





CITATION:
Aguas v. Rivard Estate, 2011
          ONCA 494



DATE:
          20110706



DOCKET: C52438



COURT OF APPEAL FOR ONTARIO



Rosenberg, Feldman and Juriansz JJ.A.



BETWEEN



Luisa Aguas



Plaintiff (Appellant)



and



The Estate of Curtis Rivard, deceased, Premier Express
          Lines and Associates Leasing



Defendants (Respondents)



William G. Scott and Doug Wright, for the appellant



David Bierstone, for the respondents the Estate of Curtis
          Rivard, deceased, and Premier Express Lines

No one appearing, for the respondent Associates Leasing
*



Heard: February 4, 2011



On appeal from the order of Justice Silja S. Seppi of the
          Superior Court of Justice, dated July 5, 2010.



Rosenberg J.A.:



[1]

The appellant appeals from the order of Seppi J.
    dismissing her motion to set aside the Registrars administrative dismissal
    order.  In lengthy and comprehensive
    reasons, the motion judge, applying the test from
Reid v. Dow Corning Corp
. (2001), 11 C.P.C. (5th) 80 (Ont. S.C.),
    revd on other grounds 48 C.P.C. (5th) 93 (Ont. Div. Ct.), as explained in
    cases from this court such as
Wellwood v.
    Ontario (Provincial Police)
(2010), 102 O.R. (3d) 555 (C.A.),
Scaini v. Prochnicki
(2007), 85 O.R.
    (3d) 179 (C.A.) and
Marché D'Alimentation
    Denis Thériault Ltée v. Giant Tiger Stores Ltd.
(2007), 87 O.R. (3d) 660
    (C.A.) held that the appellant had not shown that the dismissal should be set
    aside.

[2]

In my view, while the motion judge identified the
    proper test and purported to apply the contextual analysis required by the
    cases from this court, she made palpable and overriding errors in three
    respects:

(1)      Finding that there was no explanation for
    the litigation delay;

(2)      Finding that prejudice to the respondents
    favoured dismissing the motion; and

(3)       Applying the principle of finality.

THE CHRONOLOGY

[3]

The action that was administratively dismissed arises
    out of a motor vehicle accident on October 5, 2001.  The appellant alleges that a tractor trailer
    driven by the late Curtis Rivard swerved into the appellants lane on Highway
    401.  Mr. Rivard passed away sometime
    after the accident.  The respondents, the
    Estate of Curtis Rivard, deceased and Premier Express Lines, however, have an
    independent witness who has told the police and the respondents investigator
    that it was the appellant who caused the accident by swerving into the tractor
    trailer.

[4]

The appellant was involved in a second motor vehicle
    accident on March 27, 2005.  She has
    commenced a separate action against the driver and owner of the vehicle involved
    in that accident.

[5]

The motion before the motion judge arose out of the
    administrative dismissal of the action by the Registrar on August 15, 2007
    because the appellant neither set the matter down for trial within two years of
    filing of the statement of defence nor obtained an order from a judge presiding
    at a status hearing in accordance with rule 48.14.  The status notice and the order dismissing
    the action were sent to the appellants former counsel by the court office, but
    not to current counsel, even though the motion of change of solicitor was
    properly filed with the court office before the status notice was sent out.

[6]

As is invariably the case in this type of appeal, the
    chronology is important:

October 5, 2001        Accident #1.

October 6, 2003       Statement of claim issued for accident #1.

June 16, 2004          Order to continue, following death of
    Mr. Rivard.

March 27, 2005        Accident #2.

August 26, 2005      Discovery of appellant in action #1 by
    counsel for respondents.

May 4, 2006              Notice of Change of Solicitor to
    appellants present solicitors served and filed.

March 27, 2007       Statement of claim for accident #2 issued.

April 13, 2007         Continued discovery of appellant in
    action #1.

May 1, 2007             Status notice sent by the court
    office to appellants former counsel and respondents counsel.

August 15, 2007      Order dismissing action sent to
    appellants former counsel and respondents counsel.

May
    5, 2008             Counsel for defendant
    Associates Leasing writes to counsel for appellant and respondents as follows:

I have yet to
    receive a response to my letters of April 13 and October 11, 2007 and May 5,
    2008.

We have conducted a
    search of the court files and have determined that [action #1]  was dismissed
    by order on August 15, 2007.

Can counsel please confirm the status
    of these actions.

June 25, 2008          Discovery of appellant in action #2 by
    counsel for defendant in that action; counsel for respondents attends on
    watching brief.

April 14, 2009         Continued discovery of appellant in
    action #2 by counsel for defendant in that action; counsel for respondents
    attends on watching brief.

September 2009      Ms. Ramsden takes over carriage of the action
    and discovers the May 2008 letter from counsel for Associates Leasing and
    learns for the first time that action had been dismissed by the Registrar.

October 5, 2009       Continued discovery of appellant in
    action #2 by counsel for defendant in that action; counsel for respondents
    attends on watching brief.

October 7, 2009        Notice of motion to set aside dismissal.

[7]

A key document in this case is the letter from counsel
    for Associates Leasing to counsel for the appellant and the respondents.  As indicated above, Ms. Ramsden discovered
    the letter when she took over responsibility for the file.  The lawyer in the firm who formerly had
    carriage of the action, Ms. Sokoloff, states that she never saw the May 2008
    letter until it was drawn to her attention by Ms. Ramsden.  Ms. Sokoloff has checked with her two law
    clerks and they both stated that they had no recollection of the letter.   Ms. Ramsden was not cross-examined on her
    affidavit.

REASONS OF THE MOTION JUDGE

[8]

The motion judge made the following findings in the
    course of applying the
Reid
test.  The plaintiff did not give any
    reason whatsoever for the slow progress of the matter up to the date of the
    status hearing notice.  And, even though
    the appellants counsel did not receive the status notice and the order of
    dismissal, she should have known that under the rules, failure to set down the
    action within the time provided in rule 48.14 would lead to dismissal of
    the action.

[9]

However, counsels failure to respond immediately to the
    status hearing notice and the order dismissing the action were inadvertent and
    the result of the error by the court in sending the notice and order not to her
    but to the former solicitors.  Nevertheless, the failure to bring the motion promptly after receipt of
    the May 5, 2008 letter was not adequately explained:

The plaintiff has not explained this unusual
    circumstance of a crucial letter in the clients file not being read or acted
    upon by counsel.  Counsel merely deposes
    it was through inadvertence the motion to set aside the dismissal order was
    not brought until October, 2009, when the letter was discovered in the file
    after it was reassigned.  The letter was in the file. It must have been
    received.  Why was it ignored?

[10]

While the appellant could not be held responsible for
    the eight month delay from August 2007 to May 2008 because the order of
    dismissal was sent to the wrong solicitor, the 17-month delay thereafter was
    not adequately explained.  Absent a full
    explanation the conclusion is that the plaintiff did not promptly move to set
    aside the order after receipt of the letter informing counsel of the dismissal
    order.  The motion judge concluded that
    the failure to respond to this letter appeared to have been due to a systemic
    problem of file management or other unknown and [un]explained cause.  The information did not support a finding of
    inadvertence.

[11]

As to prejudice, trial fairness would be impacted
    should the memory of the respondents only witness to the accident be
    impaired.  Prejudice could be inferred in
    this type of case.  There was also a
    presumption of prejudice because of the passage of time since the limitation
    period expired.

[12]

Weighing all four of the
Reid
factors, as explained in
Marché
,
    supported dismissal of the motion.  In weighing
    these factors, the respondents were entitled to rely on the finality of the
    Registrars Order.

ANALYSIS

[13]

The motion judge relied on this court`s decisions in
Marché
and
Wellwood
.  Those decisions
    make the important points that the rules, including Rule 48.14, are intended to
    promote the timely resolution of disputes and finality.  Those principles are given effect in the
    context of a motion to set aside an administrative dismissal under Rule 48.14
    by reference to the
Reid
factors.  At paragraph 32 of
Marché
, Sharpe J.A. also pointed to the
    risk that countenancing negligence and incompetence of solicitors will
    undermine public confidence in the administration of justice.  Sharpe J.A. also emphasized the importance of
    finality in that case, at para. 38:

When an action has been disposed of in favour of a
    party, that party's entitlement to rely on the finality principle grows
    stronger as the years pass. Even when the order dismissing the action was made
    for delay or default and not on the merits, and even when the party relying on
    the order could still defend itself despite the delay, it seems to me that at
    some point the interest in finality must trump the opposite party's plea for an
    indulgence. This is especially true where, as in the present case, the opposite
    party appears to have another remedy available.

[14]

In
Wellwood
,
    this court also emphasized the importance of finality.  In that case, Cronk J.A. also wrote at length
    about the prejudice factor and especially about presumed prejudiced where the
    administrative dismissal is made after expiry of the limitation period.

[15]

However,
Marché
and
Wellwood
have important
    distinguishing features. In
Marché
,
    an important factor in finding that the explanation for the delay was not
    satisfactory and that the deadlines were not missed due to inadvertence was
    that the solicitor effectively abandoned the file (para. 27).  And in
Wellwood
,
    Cronk J.A. noted at paragraph 74 that on the findings of the Master in that
    case, the delay occasioned by the plaintiff was intentional.  She found as follows at para. 79:

Further, on the facts of this case, it is my view
    that invocation of the finality principle, in the context of full consideration
    of the other factors relevant to the decision whether to set aside the
    dismissal orders, was dispositive of the central issue before the master. In
    particular, I note that the respondent failed to comply with the mandatory
    requirements of rule 37.14(1); that he failed to provide a satisfactory
    explanation for his delay in moving to set aside the dismissal orders; and that
    even when he determined to seek such relief, his motion for relief was not
    brought promptly. In these circumstances, I conclude that this is the type of
    case described by Sharpe J.A. in
Marché
, in which finality must trump.

[16]

In my view, the motion judge in this case erred in finding that there was
    no explanation for the litigation delay before the Registrar`s Order and in
    holding that the respondents were entitled to rely upon the finality principle
    as explained in
Marché
and
Wellwood.
I will deal first with the question of
    explanation for the delay.
This
    is not a case like
Marché
or
Wellwood
where there were findings that
    the solicitor had put the file in abeyance and intentionally and stubbornly
    refused to proceed with the action (
Marché
at para. 26) or where the delay was intentional (
Wellwood
at para. 74).  This
    action was not proceeding with lightning speed but steps were being taken.  Discoveries were held in August 2005 and
    April 2007 before the dismissal of the action.  The pace of the litigation was also complicated and directly affected by
    the second accident.  Obviously, the
    assessment of damages from the first accident would be impacted by the second
    accident.  That this is the case is
    evident from the fact that counsel for the respondents attended the discoveries
    of the appellant in the second accident even though he was aware that the first
    action had been dismissed in August 2007.  It was a palpable and overriding error to say that the appellant did not
    give any reason whatsoever for the slow progress of the matter up to the date
    of the status hearing notice.

[17]

The motion judge put a lot of emphasis on counsels  failure to respond to the May 2008 letter from
    a third partys lawyer advising that the action had been dismissed. The motion
    judge attributed this lapse to negligence in file management rather than mere
    inadvertence.  This characterization of
    the delay favoured dismissal of the motion.  That said, when the new lawyer saw the May 5, 2008 letter she moved almost
    immediately to set aside the administrative dismissal.

[18]

The motion judge inferred prejudice from the lengthy
    passage of time, the nature of the action and the expiration of the limitation
    period.  I accept those findings.  That said, in my view, the motion judge
    placed unreasonable emphasis on prejudice.  The respondents counsel continued to attend the discoveries in the
    second action and raised not the slightest indication that something was
    amiss.  It is difficult to see what
    prejudice the respondents suffered in those circumstances.

[19]

I appreciate that the appellant, as plaintiff, bore
    responsibility for moving the action along, but respondents counsels lack of
    display of any sense of urgency undercuts the claim of actual prejudice.  Counsel for the respondents must have
    realized that counsel for the appellant had made a mistake and was not aware
    that the action had been dismissed by the Registrar; otherwise, why did appellants
    counsel not query respondents counsels attendance at the discoveries and why
    did no one raise the issue of the need for a motion to set aside the
    administrative dismissal?

[20]

Finally, in my view, the motion judge erred in holding
    that the respondents were entitled to rely on the finality of the Registrars
    Order.  The respondents did not proceed
    as if they were acting on the principle of finality; they continued to
    participate in the litigation, most obviously by attending the discoveries in
    the second accident.

[21]

In my view, when the various factors are considered in
    context, the Registrars Order should have been set aside.  The most important context was that: (1) the
    appellant continued to move the action along, participating in five
    examinations for discovery with respect to the two actions, before and after
    the first action was dismissed; (2) the Registrars Notice and Order dismissing
    the first action were not sent to the appellants counsel by the court; and (3)
    respondents counsels actions do not support actual prejudice or reliance on
    finality.

DISPOSITION

[22]

Accordingly, I would allow the appeal and set aside the
    Registrars Order dismissing the action as against The Estate of Curtis Rivard
    and Premier Express Lines.  As this is an
    indulgence to the appellant, I would award no costs of the motion. The
    appellant is entitled to costs of the appeal fixed at $5,000, inclusive of
    disbursements and H.S.T.

Signed:           M. Rosenberg J.A.

I
    agree K. Feldman J.A.

Juriansz J.A. (Dissenting):


OVERVIEW

[23]

I have read the reasons of my colleague Rosenberg J.A.
    but do not agree with his analysis or the result he reaches. I would dismiss
    the appeal.

[24]

The motion judges decision on a motion to set aside a
    Registrars dismissal order involves an exercise of discretion:
Wellwood
at para. 36. Since that
    discretion is exercised as part of the judges duty to manage her own courts
    trial list, it attracts significant deference from this court:
Finlay
at para. 6. This court reviews
    such a decision, not with the aim of replacing it with the decision it would
    have made itself, but with a view of determining whether the motion judge erred
    in arriving at her decision. The legal principles that apply are general but
    clear. Their application to a specific fact situation is necessarily
    qualitative and does not drive toward a single result that all judges would
    necessarily reach. The question on appeal is whether the result reached by the
    motion judge is reasonable.

[25]

In this case, the motion judge identified the proper
    test and applied the contextual analysis required by
Scaini
. Each of the findings she made was supported by the record.
    She carefully referenced decisions of this court for each step of her
    reasoning. I fear that interfering with her considered exercise of discretion
    will have the effect of rendering the jurisprudence of this court so uncertain
    that trial judges will have difficulty understanding and applying it.
    Uncertainty in the jurisprudence will have the result that a court of appeal
    decision will be required to determine the final status of a case
    administratively dismissed under rule 48.14, which is intended to remove cases
    from the courts docket without any judicial involvement.

ANALYSIS

[26]

I respectfully disagree with the reasoning of my
    colleague in this case in several respects.

Burden of Proof

[27]

First, in my view, he fails at several points in his
    analysis to keep on the appellant the burden of satisfying the court that the
    dismissal order should be set aside. I will identify these points in the course
    of my reasons.

Fresh View of Facts

[28]

Second, in my view, he reweighs the evidence and takes
    a fresh view of the facts.  My colleague
    infers that the respondents counsel knew that appellants counsel had made a
    mistake and acted to take advantage of it. He says that [c]ounsel for the
    respondents must have realized that counsel for the appellant had made a
    mistake and was not aware that the action had been dismissed by the Registrar.

[29]

That counsel for the respondents realized counsel for
    the appellant had made a mistake is not a finding of fact made by the motion
    judge. Furthermore, in my view, if inferences were appropriate at this stage,
    that inference is not supported by the record. The respondents solicitors had
    no reason to suspect that the court office had sent the status notice and
    dismissal order to the wrong address and that the appellants solicitors were
    unaware of the correspondence in their own file. My colleague infers that the
    respondents solicitors knew of the appellants solicitors mistake because
    they attended the continued discoveries in the second action and did not raise
    the slightest indication that something was amiss. They did know that the
    other defendant in the action had indicated something was amiss, and had
    advised the appellant that the action had been dismissed and did so in writing
    on May 5, 2008. In my view, the inference cannot rest on the mere fact that
    respondents counsel did not repeat this information at the discoveries in the
    second action that continued on June 25, 2008, mere weeks after the letter of
    May 5, 2008. The burden was on the appellant to establish the facts needed
    to support her motion. She introduced no evidence that the respondents
    solicitors were aware that her solicitors had not received the status notice
    and dismissal order and had failed to note the correspondence in their file. In
    my view, the better inference is that the respondents solicitors believed the
    appellants solicitors knew the action had been dismissed and attended the
    subsequent discoveries expecting a motion to set aside would be brought.

Litigation Delay

[30]

My colleague questions the motion judges finding that
    there was no explanation for the litigation delay. He observes that this action
    was not proceeding with lightning speed but steps were being taken. The issue
    on appeal, as I see it, is not whether there were steps taken that could
    support a finding that there was no unreasonable litigation delay, but rather
    whether there were facts in the record to support the motion judges finding
    that there was litigation delay. The motion judge rested her finding of
    litigation delay principally on the 20 month delay from the appellants
    discovery of August 26, 2005 to its continuation on April 14, 2007. The 20
    month delay was in the face of a rule that requires an action to be listed for
    trial within 24 months of the filing of the defence. The 20 month delay is
    sufficient to support the motion judges finding.

[31]

My colleague accepts the appellants position advanced
    on appeal that the action arising from the second motor vehicle accident
    explains the delay in this action because the damages from the first accident
    would be impacted by the second accident. This is not an argument the appellant
    advanced before the motion judge. Before the motion judge, the appellants
    solicitors took the position that there was no litigation delay. The motion
    judge had an ample basis to reject that position. The action had not proceeded
    within the time frame prescribed in the rules. It had been commenced in
    October, 2003 and had not been set down for trial when dismissed on August 15,
    2007. As the motion judge found, the material filed by the appellant did not
    seek to explain this delay.

[32]

On appeal, the appellant has changed her position and
    argues that the motion judge should have found that the delay in the progress
    of the first action was attributable to the appellants action in regard to her
    second accident.

[33]

The first difficulty with that argument is that the
    appellants motion is not before this court
de
    novo
. The question before this court is whether the motion judge erred in
    her disposition of the motion. The motion judges reasons emphasize that the
    appellants position before her was that there was no litigation delay to
    explain.

[34]

The second difficulty with the submission is that the
    appellant filed no evidence to show how the second action hindered the progress
    of this action. While trying the two actions together might be the way most
    counsel would proceed, it should not be assumed, without evidence, that the
    appellants solicitors would have proceeded that way. The appellants
    solicitors affidavits do not indicate that they had obtained an order that the
    two actions be tried together or even that they intended to move for such an
    order. The affidavits do not even attempt to address how the second action
    explains the 20 month period of inactivity upon which the motion judge rested
    her finding of litigation delay. While the assumption that this action was
    delayed by the need to assess the appellants damages from both accidents is
    not unreasonable, the information in the record about the second action is not
    specific enough to permit the inference that it was the cause of the 20 month delay
    on which the motion judge rested her finding. With respect, it seems to me that
    my colleague has failed to maintain on the appellant the burden of establishing
    there was no litigation delay.

Prejudice

[35]

As the motion judge noted, the burden was on the appellant
    to convince the court that the defendants have not demonstrated any
    significant prejudice in presenting their case at trial as a result of the
    plaintiffs delay or as a result of steps taken following the dismissal of the
    action:
Marché
at para. 12.

[36]

I agree that the respondents solicitors attendance at
    the subsequent discoveries in the second action would have reduced any
    prejudice in their ability to prepare to litigate the appellants damages in
    this action. The important point, though, is that the motion judges findings
    of prejudice were in relation to the issue of liability. The discoveries in the
    second action could have no relevance to the issue of liability in the first
    action. In
Marché
, Sharpe J.A. held
    at para. 35 that it is not enough for the [plaintiff] to show that the [defendant]
    could advance its case despite the delay if the matter were allowed to proceed
    to trial.

[37]

My colleague accepts the motion judges findings of
    prejudice from the lengthy passage of time, the nature of the action and the
    expiration of the limitation period. I see no basis for concluding that the
    motion judge made a palpable and overriding error in her weighing of the
    prejudice to the respondents.

Delay in Moving to Set Aside not due to Inadvertence of Counsel

[38]

My colleague accepts the motion judges finding that
    the appellants solicitors lapse in this case constituted negligence in file
    management rather than mere inadvertence. He recognizes that [t]his
    characterization of the delay favoured dismissal of the motion.

[39]

The jurisprudence of this court, despite divergent
    dicta in some cases, is that the failures of counsel are a relevant
    consideration in exercising the courts discretion to set aside a dismissal
    order. In
Marché
, Sharpe J.A. also
    explained, beginning at para. 30, why it is relevant to assess the degree of
    fault involved where the dismissal order is due to a failure of the plaintiffs
    solicitor. He emphasized how the nature of the solicitors fault engages the
    public interest by pointing out that [l]awyers who fail to serve their clients
    threaten public confidence in the administration of justice. Therefore, the
    court should consider whether the solicitors failure amounted to more than the
    kind of lapse or inadvertent mistake that the legal system can
    countenance.  He added that the courts
    should opt for a resolution that discourages this type of conduct which
    undermines the important value of having disputes resolved in a timely fashion.
    Rather, the right message was one that provides the appropriate incentives to
    those involved in the civil justice system.  He cautioned against the risk that the public would perceive
    disregarding the solicitors conductas the legal system protecting its own. He
    advised that the courts should consider whether excusing delay in a particular
    case would throw into question their willingness to live up to the stated goal
    of timely justice. Finally, he observed that where negligence rather than mere
    inadvertence is involved, [l]eaving the Registrars order in place would not
    necessarily deprive the [plaintiffs] of a remedy. He concluded that [r]einstating
    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.

[40]

This court, in
Machacek
    v. Ontario Cycling Association
, 2011 ONCA 410, recently applied the
Marché
approach to a solicitors conduct
    that was responsible for the delay. After citing Sharpe J.A.s reasoning in
Marché
, the court added that the
    appellants are not left without a remedy as they still have recourse through an
    action in solicitors negligence.

[41]

It seems to me that the motion judge was much better
    positioned to assess whether the lapse of the appellants solicitors in
    apparently not reviewing their clients file for some 17 months was more than
    should be countenanced in the practice before her court. There is no indication
    in my colleagues reasons that any weight is given to the effect of the
    appellants solicitors conduct in undermining public confidence in the
    administration of justice, the damage caused by the perception that the legal
    system is protecting its own, the unwillingness of the courts to live up to their
    stated goal of timely justice, and the sending of a message that provides the
    appropriate incentives to those involved in the civil justice system. The
    result reached by the majority provides no incentive to lawyers to improve the
    quality of service to the public, for example by reviewing their files
    regularly, being mindful of the expiration of the time period stated in rule
    48.14, and generally moving their clients actions forward. Rather, the careful
    service provided by the respondents solicitors underpins the excusal of the
    appellants solicitors failures.

[42]

With respect, I see no basis for interfering with the
    weight the motion judge accorded this factor.

The Contextual Approach

[43]

My colleague says that the motion judge purported to
    apply the contextual analysis but made palpable and overriding errors in doing
    so. The contextual analysis, as Goudge J.A. said in
Scaini
, requires the court to consider and weigh all relevant
    factors to determine the order that is just in the circumstances of the
    particular case. Obviously, such an analysis can lead to more than one
    reasonable outcome. The appropriate appellate function is to ensure that the
    contextual analysis was properly employed, not to ensure that the factors were
    weighed and balanced to reach the result that the judges of the appellate court
    would have reached. Here, the motion judge did not commit the error identified
    in
Scaini
of requiring the appellant
    to satisfy each of the four criteria separately without considering and
    weighing all the relevant factors in the circumstances of the case.

[44]

With respect, it seems to me that rather than
    demonstrating error on the part of the motion judge, my colleague weighs the
    factors and balances them differently than does the motion judge, and does so
    on a fresh view of the facts.

[45]

In any event, I do not agree that an important
    contextual feature of this case is the fact that the Registrars Notice and
    Dismissal Order were not sent to the correct address. While the courts mistake
    is regrettable, the motion judge completely subtracted the delay that the
    mistake occasioned from the total period of delay. The motion judge called on
    the appellant to explain only the delay from the defendants letter of May 5,
    2008 and not the delay from August 15, 2007, the date of the dismissal order.
    In light of this, I am unable to understand why the courts misdelivery of the
    dismissal order forms part of the most important context in the contextual
    analysis of the delay the motion judge found.

The Authorities Relied upon by the Motion Judge

[46]

My colleague starts his analysis by seeking to
    undermine the motion judges analysis of finality by distinguishing
Marché
and
Wellwood
, two decisions of this court that the motion judge relied
    upon heavily. He points out that in
Marché
,
    the master found that the solicitor effectively abandoned the file and in
Wellwood
, this court described the delay
    as intentional. With respect, it is my view that a fair and sound reading of
    these cases does not permit them to be distinguished on the basis of these
    details. In both decisions, the court enunciated general principles that apply
    to all cases.

[47]

On my reading of these cases, that the solicitor
    effectively abandoned the file in
Marché
and that the delay was intentional in
Wellwood
were inferred from nothing more than the lack of action on the part of the
    plaintiffs solicitors in moving the cases forward. In
Wellwood
, the solicitors for the plaintiff filed an affidavit that
    they had been working on the file all along, which is hardly evidence of
    deliberately intentional delay. They swore that they had been occupied with
    drafting and redrafting the pleadings and motion materials. Despite this, the
    master observed that they had taken no meaningful steps to move the matter
    forward, and held that the plaintiff had failed to discharge his onus to
    establish that the delay was inadvertent rather than intentional. The masters
    findings were the basis of this courts remark at para. 74 that the delay was intentional.

[48]

In
Marché
,
    throughout the four year delay, the plaintiff remained in regular contact with
    counsel and provided additional funds to prosecute the action. However, counsel
    did nothing to advance the action. The master found that the explanations
    offered by counsel for his inaction were less than satisfactory and that he
    failed to communicate to the other side any intention to move the action toward
    trial. There was no evidence that counsel had actually put the file in abeyance
    and had formed the subjective intention not to advance the file. Because
    counsel had done nothing to move the action forward, the master concluded that
    counsel had put the file in abeyance and that his conduct spoke to a
    deliberate intention not to advance the litigation toward trial. These
    conclusions were inferred from counsels inaction.

[49]

In any event, a fair reading of
Marché
does not permit limiting the principles it enunciates to
    situations in which the solicitors conduct is described as effectively
    abandoning the file. In
Marché
,
    Sharpe J.A. discusses the import of rule 48.14 at the most general level. At
    para. 23, he says that [r]ule 48.14 is one of many rules of civil procedure
    designed to promote the timely resolution of disputes, to discourage delay in
    civil litigation, and to give the courts a significant role in reducing
    delays. After referring to some of the other rules that discourage delay and
    the courts discretionary power to dismiss an action for delay, Sharpe J.A.
    made the fundamental observation that delay in an individual case surpasses the
    rights of the particular litigants and engages the public interest. The strong
    public interest in promoting the timely resolution of disputes, he pointed out,
    had been recognized by the Supreme Court of Canada in
Blencoe v. British Columbia (Human Rights Commission)
, [2000] 2
    S.C.R. 307, where the court held at para. 146 that [t]he notion that justice
    delayed is justice denied reaches back to the mists of timeFor centuries,
    those working with our legal system have recognized that unnecessary delay
    strikes against its core values and have done everything within their powers to
    combat it. Sharpe J.A. added that [d]elay multiplies costs and breeds
    frustration and unfairness. [M]odern civil procedure, he observed at para.
    23, requires the discouragement of delay and the enhancement of an active
    judicial role to ensure timely justice.

[50]

It is apparent that in
Marché
, Sharpe J.A. discussed the rule and its application at the
    most general level. The import of his observations cannot be limited to cases
    in which the cause of the delay is described as a solicitor putting a file in
    abeyance.

[51]

While Sharpe J.A. talked about modern civil
    procedure, Cronk J.A. in
Wellwood
described rule 48.14 at para. 48 as a component of contemporary litigation.
    Certainly, the rule is one that departs from the traditional model of civil
    litigation. In the traditional model, the litigants control how quickly, or
    slowly, their cases move through the system and great value is placed on the
    determination of each case on its merits. Rule 48.14 is one that gives the
    court the authority and responsibility to actively manage the cases before it.
    The rule provides for the removal of individual cases from the courts docket
    to serve the greater public interest in an efficient court system.

[52]

It is worth noting that the shift away from the
    traditional model has not been universally embraced. As described by Garry D.
    Watson & Lynne Jeffrey,
Holmested and
    Watson: Ontario Civil Procedure
, vol. 4 Supplement (Toronto: Carswell,
    1993) at p. 48-25 and p. AR-90 to AR-91, Almost from its inception the
    procedure [under rule 48.14] became controversial, having both its supporters
    and detractors. The original rule required the Registrar to send out a status
    notice within
one year
from the
    statement of defence. Among other things, its detractors thought the rule was
    intrusive as it is for the parties and not the court to control the pre-trial
    process. The adherents of the traditional model sought to have it repealed, but
    despite their initiative, the Civil Rules Committee resolved to retain it in
    1991, but extended the time allowed to place a case on the trial list to two
    years.

[53]

As there has been no change to rule 48.14 since 1992, a
    plaintiff, even one who does not receive a status notice, must realize that
    failure to set the action down in the prescribed time will lead to the action
    being dismissed:
Marché
at para. 26.
    The plaintiffs solicitors, in such a case, should take the initiative to
    arrange a status hearing in order to obtain an order otherwise, as is
    contemplated by the rule. At the status hearing, the court may impose a
    timetable setting time periods for the completion of the remaining steps
    necessary to have the action placed on or restored to a trial list or the court
    may dismiss the action.

[54]

When this court disturbs a motion judges exercise of
    discretion not to set aside a Registrars dismissal order, it undermines the
    scheme of active case management of sluggish cases for which rule 48 provides.
    This highlights why this court has stated such decisions should be accorded
    significant deference. With respect, my view is that the majority has failed
    to show the requisite deference for the motion judges decision.

CONCLUSION

[55]

Every finding the motion judge made in analyzing the
    four
Reid
factors had a basis in the
    record. In making those findings, she carefully applied the principles this
    court set out in
Marché
and
Wellwood
. She considered and weighed the
    relevant factors in the circumstances of the particular case in arriving at her
    determination. Her determination was discretionary and made in the course of
    managing her own courts trial list. Given the significant deference her
    determination attracts, there is no basis for interfering with it.

[56]

I would dismiss the appeal and fix the respondents
    costs in the amount of $7,500, inclusive of disbursements and applicable taxes.

Signed:           R. G. Juriansz J.A.

RELEASED:  MR JULY
    5, 2011





*
The parties
    have agreed that the action, as against Associate Leasing, should be dismissed
    without costs.


