



COURT OF APPEAL FOR ONTARIO

CITATION: D'Souza v. Brunel International Inc. (ITECC
    Consulting), 2019 ONCA 339

DATE: 20190426

DOCKET: C66004

van Rensburg, Benotto and Harvison Young JJ.A.

BETWEEN

Allan DSouza

Plaintiff (Appellant)

and

Brunel
    International Inc. o/a ITECC Consulting,

ACS
    Automation Ltd., 671418 Ontario Inc.,

and/or
    2066597 Ontario Limited, and/or 671420 Ontario Inc.,

and/or 2066417 Ontario Limited o/a Pivotal
    Integrated HR Solutions

Defendants (Respondents)

Sean Dewart, for the appellant

Cynthia Ingram, for the respondents

Heard: March 15, 2019

On
    appeal from the order of Justice Silja S. Seppi of the Superior Court of
    Justice, dated September 21, 2018.

van Rensburg J.A.:

[1]

The appellants employment with the respondent, Brunel International
    Inc. o/a ITECC Consulting (ITECC), was terminated in September 2003. In
    January 2004, ITECCs business was acquired by the respondent Pivotal
    Integrated HR Solutions (Pivotal). In 2009, just within the then applicable
    limitation period, the appellant commenced an action claiming damages for
    wrongful dismissal.
[1]


[2]

The appellants function was to secure and administer contracts with
    various businesses for the placement of personnel in the information technology
    field. He claims that, under his employment contract, he was entitled to
    additional commissions on all placements he generated, even after the
    termination of his employment. Among other things, the appellant asserts that,
    in August 2003, he secured an agreement with Siemens Canada (Siemens) in
    respect of which he is entitled to significant commissions.

[3]

The appellants action was set down for trial in 2013, fixed for trial
    in the May 2015 sittings, adjourned to successive sittings twice at the
    appellants request, and then struck from the trial list in 2016 by Daley
    R.S.J., who gave reasons for his decision. This is an appeal of the order of
    Seppi J., dated September 21, 2018, refusing to restore the action to the trial
    list.

[4]

A decision on a motion under r. 48.11 of the
Rules of Civil
    Procedure
, R.R.O. 1990, Reg. 194, is discretionary and entitled to
    deference. It may therefore only be set aside on appeal if made on an erroneous
    legal principle or if the decision is infected by a palpable and overriding
    error of fact:
Cariocas Import & Export Inc. v. Canadian Pacific
    Railway Limited
, 2015 ONCA 592, 128 O.R. (3d) 143, at para. 4.

[5]

The appellant acknowledges that the motion judge articulated and then sought
    to apply the correct test in determining whether to restore his action to the
    trial list under r. 48.11. In particular, she considered whether the appellant had
    provided an acceptable explanation for the delay and whether he had demonstrated
    an absence of non-compensable prejudice to the respondents resulting from the
    delay:
Nissar v. Toronto Transit Commission
, 2013 ONCA 361, 115 O.R.
    (3d) 713, at para. 31;
Cariocas
, at para. 44. The appellant contends,
    however, that the motion judge made three reversible errors.

[6]

First, the appellant says that that the motion judge erred in her
    treatment of delay. The motion judge took into consideration the appellants earlier
    delays in prosecuting the action, which he says were irrelevant, and she failed
    to consider his efforts to move the action along. Unlike other cases where a
    plaintiff has done little to move ahead with a dormant action, he was actively
    taking steps, although some of the steps were admittedly ineffective in moving
    the action forward.

[7]

I do not accept this submission.

[8]

In a motion to restore an action to the trial list, where the effect of refusing
    the order is to bring the action to an end, the court must determine whether a
    reasonable explanation has been provided for the relevant period of delay and
    whether the defendant will suffer non-compensable prejudice if the action is
    restored to the trial list.
Where delay has been addressed in a prior court order, or
    consented to, it is any subsequent delay that requires explanation:
Stokker
    v. Storoschuk
,
    2018 ONCA 2, 140 O.R. (3d) 473, at para. 5.
And while the court should
    not mechanically review each step in an action and require a plaintiff to
    explain every period of delay, the overall delay of the plaintiff in
    prosecuting the action is a factor that can inform the courts assessment of
    whether an acceptable explanation has been provided by the plaintiff and
    whether the defendant will suffer non-compensable prejudice if the action is
    restored to the trial list:
Cariocas
, at para. 62;
Stokker
,
    at para. 14.

[9]

Here, the relevant period of delay was in relation to the appellants
    efforts to obtain production of documents, especially those in the hands of the
    third party, Siemens. The appellant delayed in pursuing the documents that his
    counsel at the time (not Mr. Dewart) represented were important to his claim.
    This led to two earlier adjournments of the trial. Daley R.S.J. struck the
    action from the trial list because the appellant brought a motion during the
    second week of the May 2016 trial sittings respecting Pivotals (and not
    Siemens) business records, and seeking to adjourn the trial. Daley R.S.J.
    stated that the fact that the action was not ready for trial was entirely the
    fault of the appellant, who had not diligently pursued whatever production and
    disclosure he claims is outstanding and had moved now without any explanation
    for the delay in doing so.

[10]

Although the motion judge provided some background indicating that the
    appellant had delayed for almost six years in commencing his action and in its
    prosecution, her focus was on the appellants delay in obtaining the required
    documents.

[11]

Paragraphs 6 through 10 of the motion judges reasons set out the
    relevant chronology respecting the appellants failure to move diligently to
    pursue the documents his counsel claimed were needed to proceed to trial, until
    the point at which the action was struck from the trial list. In particular:

·

When he set down his action for trial in 2013, the appellant certified
    that there were no outstanding or contemplated motions or discoveries.

·

At the pretrial conference in 2014, the appellant advised of his intention
    to bring a motion seeking examination of a Siemens representative (an intention
    that had been communicated in March 2013, but not pursued). The pretrial judge
    set a timetable for the motion, and the action was placed on the list for the
    May 2015 trial sittings. No such motion was brought.

·

In April 2015, the appellants counsel wrote to say that the
    appellant was not ready for trial and to request further documents (in
    particular in relation to placements with Siemens). The trial of the action was
    adjourned on consent to the January 2016 sittings.

·

In December 2015, the appellant sought another adjournment,
    stating in an affidavit that he would be bringing a motion for the examination
    of a representative of Siemens, and that the trial could then proceed. The
    respondents consented, on the condition that the appellant would seek no
    further adjournment of the trial. The trial was adjourned to the May 2016
    sittings. (In the interim, the respondents representative was re-examined for
    discovery.)

·

Again, no r. 30.10 motion was brought. When, two weeks into the
    May 2016 sittings, the appellant moved for additional records and information
    from Pivotal, the action was struck from the trial list.

[12]

The motion judge then considered what had transpired in relation to the
    documents after the action had been struck from the trial list and before the
    motion came before her in September 2018. In this regard, she noted that,
    although Daley R.S.J. had made clear in May 2016 what needed to be done, the
    appellant had moved to restore the action to the trial list in July 2017
    without having brought his third party records motion. The motion was dismissed
    because the appellant was still not ready for trial.

[13]

The motion judge noted that, after the r. 30.10 motion was finally
    brought (in August 2017), the appellant received a 32-page bundle of computerized
    spreadsheets from Siemens, which used codes and, on their face, did not provide
    evidence that the transactions listed related to Pivotal or the appellant. These
    documents were provided to the respondents counsel in October 2017. In a
    letter dated May 4, 2018, the appellants counsel provided a document prepared
    by a chartered accountant, suggesting that the documents showed unpaid
    commissions of $2,750,000 owing to the appellant unless Pivotal could prove its
    actual costs for placement. (I note that the May 4 letter also requested
    further documentary productions from Pivotal, including copies of its financial
    statements and corporate tax returns from 2004 to 2010.)

[14]

Ultimately, the motion judge concluded that there was no reasonable
    explanation for the appellants delay in obtaining the records in question, that
    the appellant was still not ready for trial and that the delay had occasioned
    prejudice to the respondents in their defence of the action. In particular, the
    motion judge concluded that the respondents ability to fully and fairly
    respond to the appellants claims had been severely compromised by the delays: 
    documents that might have originally been available from Siemens to clarify
    what was produced, and evidence that may have been available early on for the
    respondents to answer the claims, were no longer available.

[15]

I see no error in the motion judges treatment of the relevant period of
    delay. While the motion judge referred to the appellants delay in commencing
    his action and then pursuing the action (until a timetable was set by the court
    at a status hearing), the focus of her analysis was on the appellants delay in
    pursuing documents in the hands of a third party, Siemens, that were relevant
    to his claim for commissions. It was this period of delay that was not
    explained adequately, or at all, by the appellant.

[16]

The appellants second, and related, argument on appeal is that he was
    unfairly blamed for all of the delay that occurred. Here, according to the
    appellant, the motion judge ignored the respondents contribution to the delay,
    as well as court delay in the scheduling of his motion to restore the action to
    the trial list, which were factors beyond his control. Although not stated as
    such, this is an argument that goes to whether the appellant has provided a
    reasonable explanation for the relevant delay.

[17]

The appellant contends that the respondents contributed to the delay
    because they had notice of the particulars of the appellants claims and the
    need to preserve documents as early as September 25, 2003, when the appellants
    counsel sent his demand letter, and because, on discovery in November 2012, the
    respondents neglected or refused to produce Pivotal records that would have
    supported his claims.

[18]

I disagree. The respondents general obligation to secure and to produce
    relevant documents while litigation is outstanding does not explain or excuse the
    appellants continuous delay over the course of the action in pursuing
    documents that his counsel considered necessary to prove his claim. Throughout
    the proceedings, the respondents maintained that they had no knowledge of the
    agreement alleged to have been entered into by the appellant with Siemens, and
    that they had no documents relating to placements generated by the appellant at
    Siemens after January 1, 2004.

[19]

The appellant commenced and then withdrew a motion for refusals in 2013,
    when the respondents representative stated by affidavit, among other things, that
    the Defendants have no listings, other than the documents produced, of
    employees and/or contractors of ITECC that may have been placed with Siemens
    from January 1, 2004 onwards. The appellant decided in 2015 to pursue the issue
    again, arguing that he needed explicit confirmation that Pivotal had no records
    relevant to the alleged unpaid commissions. By November 2015, he had
    re-examined the respondents representative and received such confirmation. The
    appellants counsel admits that the respondents did nothing after November 2015
    to contribute to the relevant delay  that is, in respect of his pursuit of
    documents to support his claim for commissions as a result of placements with
    Siemens  and I see nothing in the period leading up to November 2015 to
    suggest that the respondents were preventing the appellant from pursuing the
    documents he required or otherwise impeding the progress of the action.

[20]

The appellant was aware of the need to seek production of documents from
    Siemens from at least the examination for discovery of the respondents
    representative in November 2012, when they denied knowledge of the agreement the
    appellant claimed to have secured with Siemens, and suggested that he seek
    production of any such agreement directly from Siemens. At the pretrial
    conference in November 2014, it was ordered on consent that the appellant bring
    his r. 30.10 motion by December 20, 2014, with the motion to be heard by
    January 31, 2015. Later, the trial was adjourned from the January 2016 sittings
    so that he could bring such a motion. When the action was struck from the trial
    list in May 2016, he still had not brought his motion.

[21]

Contrary to the appellants submission, there was no contribution by the
    respondents to the appellants delay in pursuing the documents that would
    support his claim.  Nor did the respondents acquiesce in the delay. The extensive
    record in this case, which includes affidavits filed by the respondents
    representative at various stages of the litigation, makes it clear that the
    appellants delay in pursuing documents and proceeding to trial was a live
    issue and of concern to the respondents from at least March 2013.

[22]

The appellant also asserts that the delay between December 2016 and July
    2017 was outside his control because it was unclear whether Daley R.S.J. was
    seized with the motion to restore the action to the trial list. Whatever the
    reason for the delay in getting a date for the r. 48.11 motion, ultimately it was
    dismissed because it was premature. The appellant moved to restore the action
    to the trial list without having brought the promised r. 30.10 motion. Again,
    what was relevant was the appellants ongoing delay in pursuing documents his
    counsel repeatedly had insisted were necessary for the trial of the action.

[23]

I see no error in the motion judges conclusion that the appellants
    delay in pursuing the relevant documents, which was the relevant delay that the
    court needed to consider, was inexcusable and unexplained.

[24]

Finally, the appellant says that the motion judge made palpable and
    overriding errors, which amounted to an error in principle, when she concluded
    that the action was still not ready for trial. In particular, she was
    inappropriately dismissive of the documents provided by Siemens, and she erred in
    suggesting that an accountant was required to interpret the codes set out in
    the Siemens spreadsheet. According to the appellants appeal counsel, a Siemens
    representative could have attended at trial as a witness to explain the
    documents, and the matter could have been set for trial, if not right away,
    then for the next trial sittings.

[25]

I disagree. The motion judges conclusions about the Siemens documents
    and that the appellant still was not ready for trial were fully supported by
    the evidence before her. The appellants motion was to restore the action to
    the trial list for the Brampton trial sittings in January 2019. His factum in
    support of the motion, however, sought to restore the action to the trial list
    for the following sittings, to commence in May 2019. It was obvious that
    additional work was anticipated before the matter would be ready for trial.

[26]

The appellant may well be correct that a Siemens representative could
    have attended at trial to explain the spreadsheets that were produced, and that
    an expert accountant was not required for this purpose. However, the
    appellants counsel suggested to the motion judge that, although he had taken
    no steps to do so in the ten months since he had received the Siemens
    documents, he still might hire a forensic accountant to analyze the records. Furthermore,
    in his letter in May 2018, the appellants counsel requested more documents
    from Pivotal. The real problem with the late-breaking documents is that the
    respondents were prejudiced in their defence of the action. The evidence was
    that documents such as invoices that might explain and support the Siemens
    spreadsheets, and assist in determining what, if any, portions of the invoices
    and payments from Siemens to the respondents were related to placements
    generated by the appellant, were not produced and were likely no longer
    available.

[27]

For these reasons, I am not persuaded that the motion judge erred in any
    material way in her refusal to restore the appellants action to the trial list.
    Accordingly, I would dismiss the appeal, with costs to the respondents in the
    agreed amount of $10,000, inclusive of disbursements and HST.

Released: April 26, 2019 KMvR                                       
    K. van Rensburg J.A.

I agree.  M.L. Benotto J.A.

I agree.  A. Harvison Young J.A.





[1]

At the time, the applicable limitation period was six years
    under the former
Limitations Act
, R.S.O. 1990,
    c. L.15.


