



COURT OF APPEAL FOR ONTARIO

CITATION: McDowell v. Cavan-Millbrook - North Monaghan
    (Municipality), 2016 ONCA 193

DATE: 20160308

DOCKET: C60167

Pepall, van Rensburg and Roberts JJ.A.

BETWEEN

Roderick Edward McDowell

Plaintiff (Appellant)

and

The Corporation of Cavan-Millbrook - North Monaghan
,

Mary
    Sutherland (deceased) and Millbrook Public Utilities Commission

Defendants (
Respondent
)

Roderick McDowell, in person

Raffaele Sparano, for the appellant

Christopher Afonso, for the respondent

Heard: February 9, 2016

On appeal from the order of Justice Myrna L. Lack of the
    Superior Court of Justice, dated February 17, 2015.

ENDORSEMENT

Introduction

[1]

In January 2001, the appellant, Roderick Edward McDowell, commenced an
    action against the respondent, the Corporation of Cavan-Millbrook - North
    Monaghan (the Municipality) and others. He asserted various causes of action
    including negligence, intentional torts and breach of contract. He claimed that
    the Municipality prevented him from obtaining approval of a plan of subdivision
    and limited his ability to sell his property between the years 1988 and 1997.

[2]

On February 17, 2015, the action was dismissed for delay under r. 24.01
    of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194. The appellant
    appeals from that dismissal.

[3]

Before the motion judge, the appellant was self-represented. Before this
    court, counsel argued the appeal on behalf of the appellant.

[4]

The appellant submits that the motion judge applied incorrect law, erred
    in finding that the appellants delay was inordinate and inexcusable, and erred
    in finding a failure to rebut the presumption of prejudice and actual
    prejudice. He also submits that the motion judge failed to comply with
    responsibilities owed to self-represented parties such as himself. Lastly he
    argues that the motion judge erred in failing to address his cross-motion for
    the production of documents.

[5]

For the reasons that follow, we would dismiss the appeal.

History of Proceedings

[6]

The chronology of proceedings may be briefly summarized. Initially, the
    parties were both represented by counsel. The statement of claim was issued on
    February 22, 2001 and the statement of defence was served on August 13, 2001. In
    2002, the parties exchanged affidavits of documents. The appellant became self-represented
    in April 2004. He was examined for discovery in July 2004 but the examination
    was incomplete and was adjourned. The action then lay dormant.

[7]

In July 2007, the action was administratively dismissed for delay. On
    consent of the Municipality, an order setting aside the dismissal was granted
    in November 2007. The examination for discovery of the appellant continued in
    October 2008. Thereafter, between November 2008 and September 2010, counsel for
    the Municipality wrote to the appellant on 14 occasions seeking answers to
    undertakings given on the appellants examination for discovery. The appellant
    provided answers by September 28, 2010.

[8]

In February 2011, the appellant served a further affidavit of documents.

[9]

On August 21, 2013, the Municipality served an experts report and
    advised the appellant that it would bring a motion to dismiss the action for
    delay if the action was not set down for trial. The appellant did not do so.

[10]

On
    November 8, 2013, the Municipality advised the appellant that it was bringing a
    motion to dismiss for delay. Still the appellant did not set the action down
    for trial.

[11]

The
    Municipality brought its motion to dismiss together with other requested relief
    in April 2014, returnable during the sittings commencing May 20, 2014.  In
    April 2014, at the appellants request, the motion was adjourned on consent to
    the sittings commencing November 17, 2014.

[12]

The
    appellant subsequently brought a cross-motion for production of documents which
    he served on November 17, 2014.

[13]

Both
    motions came on before the motion judge.  She adjourned the production motion and
    indicated that she would address it if the dismissal motion was unsuccessful.

[14]

The
    motion judge granted an order dismissing the action for delay. She noted the
    passage of 14 years since the action was commenced. She found that the Municipality
    had neither caused, nor acquiesced in, the delay, which was both inordinate and
    inexcusable.

[15]

The
    appellant had failed to rebut the presumption of prejudice and the evidence
    also established actual prejudice. Due to the delay, evidence was unavailable
    to the Municipality. The composition of the municipal council had changed many
    times, and officials and employees with knowledge of events were no longer in
    office. Furthermore, the Municipalitys discovery representative had died. Given
    the dismissal, the motion judge saw no need to address the production motion.

Analysis

[16]

Rule 24.01(1)(c) provides that a defendant not in default may move for
    dismissal of an action for delay where the plaintiff has failed to set the
    action down for trial within six months after the close of pleadings.

[17]

In
    submitting that the motion judge erred in her description of the applicable
    law, the appellant focuses on the motion judges statement that the Municipality
    was under no obligation to move the appellants case along to trial. This
    comment must be read in context. The motion judge concluded that there was no evidence
    that the Municipality or its counsel was the cause of any delay. While the
    Municipality would be at liberty to set the action down for trial, it was not
    obliged to do so. There is no substance to the appellants suggestion that the
    Municipality laid in wait to pounce on the appellant. To the contrary, it had
    given the appellant numerous warnings of the need to set the action down for
    trial and his exposure to a motion to dismiss.

[18]

The
    motion judge concluded that there was inordinate and inexcusable delay in the
    litigation for which the appellant was responsible. She made no palpable or
    overriding error in this regard. Given the lengthy history of the action, the
    appellants inactivity, and the absence of any credible excuse for the delay,
    the motion judges finding was reasonable and supported by the evidence.

[19]

Once
    inordinate and inexcusable delay is found, there is a presumption of prejudice.
     See
Armstrong v. McCall
(2006), 213 O.A.C. 229 (C.A.), at para. 11,
    citing
Woodheath Developments Ltd. v. Goldman
(2003), 66 O.R. (3d) 731
    (Div. Ct.), leave to appeal refused (2004), 44 C.P.C. (5th) 101 (Ont. C.A.). The
    appellant did not lead any convincing evidence to rebut this presumption and as
    such, there was no need for any finding of actual prejudice, even though the
    motion judge concluded that actual prejudice existed.

[20]

The
    appellant argues that being self-represented, he was unaware of certain
    procedural steps and in particular, that he or the Municipality could have set
    the action down for trial in the absence of document production from the Municipality
    and in the absence of a resolution of his lawsuit against his former counsel.

[21]

The
    court system often presents considerable challenges to people who are
    unrepresented by counsel. Participants in the justice system should not be
    denied relief on the basis of a minor deficiency. That said, a participant,
    including a self-represented party, has a responsibility to familiarize him or
    herself with the procedures relevant to the case. Here the delay was indeed
    inordinate and prejudicial, and resulted in a substantial risk that a fair
    trial would not be possible. The appellants conduct cannot be excused simply
    because he was self-represented. This would work an injustice to the respondent
    and to other participants in the system.

[22]

Lastly,
    the motion judge did not err in adjourning the production motion. The
    appellants motion was served four days before the hearing and would be moot if
    the dismissal for delay motion was granted. The adjournment was a discretionary
    decision and uninfected by any error.

Disposition

[23]

The
    appeal is dismissed. As agreed, the appellant is to pay the respondents costs
    on a partial indemnity scale fixed in the amount of $3,300, inclusive of
    disbursements and HST.

S.E. Pepall J.A.

K. van Rensburg J.A.

L.B. Roberts J.A.


