



COURT OF APPEAL FOR ONTARIO

CITATION: Kara v. Arnold, 2014 ONCA 871

DATE: 20141205

DOCKET: C58860

Blair, Pepall and Lauwers JJ.A.

BETWEEN

Shafik Kara, Ireme Kara, Madatali Kara and
    Brothers Collision & Refinishing

Plaintiffs

(Appellants)

and

Roland Arnold
,
Highway Pharmacy
    Inc., Rashid Keshavjee and Gulshan Keshavjee

Defendants

(
Respondent
)

Paul R. Sweeny and Adam J. Huff, for the appellants

Kosta Kalogiros, for the respondent, Roland Arnold

Heard: November 26, 2014

On appeal from the order of Justice Douglas K. Gray of
    the Superior Court of Justice dated April 22, 2014, with reasons reported at
    2014 ONSC 2647.

Blair J.A.:

Background

[1]

The appellant plaintiffs seek to set aside the Status Court order of
    Gray J. dated April 22, 2014, dismissing their action for delay pursuant to rule
    48.14.

[2]

The appellants had sued the respondent Dr. Arnold and others claiming
    medical malpractice, as a result of an over-prescription of medication as part
    of a medical regime established by Dr. Arnold for the appellant, Shafik Kara. 
    The claims of the other appellants, with the exception of Brothers Collision
    & Refinishing, are derivative claims under the
Family Law Act.

[3]

At the time of the Status Court hearing the action was more than 14
    years old.  The facts underpinning the claim had occurred from 1997 to 1999, more
    than 16 years before the hearing.

[4]

Rule 48.14 of the
Rules of Civil Procedure
, R.R.O. 1990, Reg.
    194, provides that if an action is not set down for trial or terminated by
    other means within two years after the first defence is filed, the registrar
    shall serve a status hearing notice advising that the action will be dismissed
    for delay if not set down for trial or otherwise terminated within 90 days. Upon
    receipt of the notice, a party may request that the registrar arrange a status
    hearing, as the appellants did here.  At that hearing, the onus is on the
    plaintiff to show cause why the action should not be dismissed for delay.  The
    hearing judge may make an order dismissing the action if he or she is not
    satisfied the action should proceed.

[5]

The appellants commenced their action in February 2000.  A year later
    the action was dismissed against all defendants other than Dr. Arnold.  In
    April 2002 Dr. Arnold served his statement of defence, and in June 2003 he served
    his affidavit of documents.

[6]

The action proceeded at a somewhat leisurely pace on the part of both
    camps  it meandered, as the hearing judge put it.  Although the appellants
    delivered a draft affidavit of documents in April 2004, they did not deliver a
    sworn version until August 2006.  Dr. Arnold was slow in providing a
    transcribed version of his notes, but finally did so in June 2006.  In 2007 a
    potential witness, one of Mr. Karas treating physicians, died.

[7]

In the meantime, discoveries of Mr. Kara were scheduled and
    re-scheduled, adjourned on consent but most often at the appellants request
    (sometimes on neutral grounds such as illness or counsels conflicting
    engagements).  They finally commenced in December 2006 and were completed in
    December 2010.  The appellants have taken no steps to examine Dr. Arnold for
    discovery and apparently  somewhat surprisingly  do not intend to do so.  The
    last contact received by Dr. Arnolds counsel from the appellants counsel
    prior to the status hearing was in December 2010.  The appellants say they
    spent those more than three years obtaining experts reports, but they took no
    steps to set the action down for trial between the receipt of the status
    hearing notice and the hearing.

Analysis

[8]

The decision of a judge presiding at a status hearing under rule 48.14
    is discretionary and is entitled to considerable deference.  The test is
    two-fold and conjunctive: the plaintiff has the onus of demonstrating both that
    there was an acceptable explanation for the delay and that, if the action were
    allowed to proceed, the defendant would suffer no non-compensable prejudice:
    see
Khan v. Sun Life Assurance Co. of Canada
, 2011 ONCA 650, 1
    C.C.L.I. (5th) 183, at para. 1;
1196158 Ontario Inc. v. 6274013 Canada Ltd.
,
    2012 ONCA 544, 112 O.R. (3d) 67, at para. 32;
Faris v. Eftimovski
,
    2013 ONCA 360, 363 D.L.R. (4th) 111, at para. 32.  The hearing judge applied
    that test and determined that the appellants had not provided an acceptable
    explanation for the delay in proceeding with the action.

[9]

Dismissals for delay involve a careful balance between two competing
    values.  On the one hand, the
Rules of Civil Procedure
need to be
    enforced in a way that ensures timely and efficient justice, in the interests
    of plaintiffs, defendants, and society in general.  On the other hand, society
    in general, and the parties, have an interest in the resolution of disputes on
    their merits and in the availability of flexibility to avoid potentially
    draconian results, by providing the opportunity for parties to offer a
    reasonable explanation for delay when it takes them beyond established
    timelines.

[10]

The
    courts do not take a rigid or purely formalistic and mechanical approach to
    the application of timelines in the
Rules
that would penalize the parties for technical non-compliance and frustrate the
    fundamental goal of resolving disputes on their merits:
1196158 Ontario Inc. v. 6274013 Canada Ltd.
, at
    para. 19.  That said, rule 48.14 was designed to have some teeth, in my view.  As
    Sharpe J.A. noted, in
Marché dAlimentation Denis Thériault Ltée v. Giant
    Tiger Stores Ltd.,
2007 ONCA 695, 87 O.R. (3d) 660, at para. 23:

Rule 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. 
    Before the promulgation of rule 48.14, parties had total control over when
    cases were placed on the trial list.  Rule 48.14 establishes a procedure which
    gives the court a degree of control over the speed at which litigation proceeds
    to a conclusion. . . . In essence the rule provides for a very limited form of
    case management. Garry D. Watson & Craig Perkins,
Holmested and
    Watson: Ontario Civil Procedure
, vol. 4 supplement (Toronto: Carswell,
    1984) [at] 48§15.  The case management regime, for which rule 48.14 was a
    precursor, was introduced in part to reduce unnecessary cost and delay in
    civil litigation: rule 77.02.

[11]

Later,
    in
1196158 Ontario Inc. v. 6274013 Canada Ltd.
, at paras. 39, 41 and
    42, Sharpe J.A. reinforced the importance of the rule for purpose of promoting
    timely justice.  He said:

[The] cases quite properly reflect and reinforce the strong
    public interest in promoting the timely resolution of disputes.  The notion
    that justice delayed is justice denied reaches back to the mists of time . . . .
    For centuries, those working with our legal system have recognized that
    unnecessary delay strikes against its core values and have done everything
    within their power to combat it:
Marché dAlimentation Denis Thériault
    Ltée v. Giant Tiger Stores Ltd.
(2007), 87 O.R. (3d) 660, [2007] O.J. No.
    3872, 20007 ONCA 695, at para. 25, quoting
Blencoe v. British Columbia
    (Human Rights Commission)
, [2000] 2 S.C.R. 307, [2000] S.C.J. No. 43, 2000
    SCC 44, at para. 146.  Excusing significant delay risks undermining public
    confidence in the administration of justice:
Marché,
at para. 32. 
    The timelines the rules impose are relatively generous and there is a heavy
    price to be paid when they are not respected.



The civil justice regime should deliver timely justice to both
    plaintiffs and defendants.  Unless the basic ground rules of litigation 
    including time requirements  are enforced in a principled way, counsel cannot
    provide reliable advice and clients cannot plan their affairs in an orderly
    manner.

If flexibility is permitted to descend into toleration of
    laxness, fairness itself will be frustrated.   [E]ven if there is no actual
    prejudice, allowing stale claims to proceed will often be unfair to the
    litigants.  Disputes are more likely to be resolved fairly if they are resolved
    in a timely fashion and, accordingly, the enforcement of timelines helps
    achieve the ultimate goal of fair resolution of disputes.

[12]

The
    appellants argue that the hearing judge erred by failing to apply the
    contextual approach enunciated by Goudge J.A. in
Scaini v. Prochnicki
,
    2007 ONCA 63, 85 O.R. (3d) 179, at para. 23, and referenced by Sharpe J.A. in
Marché
    dAlimentation,
at para. 20.  They say he did not consider and weigh all
    relevant factors to determine the order that is just in the circumstances of
    the particular case, as called for by that approach.  I disagree.

[13]

In
    my view, little is to be gained by debating whether there is a bright line
    between the contextual approach and the approach enunciated in later
    authorities such as
Faris
and
1196158 Ontario Inc. v. 6274013
    Canada Ltd.
It seems to be evident that, in considering the reasonableness
    of any explanation for the delay in question, a status hearing judge will
    almost invariably engage in a weighing of all relevant factors in order to reach
    a just result.

[14]

Here,
    the judge at the status hearing considered all of the pertinent factors
    relevant to a contextual approach (as in
Scaini
) and the approach
    taken to rule 48.14 dismissals in later cases (
1196158 Ontario Inc.
and
Faris).


I do not see these authorities as inconsistent. 
    While I would not characterize the latter two authorities as representing a
    fundamental change in this Courts approach to delay in the processing of
    civil cases, as the hearing judge did  the courts have been addressing the
    need for timely compliance with the rules in this context for many years  I agree
    that they underline the need for timely compliance, as outlined in the passage
    from
1196158 Ontario Inc.
cited above.

[15]

The
    hearing judge considered the inordinate length of the delay, the explanations
    offered by the appellants for that delay, the contribution of the respondent to
    the delay, the appellants delay in obtaining expert reports (and the lack of
    explanation for that delay), and the issue of prejudice.  He properly took the
    date of delivery of the statement of defence as a starting point for the delay
    that required an explanation. He concluded that the appellants had failed to
    provide a satisfactory or reasonable explanation for a delay of almost 11 years
    (from delivery of Dr. Arnolds statement of defence to the date of the status
    hearing).

[16]

This
    finding was open to him on the record, and I see no basis for interfering with
    it.

[17]

The
    appellants also argue that the trial judge raised the bar too high when he
    stated that the longer the delay, the more cogent the explanation must be.  I
    see this as simply a common sense observation.

[18]

In
    addition, the appellants say that the hearing judge failed to take into account
    the time and expense the parties have devoted to the case and the fact that it
    is ready for trial.  While he did not say specifically that he was dealing with
    those factors, I am satisfied that he was alive to them.  He analysed the
    history of the discovery process and the process of documentary production as
    well as the appellants submissions regarding the preparation of expert
    reports. It is self-evident that these steps involved considerable time and
    expense.  In any event, it is debatable whether the action is, indeed, ready
    for trial.  If that were so, one would have expected the appellants to have
    taken steps to list the action for trial in the period of almost a year that
    elapsed between the receipt of the status hearing notice and the hearing
    itself.

[19]

The
    appeal is accordingly dismissed.  The respondent is entitled to his costs of
    the appeal, fixed in the amount of $10,000, all inclusive, in accordance with
    the agreement of counsel.

Released: R.A.B.  December 5, 2014

R.A.
    Blair J.A.

I
    agree S.E. Pepall J.A.

I
    agree P. Lauwers J.A.


