



COURT OF APPEAL FOR ONTARIO

CITATION: Temelini v. Canada Permanent Trust Company, 2017
    ONCA 410

DATE: 20170519

DOCKET: C62836

Lauwers, Hourigan and Benotto JJ.A.

BETWEEN

Paul Temelini

Plaintiff (Appellant)

and

Canada
    Permanent Trust Company, Canada Trust Company
and

Robert Thorn

Defendants (
Respondents
)

Howard Walch, for the appellant

Gillian B. Dingle and Aria Laskin, for the respondents

Tim Gleason and Rebecca Glass, for the interveners,
    Claudio Martini and Shulgan Martini, Marusic LLP

Heard: May 16, 2017

On appeal from the order of Justice Kevin B. Phillips of
    the Superior Court of Justice, dated November 29, 2016.

REASONS FOR DECISION

[1]

This is an appeal from the order of the motion judge dismissing this
    action for delay.

[2]

In 1984, the appellant, Paul Temelini, commenced an action against the
    RCMP and other defendants for, among other things, malicious prosecution
    resulting from fraud charges, for which he was ultimately acquitted (the RCMP
    Action).

[3]

In the RCMP Action, documentation was produced by the RCMP that led Mr.
    Temelini to believe that he had a cause of action against the respondents.
    Specifically, Mr. Temelini alleges that the respondent, Robert Thorn, an
    employee of the respondent Canada Permanent Trust Company, provided
    confidential financial information about him and his businesses to the RCMP
    during the course of the RCMPs criminal investigation. Mr. Temelini commenced this
    action against Canada Permanent Trust Company, a successor company, and Mr.
    Thorn (the Canada Permanent Action) in 2004, seeking damages for the alleged
    wrongful disclosure.

[4]

By 2016, the Canada Permanent Action had not progressed beyond the
    pleading stage. Mr. Temelini had not delivered an affidavit of documents, no
    discoveries had taken place, and no production had been made. The respondents
    brought a motion to dismiss for delay.

[5]

In granting the respondents motion, the motion judge found that the lengthy
    delay in this case was inexcusable and was attributable to Mr. Temelinis
    decision to prioritize the RCMP Action over the Canada Permanent Action. He
    concluded that while the actions were subject to a common timetable and joint
    case management, the appellant consigned the Canada Permanent Action to
    dormancy while the RCMP Action proceeded to trial. The motion judge also
    found that the death of the key witness for the RCMP constituted prejudice to
    the respondents and that a fair trial was no longer possible.

[6]

On appeal, Mr. Temelini submits that the motion judge erred in not
    considering all of the relevant circumstances in determining whether there was
    a reasonable explanation for the delay. Specifically, he asserts that the
    motion judge erred in failing to take into account the status of the RCMP
    Action and the deliberate deceit perpetrated by his second counsel regarding
    the status of the Canada Permanent Action. Mr. Temelini also submits that the
    motion judge erred when he found that he had prioritized the RCMP Action.

[7]

The interveners, Claudio Martini and Shulgan, Martini, Marusic LLP, were
    Mr. Temelinis lawyers in both the RCMP Action and the Canada Permanent Action
    between 2011 and 2015.  They deny that Mr. Martini ever mislead Mr. Temelini
    regarding the status of the Canada Permanent Action. The interveners support
    Mr. Temelinis position on this appeal that the motion judge erred in
    dismissing the Canada Permanent Action.

[8]

We are not persuaded that there is any basis for appellate interference
    with the motion judges order.

[9]

The motion judge carefully reviewed the circumstances surrounding the
    failure of Mr. Temelini to advance the Canada Permanent Action. He specifically
    considered the impact of an order made in 2008 by Master Beaudoin that the two
    actions be case managed together and subject to a common timetable. He
    highlighted Mr. Temelinis failure to comply with his court-ordered production
    obligations, stating:

How two actions could adhere to a common timetable when a
    unilateral decision is made to disclose documents with respect to one but not
    the other is beyond me. I find that the explanation proffered is insufficient
    to justify the delay caused. The delay was caused by a decision to prioritize
    one action over the other. In my view, that decision is incompatible with the
    clear intention of the order of Beaudoin J., back in 2008. As such, it is
    inexcusable.

[10]

The
    motion judges conclusion was amply supported by the evidence. The
    incontrovertible fact is that, while the RCMP Action proceeded to trial, the
    Canada Permanent Action never advanced beyond the pleading stage after 12 years.
    We accept that the RCMP Action was complex and time-consuming, but that does
    not excuse Mr. Temelinis failure to take any steps to advance the Canada
    Permanent Action.

[11]

In
    finding that the delay was inexcusable, the motion judge also considered and
    rejected Mr. Temelinis argument that the delay was attributable to the conduct
    of his second counsel in the Canada Permanent Action, Mr. Martini. The motion judge
    recognized the disputed evidence regarding Mr. Martinis role in the delay, but
    he reiterated his conclusion that the appellant made a decision to prioritize
    the RCMP action over that as against Canada Permanent and found that the time
    scope of [Mr. Temelinis] non-disclosure to Canada Permanent is so broad that
    it cannot be explained away by the narrow involvement of Mr. Martini. The
    motion judge held that any production failures that took place during Mr.
    Temelinis retainer of Mr. Martini were typical of Mr. Temelinis approach to
    the Canada Permanent Action throughout its duration, not just the discrete
    part handled by Mr. Martini.

[12]

We
    see no error in that analysis. The motion judge was aware of the allegation
    that Mr. Martini deliberately mislead Mr. Temelini by telling him that
    production had been made in the Canada Permanent Action. However, he was
    entitled to discount that evidence given that production had not been made
    prior to Mr. Martinis retainer or after his withdrawal from the case.

[13]

For
    these reasons, the appeal is dismissed. The respondents are entitled to their
    costs of the appeal in the agreed upon all-inclusive sum of $9,000, payable by
    Mr. Temelini. There shall be no costs payable by the interveners.

P. Lauwers J.A.

C.W. Hourigan J.A.

M.L. Benotto J.A.


