




CITATION:
Graham v. Vandersloot, 2012
          ONCA 60



DATE: 20120131



DOCKET: C52830



COURT OF APPEAL FOR ONTARIO



Cronk and Blair JJ.A. and Strathy J. (
ad hoc
)



BETWEEN:



Kelly Graham



Plaintiff/Appellant



and



Patricia Vandersloot and Pilot Insurance Company



Defendants/Respondents



William G. Scott, for the
          appellant



Grant E. Black, for the
          respondents



Heard: January 25, 2012



On appeal from the orders of
          Milanetti J., dated September 7, 2010 and Ramsay J., dated September 13,
          2010.



R.A. Blair J.A.:



Overview

[1]

The appellant seeks to set aside two orders of the Superior Court of
    Justice: (i) the order of Milanetti J. dated September 7, 2010, denying the
    appellants request for an adjournment of the trial of this action, and (ii)
    the order of Ramsay J. dated September 13, 2010, dismissing the action.

[2]

Liability was admitted in the action, and the adjournment request
    stemmed from the fact that the appellant did not have up-to-date medical
    reports ready for the commencement of trial on September 13 in order to prove
    her claim for damages.  When the adjournment was refused and the matter came on
    for trial on that date, the appellant called no evidence and the action was
    dismissed.  For practical purposes, then, the appeal turns on whether the order
    of Milanetti J. refusing the adjournment stands or falls.

Background

[3]

The appellant was injured on February 20, 2005 when she was a passenger
    in a vehicle struck by another vehicle driven by the respondent Vandersloot. 
    On December 1, 2005, she issued a statement of claim asking for $2 million in
    damages for injuries and losses arising out of the accident.  Pleadings were
    delivered and examinations for discovery were completed by the end of October,
    2006.  In January, 2007, the appellant and her family moved to Prince Edward
    Island and, thereafter, the evolution of the proceedings had a chequered
    history.  The following is a brief chronology of events:

January 23, 2008:  appellant attends a defence
    medical examination by Dr. Arthur            Port in Hamilton, Ontario

June 6, 2008:  respondents serve the trial record

September 12, 2008:  parties consent to the action
    being struck from the trial list (appellants lawyer advises that the appellant
    had been involved in another car accident and the action arising from that
    accident should be tried with this action)

March 2009:  appellant returns to Hamilton from
    Prince Edward Island

May 5, 2009:   action restored to the trial list on
    consent (appellants lawyer learned that the appellant had not been involved in
    a subsequent accident)

July 17, 2009:  at assignment court, parties
    consent to a trial date of September 13, 2010

May 2010:  the appellant is psychologically
    assessed by Dr. Armenia for the purpose of this litigation.  She was also
    scheduled to have a   neurological assessment but she was late for the
    appointment           (having worked the night before and slept in) and the
    assessment does not proceed

May 2010:  appellant obtains employment as a
    bartender in Hamilton but stops work in August because of her ongoing injuries

July 27, 2010:  appellants lawyer serves a
    Housekeeping Assessment report dated July 22, 2010 on the respondents lawyer

September 7, 2010:  appellant requests that the
    action be removed from the trial list, or alternatively, that it be adjourned
    until the spring of 2011  Milanetti J. dismisses the motion

September 13, 2010:  the appellant calls no
    evidence when the trial is called and the action is dismissed by Ramsay J.

January 18, 2010:  Hambly J. grants the appellant
    leave to appeal the order of Milanetti J. to the Divisional Court

March 25, 2011:  Rosenberg
    J.A. orders that the appeal from the order of Milanetti J. and the appeal from
    the order of Ramsay J. be combined into one appeal in this Court

The Motion Judges Decision

[4]

In denying the request for an adjournment, Milanetti J. said:

Plaintiff seeks to
    adjourn the trial of this matter set for September 13, 2010.  The Defendant
    opposes it.  That trial date was chosen by both counsel at Assignment Court on
    July 17, 2009.

The
    matter has been set down for trial originally in June 2008 with an earlier
    trial date of September 12, 2008, once again agreed on by both counsel.  This
    date was evidently struck on consent based on a misapprehension that the
    Plaintiff had been involved in another accident.  This was not in fact the
    case.

...

This is a February 2005
    accident.  The passage of time cannot but mean that memories will fade.  I do
    not agree that there is no prejudice.  This request today stems from the
    Plaintiffs inability to have new medical reports.  Evidently medicals were arranged
    for May 2010 but the Plaintiff came to her appointment late and the Doctor
    refused to conduct the exams.  No alternate date has been proposed.

...

This matter was
    restored to the trial list
on consent
on May 5 some 16 months ago.  I
    had no explanation as to why medicals were not scheduled until May 2010. [Emphasis
    in original.]

...

The Plaintiff has an
    obligation to move her litigation along.  The lapses in doing so here are most
    significant.  I will not agree to adjourn this trial date yet again.  The
    parties agreed they were ready for trial in June 2008 and reiterated that
    readiness in May 2009.  To adjourn the matter yet again would, in my view,
    bring the administration of justice into disrepute.  Motion is dismissed.

The Applicable Legal Principles

[5]

Adjournment decisions are highly discretionary and appellate courts are
    rightly reluctant to interfere with them.  Laskin J.A. succinctly summarized
    the operative legal principles in
Khimji v. Dhanani
(2004), 69 OR. (3d)
    790 (C.A.).  Although he was in dissent, the majority accepted his articulation
    of the statement of principles.  At paras. 14 and 18 he said:

14.  A trial judge enjoys wide latitude
    in deciding whether to grant or refuse the adjournment of a scheduled civil
    trial.  The decision is discretionary and the scope for appellate intervention
    is correspondingly limited.  In exercising this discretion, however, the trial
    judge should balance the interests of the plaintiff, the interests of the
    defendant and the interests of the administration of justice in the orderly
    processing of civil trials on their merits.
In any particular case several
    considerations may bear on these interests.  A trial judge who fails to take
    account of relevant considerations may exercise his or her discretion unreasonably
    and if, as a result, the decision is contrary to the interests of justice, an
    appellate court is justified in intervening
.  In my opinion, that is the
    case here. [Emphasis added.]

18.  I begin with the
    overriding goal of our modern
Rules of Civil Procedure
: to ensure as far
    as possible that cases are resolved on their merits.  This goal is expressly
    set out in Rule 2.01(1)(a), which gives a judge power to grant any relief
    necessary to secure the just determination of the real matters in dispute.  Courts
    should not be too quick to deprive litigants of a decision on the merits.  The
    trial judge does not appear to have sufficiently taken into account that his
    order deprived the parties, especially the appellant, of a determination of
    the real matters in dispute.

See also
Ariston Realty Corp v. Elearim Inc.
[2007] O.J. No. 1497 (S.C.J.), at paras. 33, 36 and 38.

Application of the Legal Principles

[6]

Here, there are some factors favouring an adjournment refusal, to be
    sure.  The action has proceeded at a leisurely pace, particularly since
    examinations for discovery were completed in October 2006.  And, as Mr. Scott
    candidly conceded, the frailties in the explanation for the delay  the
    appellants failure to arrange to obtain the necessary medical reports in a
    timely fashion  works in favour of the respondents position.  As the motion
    judge noted, it is puzzling why it took the appellant until May 2010 to arrange
    for the medical examinations necessary to obtain the medical reports she required
    to establish her claim for damages  particularly where the matter had been restored
    to the trial list on consent in May 2009 and a trial date of September 13, 2010
    had been agreed to in July, 2009.

[7]

However, there are two factors that the motion judge did not take into
    account which, in my view, bring this case into the category of cases where, in
    spite of the foregoing, the overall interests of justice call for a decision of
    the real matter in dispute on the merits.  First, liability was admitted. 
    Secondly  apart from the general implications of delay (not really a factor in
    this case)  there is nothing in the record to indicate that an adjournment
    would result in prejudice to the respondents that could not be compensated for
    in costs.  Non-compensable prejudice plays a pivotal role in deciding whether
    to grant an amendment or an adjournment:
Khimji
, at para. 19.

[8]

It is significant that liability was admitted in this case.  The only
    issue to be determined was the quantum of damages sustained by the appellant.  This
    factor does not appear to have been considered by the adjournment judge  and
    in fairness, counsel were not able to confirm to us that it had been brought to
    her attention  but it is an important factor.  Fading memories over time are
    less of an issue where determination of the quantum of damages will depend
    primarily on expert evidence, rendering the motion judges principal concern
    about prejudice considerably less significant.

[9]

This feeds into the second consideration.  There is nothing to suggest
    that the respondents would suffer from any non-compensable prejudice if the
    trial had been adjourned from September 2010 to the following Spring.  Examinations
    for discovery had been completed and undertakings answered.  The respondents
    had a defence medical assessment of the appellant.  There is nothing in the
    record to indicate there are any witnesses important to the defence whose
    memory might be impaired by the passage of time.  The length of the proposed
    adjournment was not lengthy, approximately 6 months, and would not have
    disrupted the court schedule.

[10]

Finally, while the motion judge was justified in observing that the
    medical assessments should have been arranged prior to May 2010, she gave undue
    weight to the appellants lawyers failure to do so when all of the foregoing
    factors are taken into consideration.  As Hambly J. noted when granting leave
    to appeal to the Divisional Court in this matter, the often applied principle
    that the sins of the lawyer should not be visited upon the client applies in
    this case.  This principle was enunciated by this Court in
Halton Community
    Credit Union Ltd. v. ICL Computers Canada Ltd.
(1985), 8 O.A.C. 369, at
    para. 11:

Undoubtedly counsel is
    the agent of the client for many purposes ... but it is a principle of very
    long standing that the client is not to be placed irrevocably in jeopardy by
    reason of the neglect or inattention of his solicitor, if relief to the client
    can be given on terms that protect his innocent adversary as to costs thrown
    away and as to the security of the legal position he has gained.  There may be
    cases where the plaintiff has so changed his position that this is impossible.

[11]

This is such a case, in my opinion.  There is nothing to indicate that a
    further adjournment of six months would have in any way affected the security
    of the legal position [the respondents had] gained or changed their position
    in any way that could not be compensated for in costs.  Mr. Black submitted
    that it is inaccurate to say the appellant was placed irrevocably in jeopardy
    by reason of the adjournment refusal and the dismissal of the action, because
    she has other remedies open to her, namely a potential claim against her
    solicitor.  I am not prepared to say that she should be required to resort to
    such a remedy in the circumstances of this case.

[12]

Apart from the understandable frustrations experienced by presiding
    judicial officials and opposing parties over delays in the processing of civil
    cases, it is the overall interests of justice that, at the end of th
e
day, must govern.  Perell J. expressed this sentiment well
    in
Ariston Realty Corp.
, at para. 38:

In my opinion, a concern for the principles of
    natural justice and the appearance of justice being done explains why, perhaps
    to the chagrin of those opposing adjournments, courts should tend to be
    generous rather than overly strict in granting indulgences, particularly where
    the request would promote a decision on the merits.  This liberality follows
    because it is in the public interest that whatever the outcome, a litigant
    should perceive that he or she had their day in court and a fair chance to make
    out their case.

[13]

Here, at the end of the day, the interests of justice favour the
    appellants having her day in court to put forward her claim for damages on the
    merits.

Disposition

[14]

For the foregoing reasons, I would set aside the order of Milanetti J.
    refusing the adjournment.  It follows from this that the order of Ramsay J.
    dismissing the appellants action must be set aside as well.  The action is
    reinstated and a new trial ordered.

[15]

Recognizing that his client is seeking an indulgence, Mr. Scott does not
    seek costs of the proceedings before either Milanetti J. or Hambly J.  Nor did
    he strenuously press for costs here.  In all the circumstances, we think this
    is not a case for costs in this Court and we make no order as to costs.

R.A. Blair J.A.

I agree E.A. Cronk
    J.A.

I agree G.R. Strathy
    J. (Ad hoc)

RELEASED:  January 31, 2012


