whether upholding or setting
    aside the dismissal is just in all of the circumstances.

(2)

The Motion Judge
    Erred in Applying the
Fuller
Principles

[39]

In my view, the motion judges approach involved
    three interrelated errors in principle. First, she failed to contextually
    evaluate the
Reid
factors as
Fuller
requires, essentially
    treating one as a rigid hurdle and giving no effect to two others. Second, she
    gave erroneous treatment to the factor of prejudice. Third, she failed to
    properly consider whether upholding the dismissal order constituted a just
    result in all of the circumstances, by misapplying the policy
favouring
timely resolution of family law proceedings and not properly
    considering the policy that
favours
proceedings being
    determined on their merits.

(i)

The Motion Judge Ignored Two Factors Rather than Treating the Factors
    Contextually

[40]

The motion judge was entitled to find that there
    was no adequate explanation for the lack of activity in moving the case forward
    after 2018. She was right to note that, prior to the administrative dismissal, answers
    to undertakings given at the appellants questioning were not provided, no
    response was made to the letter of respondents counsel seeking answers, and no
    motion was brought for production from the respondent as her lawyer had, in
    2018, indicated. However,
Fuller
is clear that the factor of delay
    without an adequate explanation is not to be approached as a rigid obstacle the
    appellant must meet, but rather a factor, among others, to be considered
    contextually.

[41]

One of the important contextual factors is
    whether a dismissal was the result of inadvertence.
Proper
    consideration of this factor may require separating the issue of overall delay
    from the precise reason a dismissal occurred.

[42]

The motion judge accepted the evidence of the
    appellants lawyers assistant that she had inadvertently neglected to diarize
    the October 2019 dismissal date, and that this explained why the appellants lawyer
    did not deal with the case as the dismissal date was approaching. The appellant
    points out, and the respondent does not dispute, that the appellants lawyer
    could have dealt with the matter and prevented the dismissal from occurring at any
    time before the dismissal deadline simply by taking the step of arranging a
    case conference or settlement conference for the first available date, as
    contemplated by r. 41(6)(e). Family law conferences are intended to
    significantly move cases forward and are an essential part of the family law
    procedural regime aimed at attaining a just result. At a conference, a judge
    may make orders about disclosure, expert evidence, and time-tabling, as well as
    direct the parties towards out-of-court settlement of some or all issues:
Family
    Law Rules
, r. 17(8).

[43]

In other words, although there was a litigation
    delay, the effect of it could have been avoided at any time up to October 2019,
    but was not, due to lawyers inadvertence. This was significant, for two
    related reasons.

[44]

First, both the existence of a procedural step
    that could get an action back on track and avoid dismissal resulting from
    delay, and the reason why it was not taken, are relevant to whether it is just
    in the circumstances to uphold a dismissal, especially where such a procedural
    step is a codified option under the
Family Law Rules
. In
Fuller
,
    the plaintiffs action was not expeditiously pursued. A status notice warning the
    plaintiffs of impending dismissal was sent by the court to the wrong address.
    The action was administratively dismissed. The motion judge refused to set aside
    the dismissal, remarking that the plaintiffs, even if they had received the
    status notice and arranged a status hearing, would not have been able to meet
    the test at the status hearing of showing that the action should not be
    dismissed. This court held that the motion judge had erred in failing to
    consider that, because of the non-receipt of the status notice, the plaintiffs
    had lost an opportunity to prevent the action from being dismissed. This loss
    of opportunity had to be considered in assessing whether it was just to set
    aside the dismissal order:
Fuller
,

at paras. 33-36.

[45]

Second, the preference of the court for deciding
    matters on their merits, as opposed to terminating actions on procedural
    grounds, is all the more pronounced where an error of inadvertence of counsel
    is involved:
Fuller
, at paras. 26-27 and 32.

[46]

The motion judge did not consider either of
    these points. After accepting that lawyers inadvertence was the explanation
    for why no step was taken to deal with the approaching dismissal, she did not
    refer to the loss of the opportunity the appellant had to avoid dismissal and
    get the application back on track by requesting a case or settlement conference.
    Nor did she refer to the significance of the lawyers inadvertence having made
    the courts preference for the determination of the matter on its merits more
    pronounced. Instead, she immediately returned to the factor of litigation
    delay, concluding the lawyers explanation for why no step was taken to deal
    with the approaching dismissal deadline did not explain the delay that had
    occurred in the litigation during the prior year. In effect, she ignored the
    significance of the fact that the deadline was missed due to lawyer
    inadvertence and treated the prior delay as the only relevant factor.

[47]

Similarly, on the factor of whether a motion was
    brought promptly to set aside the dismissal order, the motion judge noted that
    the respondent fairly concedes that this factor has been met.
[4]
But the motion judge did not
    further discuss what that signified or give it any weight. She did not consider
    this factor as one which bore on the justice of setting aside the dismissal
    order because, unlike the delay that preceded the dismissal, it was not
behaviour
which showed either inertia or a lack of interest in having the
    matter resolved on its merits. Nor did she consider its effect on the issue of
    prejudice, discussed below.

(ii)

The
    Motion Judge Erred in Her Analysis of Prejudice

[48]

The issue of prejudice to the respondent is an
    important one in deciding whether a dismissal order should be set aside or
    remain in place.
It is a key, if not
the
key
    consideration:
Chrisjohn v. Riley
, 2015 ONCA 713, 391 D.L.R. (4th)
    695,

at para. 36 (emphasis in original).
The court should consider
    whether there is prejudice to the defendants ability to defend  that is, whether
    a fair trial is still possible  because of events or steps that occurred
    following the dismissal or that would result from restoring the action. The
    court will also consider whether delay in moving to set aside the dismissal was
    so great that the principle of finality and the defendants reliance on the
    dismissal should prevail:
Fuller
, at paras. 37-45.

[49]

Here, there was no evidence of actual prejudice
    affecting fair trial rights. The respondent led no evidence of any witness or
    document that had become unavailable. The motion judge stated that there is no
    indication that evidence has been lost by the passage of time.

[50]

In a proper case, prejudice may be presumed, for
    example, because of the expiry of a limitation period or the death of a
    witness:
Fuller
, at para. 38. Neither circumstance was present here.
    The motion judge identified the only prejudice to be the passage of time. She
    appears to have considered this to support a presumption of prejudice because
    it can be presumed that a witnesss recollections will be somewhat dimmed by
    the passage of time, and because the existence of a family law case may mean that
    the parties are unable to move forward with their lives until it is completed.

[51]

In my view, the motion judge erred in both
    respects. While in certain circumstances, the passage of significant time could
    result in prejudice, the motion judge did not relate her finding about the
    effect of the passage of time on witnesses memories to the period of
    approximately four months between the dismissal order and the filing of the motion
    to set it aside. She did not explain how witnesses memories would diminish during
    that period. In other words, she did not explain how the respondent would be
    worse off, from the standpoint of witnesses ability to recall, than he was
    before the dismissal. Nor did she make any finding that fair trial rights were
    affected. Accordingly, this finding of prejudice is tainted by legal error and
    cannot stand.

[52]

The finding of prejudice due to the nature of
    family law proceedings is also tainted by error. The motion judges comment to
    the effect that in some cases, the mere existence of a family law proceeding
    prevents parties from moving forward with their lives could not be applied to
    this case without evidence that the respondent had been so affected. Although
    he gave evidence that the proceeding was stressful and he was relieved that it
    was over, he gave no evidence that he was unable to move on with his life if it
    continued. Indeed, during the litigation, his counsel had taken the position
    that his net worth, as disclosed on his Financial Statement, was so significant
    that he could afford any amount of support that would be ordered, and the only
    issue was entitlement.

[53]

Moreover, the motion judge noted that the factor
    that the motion be brought promptly was met. She made no finding that the
    respondent was entitled to rely on the security of the dismissal order under
    the principle of finality, by reason of the appellants delay in moving to set
    aside the dismissal.
Accordingly, the oppressive
    nature of family law proceedings (to use the motion judges term) is not a
    prejudice caused by the dismissal and subsequent restoration of the proceeding.

[54]

Additionally, the motion judge stated that since
    no limitation period had expired, the appellant could, if she chose, start
    another proceeding. But she failed to address the significance of that: if a
    new proceeding could be brought, upholding the dismissal order would not remedy
    either fading memories or lack of closure for the parties, the impacts the
    motion judge referred to as arising from the passage of time.

[55]

As the court noted in
Williams v. Williams
,
    2010 ONSC 2636, 82 R.F.L. (6th) 448, at para. 19, there must be compelling
    reasons not to grant the order [setting aside the dismissal] if there is no
    prejudice to the defendant (see also,
MDM Plastics Limited v.
    Vincor International Inc.
, 2015 ONCA 28, 124 O.R. (3d)
    420, at para. 24). Here, there was no prejudice to the respondent.

(iii)

The Motion Judge Failed to Consider Whether Setting Aside the Dismissal
    Was Just in All the Circumstances

[56]

The motion judge referred to passages from
Fuller
,
including the statement that all of
    the circumstances of the case must be considered in order to arrive at a just
    result. Although she expressed her conclusion including the term the
    circumstances, she did not appropriately consider the circumstances as noted
    above. Nor did she expressly advert, in reaching her conclusions, to the policy
    that actions should be decided on their merits:
Fuller
, at paras. 23-26.
    Instead, she stressed that the timelines in the
Family Law Rules
are
    in place for a reason, and that even though the only prejudice was the passage
    of time, the appellants delay could not be countenanced.

[57]

The motion judge was entitled to consider that
    the
Family Law Rules
are in place for a reason, and that there was
    unexplained delay. But she was also obligated to consider that the
Family
    Law Rules
contemplate the setting aside of dismissal orders where it is
    just to do so, and that the factors and policies implicated in such a decision
    go beyond these considerations. She failed, as described above, to take into
    account the appropriate factors contextually, and then failed to consider
    whether the preferred policy of allowing actions to be determined on their
    merits should
in this particular case
bow to
    considerations of timely administration of justice in accordance with the
Family
    Law Rules
. Furthermore, she did not explain how upholding the administrative
    dismissal given the ability to start a new proceeding was consistent with the
    goal of saving time and expense in accordance with the primary objective of the
Family Law Rules
: r. 2(3)(b).

(iv)

Re-Weighing

[58]

Due to these errors, it is necessary to re-weigh
    the factors and consider whether it is just to uphold the dismissal order. In
    my view, the just result is to set aside the dismissal order.

[59]

Although the litigation delay between late 2018
    and the dismissal order was not adequately explained, the appellant had the
    opportunity to get the application back on track in a manner contemplated by
    the
Family Law Rules
, by arranging a case conference or settlement
    conference. She lost that opportunity due to her lawyers inadvertence. It
    would not be just to visit that loss of opportunity on her. She moved promptly
    enough to set aside the dismissal order that her right to proceed with her
    claim ought not, in the circumstances, yield to what under other circumstances
    might be the respondents right to rely on the finality of the dismissal. There
    is no prejudice to the respondent and no basis to conclude that his fair trial
    rights have been compromised.
[5]
Moving this proceeding to a family law conference is more consistent with both
    the goals of deciding the case on its merits and achieving a timely and
    efficient resolution than the alternative of upholding the dismissal and
    allowing the appellant to start a new proceeding.

CONCLUSION

[60]

In her factum, the appellant undertakes that if
    her appeal is allowed, she will immediately schedule the first available date
    for a Settlement Conference  and ask the Settlement Conference judge to
    schedule the case for trial as quickly as possible. For the reasons above and
    in light of that undertaking, I would allow the appeal, set aside the order of
    the motion judge, and replace it with an order setting aside the dismissal
    order and directing that within 30 days of the release of these reasons, the
    appellant shall take the step set out in r. 41(6)(e). If she does not do so, her
    application shall be dismissed.
[6]

[61]

In accordance with the agreement between the
    parties, I would award costs of this appeal to the appellant in the sum of
    $5,000, inclusive of disbursements and applicable taxes. In light of the
    disposition of the appeal, the motion judges costs order in
favour
of the respondent will also be varied, on consent, to provide that
    the respondent pay the appellant $2,500 in costs for the motion, all-inclusive.

B. Zarnett J.A.

I agree. L.B. Roberts
    J.A.


Brown J.A. (dissenting):

[62]

I strongly disagree with the disposition of this
    appeal proposed by my colleagues. In my view, there is no basis to interfere
    with the motion judges dismissal of Ms. Mihorens motion to set aside the
    October 26, 2019 administrative dismissal order (the Dismissal Order) of her
    application for spousal support.

[63]

In
R. v. G.F.
, 2021 SCC 20, 71
    C.R. (7th) 1, the majority of the Supreme Court recalled, for the benefit of
    intermediate appellate courts, the importance of a functional and contextual
    reading of a lower courts reasons and directed appellate courts to resist the
    temptation to finely parse a judges reasons in search of error: at para. 69.
    In my respectful view, my colleagues have run afoul of that direction.

[64]

As my colleagues note, the motion judges order
    was discretionary and entitled to deference on appeal. My colleagues
    acknowledge that the motion judge accurately stated the applicable principles
    of law as set out in
H.B. Fuller Company v. Rogers (Rogers Law Office)
,
    2015 ONCA 173, 386 D.L.R. (4th) 262, and
Reid v.
    Dow Corning Corp.
(2001), 11 C.P.C. (5th) 80 (Ont.
    S.C.), revd on other grounds (2002), 48 C.P.C. (5th) 93 (Ont. Div. Ct.).
Nevertheless, they justify interfering with her order on the basis
    that the motion judge erred in applying those principles and failed to give the
    same weight to certain considerations as my colleagues would.

(1)

The motion judge recognized and applied the overarching big picture
    principles

[65]

Two of the alleged errors in principle
    identified by my colleagues are that the motion judge failed to contextually
    evaluate the
Reid
factors and failed to properly consider whether
    upholding the Dismissal Order would constitute a just result in all the
    circumstances. Since both alleged errors concern the big picture framework
    within which the motion judge was required to perform her analysis, I will
    consider them together.

[66]

I see no such errors.

[67]

To my eye, my colleagues disagreement with the
    motion judge essentially stems from their different view of the significance of
    the litigation obligation the appellant failed to meet in this case, which
    resulted in the dismissal of her application. My colleagues open their reasons
    by stating: The appellant missed a deadline, that her lawyer had neglected to
    diarize, by which certain steps had to be taken.

[68]

With respect, much more was involved than
    missing a mere deadline by which certain steps had to be taken. On this
    point, I regard the motion judges reasons as more realistically assessing the
    significance of the appellants litigation failure.

[69]

The
Family Law Rules, O. Reg. 114/99,
take a more aggressive approach to in and out of court times for cases than
    do the somewhat somnambulant
Rules of Civil Procedure
under which an
    administrative dismissal of a civil action is not triggered until the fifth
    anniversary of its commencement:
Rules of Civil Procedure
, R.R.O.
    1990, Reg. 194, r. 48.14(1). By contrast, r. 41(5) of the
Family Law
    Rules
directs the issuance of a notice of approaching dismissal if a
    family law case has not been settled, withdrawn or scheduled or adjourned for
    trial before the 365th day after the date the case was started.

[70]

The motion judge was alive to the policy of
    quicker in and out of court times chosen by the
Family Law Rules
. As
    she noted, at para. 17:

Rule 41(5) and (6) [of the
Family Law Rules
] puts an
    onus on family law litigants to move their cases forward in a timely manner.
The expectation is that the case will be resolved or scheduled
    for trial within one year.
If the litigants do not move their cases
    forward, and do not obtain a court order extending the timeline, the case will
    be administratively dismissed. [Emphasis added.]

[71]

The
Family Law Rules
aggressive in
    and out of court timeline policy informed the motion judges understanding of
    the context and the justice of the case in which to consider the appellants
    request to revive her dismissed application. As the motion judge stated, at
    para. 15:

Family law cases are, by their very nature, time sensitive.
    They frequently involve children and issues respecting child support and
    residency. They often deal with families in crisis. Family law litigation is
    invasive and outstanding family law litigation is a heavy burden on the
    litigants, both financially and emotionally. I suspect that was the reason for
    the timelines set out in the
Family Law Rules
, O. Reg. 114/99.

[72]

In this case, the appellant failed to meet the
Family
    Law Rules
fundamental expectation about the amount of time a family law
    case may tarry in the court system. She did not meet the expectation
    established by r. 41(5) that a case must be settled or scheduled for trial
    within one year of its commencement. The appellant then used r. 41(6)s
    mechanism to avoid the dismissal of her application by consenting to the
    December 6, 2018 order that granted her leave to extend the time for dismissal
    of her case to October 25, 2019 (the Consent Extension Order). Her consent to
    that order was tantamount to an undertaking to settle, withdraw or set down her
    application for trial by October 25, 2019.

[73]

The appellant did not fulfill her undertaking.
    Instead, the evidence showed that the appellant and her counsel essentially
    ignored the Consent Extension Order, without explanation. The administrative
    dismissal of her application followed.

[74]

In my view, the motion judge properly recognized
    that the appellants litigation failure was not missing a mere deadline by
    which certain steps had to be taken. Instead, the appellant failed to complete
    her application within the time stipulated by the
Family Law Rules
, as
    extended by her undertaking in the Consent Extension Order.

[75]

Accordingly, the motion judge did not fail to
    contextually evaluate the
Reid
factors. She did not lose sight of
    rendering a just result in all of the circumstances. The motion judge was
    alive to the big picture context in which to apply the analytical elements
    identified in
Fuller
and
Reid
to a family law proceeding that
    has been dismissed for delay.

[76]

My colleagues reasons essentially downplay the
    significance of the obligation that rr. 41(5) and (6) impose on family law
    litigants. In and out of court timelines, their reasons suggest, are quite
    secondary to deciding a case on the merits. In support, they point to comments
    that originated in this courts decision in
Hamilton (City) v. Svedas
    Koyanagi Architects Inc.
, 2010 ONCA 887, 104 O.R. (3d) 689, where, at
    para. 20, this court quoted with approval the lower courts comment that [a]
    courts bias is in favour of deciding matters on their merits rather than
    terminating rights on procedural grounds.

[77]

Much water has flowed under the
    access-to-justice-bridge since 2010. Chronic delays and disproportionate legal
    costs are now seen as barriers to a just civil and family court system in
    Ontario. The decisions in
Hryniak v. Mauldin
, 2014 SCC 7,
    [2014] 1 S.C.R. 87 and
R. v. Jordan
, 2016 SCC 27, [2016] 1 S.C.R.
    631 have forced Ontario courts to rethink their traditional
laissez-faire
attitude toward the time
    it takes to move cases from their start to a final disposition on the merits.

[78]

In
Jordan
, the Supreme Court decried
    the culture of complacency towards delay that had emerged in the criminal
    justice system: at para. 40. An equally virulent culture of complacency towards
    delay is deeply embedded in Ontarios civil and family justice systems. The
    presumptive in and out of court in one year baseline for family law cases
    created by r. 41(5) of the
Family Law Rules
, coupled with the limited
    exceptions to that baseline enumerated in r. 41(6), represents an effort to
    root out that culture of complacency in the family law system. That presumptive
    one-year in and out of court timeline provides the overarching context in
    which any motion judge must consider an applicants request to revive an
    administratively dismissed family law proceeding and determine what order would
    be just in all the circumstances.

[79]

The motion judges reasons disclose that she
    identified and applied that overarching big picture context when considering
    the appellants motion to revive her dismissed application. The starting point
    of her analysis was faithful to the legislative scheme for family law
    proceedings. She did not make the errors in principle attributed to her by my
    colleagues.

(2)

The motion judge was entitled to emphasize the appellants unexplained
    delay

[80]

My colleagues contend that the motion judge
    failed to properly consider the appellants explanation for her failure to
    fulfill the Consent Extension Order. Instead, [i]n effect, she ignored the
    significance of the fact that the deadline was missed due to lawyer
    inadvertence and treated the prior delay as the only relevant factor: at para.
    46.

[81]

While my colleagues focus their analysis on the
    consequences (if any) of the failure of the appellants lawyer to diarize the
    completion date set by the Consent Extension Order, the motion judges reasons
    disclose that she undertook a much broader review of the record. That broader
    review led her to conclude that the appellant had not provided an acceptable
    explanation for her delay. Specifically, the motion judge took into account
    that:


i.

The appellant failed to comply with her undertakings in anything
    resembling a timely manner. The appellant was provided with a list of her
    undertakings on November 2, 2018, yet [s]he took no steps to comply with those
    undertakings until July or August of 2020. The motion judge noted that the
    undertakings were straightforward and should have been answered relatively
    easily within 60 days of the completed examinations, but [t]hey were not, and
    there is no explanation for the delay;


ii.

The appellant never brought the motion for better income disclosure that
    her counsel advised the respondent in November 2018 they intended to bring;

iii.

After her counsels letter of November 2018, the appellant took no
    steps to advance the litigation until after the administrative dismissal
    order dated October 26, 2019. The applicant had already been granted an
    extension, yet did nothing in the ten months following;

iv.

The appellants evidence that she met with her counsel in February 2019
    to discuss the case left the motion judge with more questions than answers as
    it did not explain why certain litigation tasks the appellant referred to were
    never completed; and


v.

Respondents counsel wrote to appellants counsel on July 6, 2019
    repeating his request for answers to undertakings, but his letter was ignored
    by the appellant and her counsel. As the motion judge stated: There is no
    explanation for the failure to respond to [respondents counsels]
    correspondence of July 6, 2019.

[82]

Those numerous failures led the motion judge to
    conclude that the appellant has not provided an adequate explanation of the
    litigation delay that led to the dismissal order.

[83]

Only then did the motion judge assess the effect
    of the failure by the appellants lawyers assistant to diarize the ultimate
    dismissal date of October 25, 2019 set by the Consent Extension Order. While
    she accepted the assistants explanation of inadvertence, the motion judge
    quite properly pointed out that there was more to consider because [t]he
    assistant does not provide an explanation as to why
no
    real steps were taken in the almost 12 months
prior to the dismissal
    date (emphasis added).

[84]

Accordingly, the motion judges reasons disclose
    that the appellants failure involved more than a legal assistant neglecting to
    diarize one date, the conduct upon which my colleagues focus their attention.
    There was a much larger history of litigation delay by the appellant herself,
    as well as by her counsel and, most significantly, an absence of explanation
    from either for that larger delay.

[85]

That larger delay led the motion judge to make a
    telling finding of fact: I conclude that the applicant simply did not
    move forward with her claim after the first order was made extending the
    timelines. She displayed  inertia, at best, or a complete lack of interest, at
    worst. My colleagues do not take issue with that finding. Indeed, they cannot;
    it is firmly anchored in the evidence. This finding of fact played a large role
    in the motion judges overall analysis. The reason why it did can be found at para.
    33 of her reasons:

Under the
Family Law Rules
, once a case has already
    been extended by court order to a specific date, a new notice of approaching
    dismissal is not provided to the parties. In other words, they get one notice 
    the first time their case is on the brink of being dismissed.
If an order is made extending the timelines, they do not get a
    second notice. The parties, or their counsel, are required to ensure that they
    deal with the case prior to its dismissal on the date set out in the order
.
    [Emphasis added.]

[86]

By giving that finding of fact significant
    weight in her analysis, the motion judge did not fall into reversible error. On
    the contrary, she was entitled to place more weight on that finding because, in
    so doing, she advanced the policy goals of the
Family Law Rules
and
    their aggressive approach to the in and out of court times for family law
    cases.

(3)

The motion judge did not err in her treatment of prejudice

[87]

Finally, my colleagues conclude that the motion
    judge gave erroneous treatment to the factor of prejudice.

[88]

Although the motion judge acknowledged there was
    no indication that evidence had been lost during the period of the appellants
    unexplained delay, she did presume that the passage of time would somewhat
    dim the recollection of witnesses. That strikes me as a common-sense
    presumption. My colleagues think otherwise, in large part because they measure
    the relevant delay to be only four months: from the time of the Dismissal Order
    to the time the appellant filed her motion to set aside. With respect, I think
    the more appropriate calculation of delay is over two years  from the start of
    the application to the date the motion was filed.

[89]

As well, my colleagues do not think that the
    respondents evidence about the impact of the litigation on him, which was
    accepted by the motion judge, should play any role in the analysis because the
    respondent gave no evidence that he was unable to move on with his life: at
    para. 52.

[90]

I regard those differences between the motion
    judge and my colleagues as mere quibbles that do not rise to the level of
    reversible error.

[91]

From her reasons, it is apparent the motion
    judge thought that the appellants lengthy delay and display of inertia, at
    best, or a complete lack of interest, at worst outweighed other factors. It
    was open to the motion judge to weigh the factors in that way; it was her
    discretionary call to make. That my colleagues might have exercised their
    discretion to call a strike a ball is not a basis for appellate reversal.

[92]

As well, I take issue with my colleagues
    suggestion that usually the mere passage of time cannot constitute prejudice
    that weighs against reviving a dismissed proceeding. On the contrary, it can.
    Indeed, if we make any pretence to a family and civil court system that offers
    the Ontario public timely justice, it must.

[93]

The issue of whether the passage of time
per
    se
constitutes prejudice recently arose in the context of motions to
    strike out civil jury notices. As I observed in a Chambers decision in
Louis
    v. Poitras
, 2020 ONCA 815, 8 C.C.L.I. (6th) 163, at para. 33:

Delay in obtaining a date for a civil jury trial can, by
    itself, constitute prejudice and justify striking out a jury notice. This
    should not be a surprising proposition. Part of the service guarantee to the
    public made in r. 1.04(1) is that courts will work to provide the most
    expeditious  determination of
every
civil
    proceeding on its merits (emphasis added). Delay in providing trial dates
    undermines that service guarantee. The late Willard Z. Estey, a former justice
    of the Supreme Court of Canada, captured the point well when he stated that
    delay in the settlement or disposal of conflicting claims is  a primary enemy
    of justice and peace in the community.

[94]

The recognition of delay
per se
as
    causing prejudice was accepted in the subsequent panel decision in
Louis v.
    Poitras
, 2021 ONCA 49, 456 D.L.R. (4th) 164, where Hourigan J.A. wrote, at
    para. 22:

[T]he motion judge found that the real and substantial
    prejudice arises simply by reason of delay: at para. 46. I agree with the
    statement of Brown J.A. in his decision on the stay motion that this was a
    legally permissible finding and that delay in obtaining a date for a
    civil jury trial can, by itself, constitute prejudice and justify striking out
    a jury notice. As Brown J.A. notes, the whole
raison dêtre
of the
    civil justice system, as captured in r. 1.04(1), is that courts will work to
    provide the most expeditiousdetermination of every civil proceeding on its
    merits:
Louis v. Poitras
, 2020 ONCA 815, at para. 33.

[95]

The prejudice caused by the mere passage of time
    is more pronounced where the issue arises in the context of a litigants
    failure to meet her
Rules
-imposed obligation to move her case in and
    out of court within a stipulated period of time. Under the
Family Law
    Rules
, saving expense and time is a component of the primary objective
    of dealing with a case justly: r. 2(3). The ability of the
Rules
-imposed
    in and out of court time obligations to promote that objective turns on the
    willingness of courts to enforce them. If courts do not treat the passage of
    time as a legitimate factor to take into account when deciding whether to
    revive an action dismissed for the failure to comply with in and out of court
    timelines, then one might as well tear up rr. 41(5) and (6). To remove the
    passage of time from the table of legitimate considerations would have the
    effect of eviscerating the
Rules
-imposed timeline obligations, feed
    the culture of complacency towards delay decried by
Jordan
, and
    reward negligent lawyers by freeing them from the risk of a claim on their
    professional liability insurance.

[96]

The motion judges consideration of the passage
    of time as prejudice was not a reversible error; it was a proper step in trying
    to defeat the culture of complacency towards delay in the family law system.

CONCLUSION

[97]

The motion judge gave reasons that correctly
    identified the applicable principles of law and explained why she weighed the
    different factors in the way that she did. Her reasons disclose she never lost
    sight of the big picture principles that provide the necessary framework for
    her analysis. Removed as we are at Osgoode Hall from the reality of managing
    the volume of cases in the family law trenches, we might be tempted to weigh
    some factors differently. But that is not our job. The task of weighing factors
    falls to the motion judge. In this case, she performed that task well, within
    the governing legal framework.

[98]

Her decision merits the support of this court,
    not its reversal.

[99]

I would dismiss the
appeal.

Released: December 16, 2021 D.B.

David Brown J.A.





[1]

Not Mr. Zalev or Ms. Warren.



[2]

Reid v. Dow Corning Corp.
(2001)
, 11 C.P.C. (5th) 80 (Ont. S.C.), revd on other grounds (2002), 48 C.P.C.
    (5th) 93 (Ont. Div. Ct.).



[3]

Limitations Act, 2002
, S.O. 2002, c. 24, Sched. B, s. 16(1)(c): There
    is no limitation period in respect of  a proceeding to obtain support under
    the
Family Law Act
or to enforce a provision for support or maintenance
    contained in a contract or agreement that could be filed under section 35 of
    that Act.



[4]

The respondent argued in this court that he did not concede
    that the motion was prompt, just that in the circumstances, any delay in
    bringing it was not a consideration. In my view, that distinction is not
    significant.



[5]
The appellant argued that there would be prejudice to her if the dismissal
    order was upheld which the motion judge overlooked, because the motion judge
    assumed the appellant could start another proceeding. The appellant suggested
    that a new proceeding could be met with an argument that a change in
    circumstances was required, or that it was an abuse of process. The respondent
    eschewed any reliance on a change in circumstances requirement for a new
    proceeding. At the same time, he reserved the right to argue that a new
    proceeding would be an abuse of process. Here, however, the motion judge
    expressly premised her decision on the recognition that without the passage of
    a limitation period, the [appellant], should she choose to, can issue a new
    claim. This given, I have difficulty seeing how the respondent could take
    advantage of the dismissal order, but then proceed to argue that a new
    proceeding is barred by the dismissal.



[6]
In my view, were the application to be dismissed on this basis, a new
    proceeding seeking the same relief would properly be viewed as an abuse of
    process.


