





CITATION:
Machacek
v. Ontario Cycling
          Association, 2011 ONCA 410



DATE: 20110527



DOCKET: C53180



COURT OF APPEAL FOR ONTARIO



MacPherson, Armstrong and Karakatsanis JJ.A.



BETWEEN



Paul Machacek and Susan Machacek



Appellants (Plaintiffs)



and



Ontario Cycling
          Association, Canadian Cycling Association, DOrnellas
          Racing Team a.k.a. DOrnellas Bike Shop Racing



Respondents (Defendants)



William  G. Scott and
          Brian A. Pickard, for the appellants



Aaron Postelnik, for the respondents



Heard: May 17, 2011



On appeal from the Order of Justice
          Leonard Ricchetti of the Superior Court of Justice dated December 21, 2010.



ENDORSEMENT



[1]

The appellants appeal the order of Ricchetti J.
    of the Superior Court of Justice dated December 21, 2010, which dismissed the
    appellants motion to set aside the registrars dismissal of their action for
    negligence arising from a bicycle accident.  The appellant, Paul Machacek, was seriously injured in the accident.  The accident occurred on June 15, 2002.  The Statement of Claim was issued on February
    20, 2003.

[2]

The action was dismissed for delay in setting
    the action down for trial by the local registrar on August 15, 2007 pursuant to
    rule 48.14 of the
Rules of Civil
    Procedure
.  Between the time of the
    commencement of the action and September 2006, pleadings were exchanged, some
    discovery sessions were held, a defence medical was completed and various
    documents were produced.

[3]

The lawyer for the appellants left his law firm prior
    to the issuance of the status notice and the registrars order under rule
    48.14.  The lawyer did not receive a copy
    of the status notice.  While he had filed
    a change of address with the post office, he had not bothered to serve a notice
    of change of solicitors under the rules.

[4]

The order dismissing the action came to the
    attention of the appellants lawyer sometime in early 2008.  On April 2, 2008, the appellants lawyer
    wrote to the lawyer for the respondents and asked for his consent to set aside
    the dismissal order.  The consent was
    refused.  The appellants lawyer did some
    work on a motion to set aside the dismissal in the summer of 2008.  Some efforts were made between
counsel
to agree on a date for the motion but nothing
    happened.

[5]

Between February 2008 and October 2008, the
    appellant, Paul Machacek, met with his lawyer six times and urged him to deal
    with the dismissal of the action.  He
    also had to resort to communicating with his lawyer by registered mail due to
    the failure of the lawyer to respond to his inquiries between meetings.  The appellant consulted with other lawyers
    who told him to stay with his current lawyer.

[6]

Eventually, in June 2009, the matter was
    reported to LawPRO, the Law Societys insurers.  On July 14, 2009, counsel for LawPRO (not Mr. Scott) wrote to counsel
    for the respondents requesting motion dates.  However, it was not until March of 2010 that counsel for LawPRO served
    the motion record to set aside the registrars order.  The motion was heard on December 8, 2010 and
    reasons were released on December 21, 2010.

[7]

Between September 2006 and April 2008, when the
    appellants lawyer says he was advised of the registrars dismissal order,
    nothing of any significance happened in the litigation, apart from the
    dismissal order.  Between April 2008 and
    the time that the matter was reported to LawPRO in June 2009, the lawyer for
    the appellants did almost nothing to get the appropriate motion before the
    court.  When counsel for LawPRO became
    involved, virtually nothing was done for another 10 months.

[8]

In our view, the delay in this case between
    September 2006 and March 2010 is inexcusable.

[9]

Virtually all of the delay between September
    2006 and March 2010 is attributable to the failure of counsel for the
    appellants to move the action along and take the appropriate steps to set aside
    the registrars order.  The observation
    made by Sharpe J.A. in
March
é
DAlimentation Denis Th
é
riault Lt
é
e
    v. Giant Tiger Stores Limited
, 2007 ONCA 695 at para. 31 applies to the
    case at bar:

the nature of the delay and the solicitors conduct
    in this case amount to more than that kind of lapse or inadvertent mistake that
    the legal system can countenance.  We
    should opt for a resolution that discourages this type of conduct which
    undermines the important value of having disputes resolved in a timely
    fashion.  The decision of the Master
    sends the right message and provides appropriate incentives to those involved
    in the civil justice system.

Sharpe J.A.s comments at para.
32 are
    also apt:

Moreover, excusing a delay of this
    magnitude and gravity risks undermining public confidence in the administration
    of justice.
Lawyers who fail to
    serve their clients threaten public confidence in the administration of
    justice.  The legal profession itself has
    recognized this danger: Commentary to rule 2.01 of the Law Society of Upper
    Canadas
Rules of Professional Conduct
states, A lawyer who is incompetent does the client a disservice, brings
    discredit to the profession, and
may
    bring the administration of justice into disrepute
.  [Emphasis added.]  There is a risk that the public would
    perceive disregarding the solicitors conduct in the circumstances of this case
    as the legal system protecting its own.  Excusing a delay of this kind would throw into question the willingness
    of the courts to live up to the stated goal of timely justice.

[10]

Counsel for the appellants, in his able
    argument, emphasized that the more significant consideration in the case at bar
    is that there is no evidence of actual prejudice as found by the motion
    judge.  While this is an important
    factor, it has to be balanced by a consideration of the finality principle.  In our view, the delay in this case and the
    conduct of counsel tips the balance towards the latter.  As Sharpe J.A. found in
Giant Tiger
reinstating the action at this point would undermine
    the finality principle while refusing to reinstate the action does not
    interfere with the need to ensure adequate remedies.  In respect to the latter comment, we note
    that the appellants are not left without a remedy as they still have recourse
    through an action in solicitors negligence.

[11]

In the result, the appeal is dismissed.  As agreed, the respondents shall have their
    costs fixed in the amount of $7,500 inclusive of disbursements and applicable
    taxes.

J.C.
    MacPherson J.A.

Robert
    P. Armstrong J.A.

Karakatsanis
    J.A.


