



COURT OF APPEAL FOR ONTARIO

CITATION: Jadid v. Toronto Transit Commission, 2016 ONCA 936

DATE: 20161214

DOCKET: C61901

Feldman, Epstein and Miller JJ.A.

BETWEEN

Maimuna Jadid

Plaintiff (Appellant)

and

Toronto Transit Commission and John Doe Driver

Defendants (Respondents)

B. Robin Moodie as agent for Jillian Van Allen, for the
    appellant

Madeline Ferreira, for the respondents

Heard: September 30, 2016

On appeal from the order of Justice Sean F. Dunphy of the
    Superior Court of Justice, dated February 17, 2016, with reasons reported at
    2016 ONSC 1176.

Miller J.A.:

[1]

The appellant was injured as she fell while attempting to board a Toronto
    Transit Commission bus in March 2006. After settling a statutory accident benefits
    claim in 2007, the appellant commenced an action against the respondents. The
    action was beset with missteps: it was dismissed administratively for delay,
    and after obtaining an order setting aside the dismissal on terms, the
    appellant failed to take the procedural steps required by that order. The
    appellants subsequent motion to vary those terms, years later, was dismissed
    and the action stayed. The appellant now appeals from that order. For the
    reasons that follow, I would dismiss the appeal.

A.

Background

[2]

The appellants action was dismissed for delay by registrars order on
    August 9, 2011. On February 17, 2012, OMarra J. set aside the dismissal order
    on terms (the OMarra order). Among the terms was the requirement that the
    appellant set the action down for trial within 60 days. This required the
    appellant to complete examinations for discovery and file a trial record within
    60 days. The appellant did neither. Neither did the appellant have the OMarra
    order issued and entered.

[3]

The appellant took no further steps for two years.

[4]

Eventually, in May 2014, counsel for the appellant wrote to request the
    respondents affidavit of documents. The respondent replied that it had been provided
    two years earlier, which it had, and suggested that counsel review his file. By
    this time, the respondent had assigned new in-house counsel who was not yet aware
    of the procedural history of the action, and did not know that the OMarra
    order had not been taken out.

[5]

Thereafter, the appellant sought to schedule an examination for
    discovery of the representative of the respondent. The respondent initially
    objected on the basis that it had not completed its examination of the
    appellant, which took place June 20, 2014. It relented on threat of bringing a motion,
    and agreed to an examination on September 30, 2015. In the meantime, the
    respondent sought confirmation that the OMarra order had been entered, and in
    February 2015 requested a copy of the entered order. It repeated the demand at
    the examination on September 30, 2015, and when the appellant could not produce
    it, the respondent refused to proceed.

[6]

With counsel for the appellant now alive to the problem of the un-entered
    OMarra order, he retained counsel, who had the order issued and entered. It
    was then necessary to have the timetable established by that order varied,
    given that the 60 day period for setting the matter down for trial had long
    since passed. Accordingly, the appellant brought the motion to vary. It was
    unopposed.

[7]

The motion judge concluded, at para. 91, that the delay in the case was
    extreme, that there were no non-perfunctory explanations offered, and that the
    plaintiff never had a bona fide intention to adhere to the deadline ordered and
    only intermittent interest in advancing  this case. He dismissed the motion
    and imposed a stay of the action.

B.

Issues

[8]

The appellant appeals on the basis that the motion judge erred in
    refusing to vary the OMarra order setting aside the registrars dismissal, and
    in staying the action. More specifically, the motion judge is said to have
    erred by:

1. Misapprehending
    the governing legal principles;

2. Finding
    that the respondent suffered actual prejudice as a result of the delay; and

3. Finding
    that the litigation and motion delay were not explained.

C.

Analysis

(1)

The legal principles

[9]

The motion judges analysis began with the well-established criteria
    from
Reid v. Dow Corning Corp.
[2001] O.J. No. 2365, 11 C.P.C. (5th)
    80 (Ont. Master), at para. 41, revd. on other grounds [2002] O.J. No. 3414, 48
    C.P.C. (5th) 93 (Ont. Div. Ct) governing appeals from a registrars dismissal
    for delay. The four factors that
Reid
identifies as relevant to the
    exercise of discretion are: (1) the explanation of the litigation delay, (2)
    the inadvertence in missing the deadline; (3) the efforts to move promptly to
    set aside the dismissal, and (4) the absence of prejudice to the defendant.

[10]

The
    matter before the motion judge is a step removed from an appeal of a
    registrars dismissal. The dismissal of the action had previously been set
    aside by the OMarra order, on terms. Those terms had not been satisfied, so
    the appellant moved to vary the terms which could no longer be met on the
    original schedule. The motion judge reasoned that this additional factor, a
    moving party who has been to the well for relief once and returns a second
    time (at para. 53), necessitated the following additional considerations: (1)
    the length of both the pre- and post-order delay; (2) that no priority should
    be given to any of the
Reid
factors over any others; (3) that
    prejudice to the defendant may be inferred from the passage of time; and (4)
    the application of a heightened scrutiny of the four
Reid
factors and
    the requirement of an explanation for why the first lifeline was ignored.

[11]

The
    appellant argued that the motion judge misapprehended the
Reid
test
    (and subsequent case law applying it) by rejecting the proposition that
    prejudice takes priority over the other factors.

[12]

I
    disagree. It is well established that, as stated by the motion judge, none of
    the
Reid
factors have automatic priority over any others. The
Reid
test provides a structured approach to reconciling the principle that civil
    actions should be decided on their merits, with the principle that the public
    interest is served by enforcing procedural rules that promote the timely and
    efficient resolution of disputes
(1196158 Ontario Inc. v. 62474013 Canada
    Ltd
., 2012 ONCA  544, 112 O.R. (3d) 67, at para. 18). It guides the
    exercise of judicial discretion and thereby reduces the risk of overlooking
    relevant considerations. It does not set out a formula, prioritize any
    enumerated factors over any others, or categorically exclude the consideration
    of other factors not listed:
H.B. Fuller Co. v. Rogers
, 2015 ONCA 173,
    386 D.L.R. (4th) 262, at para. 23;
Marche dAlimentation Denis Theriault
    Ltée v. Giant Tiger Stores Ltd.
, 2007 ONCA 695, 87 O.R. (3d) 660, at para
    20.

(2)

Prejudice

[13]

The
    appellants main argument is that the respondent has not suffered prejudice
    from the delay and the motion judge erred in finding prejudice and in not
    according decisive weight to this fact.

[14]

The
    motion judge accepted that there was no evidence of actual prejudice caused to
    the respondent by the delay, and accepted the appellants submission that if
    the respondent had any evidence of actual prejudice, it would have attended the
    hearing and presented it.

[15]

The
    appellant further submits that the respondent at no time relied on the security
    of its position. It was only on assigning new in-house counsel, which
    necessitated a review of the file, that the respondent even became aware of the
    actions irregularities. Even at this point, the respondent was prepared to go
    ahead with discoveries, notwithstanding that the timetable in the OMarra order
    had not been complied with and the action had not been restored. It did not
    take a hard line, refusing to proceed at the examination for discovery, until
    it was confirmed that the OMarra order had not been entered.

[16]

Nevertheless,
    as the motion judge noted, there is no requirement that the respondent adduce
    evidence of actual prejudice. Prejudice can be inferred from the mere passage
    of time:
1196158 Ontario Inc.
,
supra
, at para. 32. The motion
    judge found that, in the particular circumstances of this case, the ability of
    the respondent to defend the claim was in fact compromised:

[85]    The occurrence report filed by the driver the day after
    the incident is the only evidence the defendant has and will likely ever have
    to counter whatever the plaintiffs version of events when she alleges
    negligence of the defendant. That report is terse  it is highly doubtful that
    it will be able reliably to be supplemented with revived actual memory this
    many years after the fact. The ability of this or any defendant similarly
    situate to defend a claim this old and of this nature on the issue of liability
    has certainly been compromised. Once sharp and persuasive evidence may
    lose a considerable amount of its punch when reduced to an antiseptic reading
    of an occurrence report ten or more years after the fact without the ability to
    contribute any meaningful additional details. Such prejudice is progressive and
    almost impossible to quantify. I conclude from the totality of the evidence
    before me that the defendants right to a fair hearing has been impaired by the
    passage of time through the inaction of the plaintiff.

[17]

The
    motion judge thus concluded that there was non-compensable prejudice to the
    defendant. In my view, he made no error in coming to this conclusion.

(3)

Delay

[18]

There
    are three relevant periods of delay: (1) the primary delay resulting in the
    registrars dismissal, (2) the secondary delay in failing to take the
    procedural steps set out in the OMarra order within the 60 day period, and (3)
    the almost four year delay in moving to amend the OMarra order for a new
    schedule for a second attempt to satisfy the conditions for reinstating the
    action.

[19]

The
    appellant submits that any delay was neither intentional nor deliberate and has
    been explained. As such, the appellant submits, the motion judge erred in
    finding that the delay in this case favoured dismissing the motion.

[20]

I
    disagree. That the delay was not intentional does not absolve the appellant of
    the responsibility to move the action forward:
Wallace, supra
, at
    para. 18. Neither did the motion judge err in concluding that the appellant
    failed to provide a reasonable explanation for missing the deadline set in the
    OMarra order. The appellants explanation was that she failed to complete
    discoveries and set the matter down for trial within the 60 days because of the
    inadvertence in not having the OMarra order issued and entered.

[21]

But
    as the motion judge found, this is no explanation at all. There is no causal
    relationship between not having an order entered and failing to abide by the
    deadlines set out in that order. The motion judge was entitled to conclude from
    the appellants two year hiatus in taking any steps towards fulfilling the
    terms of the OMarra order, that she had no serious intention to pursue the
    action.

[22]

It
    was for the motion judge to balance the competing principles and weigh the
    almost four year delay in moving to vary the order in the context of the entire
    delay and all of the other circumstances that he canvassed. He made no error in
    his treatment of the appellants failures to explain both the delay in missing
    the 60 day timeline set out in the OMarra order and the delay in bringing the
    motion to vary the OMarra order. The motion judge did not accept as
    exculpatory the appellants argument that the reason she failed to meet the
    deadline in the OMarra order was because the OMarra order had not been taken
    out.

[23]

The
    conduct of the defendant in litigation may be a relevant consideration, however,
    in this case very little turns on this factor.  Although the respondent did
    little to move things along, this was the appellants responsibility:
Wallace
    v. Crates Marine Sales Ltd.
, 2014 ONCA 671, 245 A.C.W.S. (3d) 72, at
    para. 18.

[24]

The
    motion judges findings were open to him, and he made no error in reasoning to
    the conclusion that he did. I would therefore dismiss the appeal.

(4)

Criticism of counsel

[25]

It
    is necessary to address the motion judges criticisms of counsel for the
    appellant, both motion counsel and counsel who had carriage of the file
    (neither of whom were counsel on the appeal). Some of these criticisms were
    excessive and others unfounded.

[26]

First,
    the motion judges reasons are seasoned with rhetorical flourishes that cross
    the line from harmless ornamentation to ridicule. In my view, these are unfair
    and their absence would have done nothing to blunt the force of the motion
    judges legitimate criticisms.

[27]

Second,
    the motion judge levelled two specific accusations at counsel that need to be
    corrected.

[28]

The
    first of these is the motion judges characterization of the appellants trial
    counsels non-compliance with the OMarra order as tantamount to contempt of
    court (para. 7). The motion judge aptly chastised counsel for disregarding the
    OMarra order and treating it as an inconvenience. It is significant, however,
    that the OMarra order did not compel the appellant to do anything. It is a
    power-conferring order rather than a mandatory order. It sets out conditions
    that need to be fulfilled in order to restore an action that has been
    administratively dismissed. No one is or was under any obligation to have the
    action restored, or to take any steps to that end. So in not taking the
    lifeline offered by the OMarra order, counsel was not acting contemptuously,
    but presumptuously, in expecting that his failure to follow the OMarra orders
    prescriptions would be excused. The fruit of that presumption was the dismissal
    of the motion and the stay of the action.

[29]

The
    second matter relates to an exchange between the motion judge and motion
    counsel. Motion counsel, seeking to impress upon the motion judge the absence
    of prejudice to the respondent, sought to hand up unsworn email correspondence
    between counsel for the parties. The supposed import of the correspondence,
    which was put before this court on a fresh evidence motion, was that the respondents
    non-opposition to the motion was a
de facto
consent. The motion judge
    rejected this evidence on the basis that it was inadmissible and non-probative.

[30]

At
    the conclusion of argument, motion counsel for the appellant sought and was
    granted permission to file additional legal argument. This he did later that
    day. However, he also added the unsworn email correspondence that the motion
    judge had refused to receive. In my view, this step was misguided. Counsel had
    not sought permission to file additional material, particularly unsworn
    evidence that the motion judge had refused to receive. The motion judges
    reaction was severe: (s)uch a deception  for no other description can be
    applied  is unworthy of a barrister and member of the Law Society of Upper Canada
    and displayed disrespect to this court (at para. 15).  The motion judge
    concluded that the motion counsel had only sought leave to file supplementary
    written argument so as to surreptitiously file the rejected emails.

[31]

Again,
    however, I take issue with the motion judges characterization of counsels
    conduct. The motion judge was entitled to refuse to accept the emails. But it is
    out of all proportion to label this conduct deceit and to impugn the motion
    counsels professional integrity in doing so.

D.

Disposition

[32]

I
    would allow the motion for leave to file fresh evidence. I would dismiss the
    appeal with costs to the respondent in the amount of $7,500 inclusive of
    disbursements and HST.

Released: KF DEC 14 2016

B.W. Miller J.A.

I agree. K. Feldman J.A.

I agree. Gloria
    Epstein J.A.


