



COURT OF APPEAL FOR ONTARIO

CITATION: Farmer v. 145 King Street West, 2018 ONCA 525

DATE: 20180608

DOCKET: C64557

MacPherson, LaForme and Roberts JJ.A.

BETWEEN

Colleen Farmer

Plaintiff (Appellant)

and

145 King Street West and 2748355 Canada Inc. and
    John MacPherson

Defendants (Respondents)

and

Paragon Protection Ltd. carrying on business as
    Paragon Security

Third Party (Respondent)

Antal Bakaity, for the appellant

Thomas Durcan, for the respondents, 145 King Street West
    and 2748355 Canada Inc.

Jennifer A. Reid, for the respondent, John MacPherson

Heard: June 6, 2018

On appeal from the
    order of Justice Jane E. Ferguson of the Superior Court of Justice, dated October
    12, 2017.

REASONS FOR DECISION

[1]

The appellant, Colleen Farmer, appeals from the order of Ferguson J. of
    the Superior Court of Justice dismissing her action against the respondents,
    145 King Street West (145), 2748355 Canada Inc. (274) and John MacPherson.

[2]

Since its inception in 2011, the case has been a combined action arising
    out of two separate events in 2009  an alleged slip and fall accident on the
    premises of 145 and a motor vehicle accident involving MacPherson.

[3]

The action has had a protracted history that at one time led to the
    appellants former counsel notifying Law Pro. After various procedural issues
    over many years, Master Brott issued an order on October 9, 2015 that,
inter
    alia
, imposed a timetable on the parties. The timetable provided:

·

Pleadings close by October 30, 2015;

·

Examinations for discovery be completed by May 27, 2016;

·

Answers to undertakings be completed by August 26, 2016;

·

Motions re undertakings and refusals be completed by October 28,
    2016;

·

Mediation be completed by December 30, 2016; and

·

The actions be set down for trial by October 19, 2016.

[4]

There was non-compliance with the timetable. In November 2016, the
    respondents decided to bring a motion to dismiss the action for delay. In
    December 2016, the appellant initiated a motion to amend the timetable. The
    motions were heard together on October 4, 2017.

[5]

The motion judge addressed the respondents delay motion. She said:

[26]    No discoveries have taken place, despite a timetable
    requiring them to be completed by May 27, 2016.

[27]    No mediation has taken place, despite a timetable
    requiring it to be completed by December 30, 2016.

[28]    The action has not been set down for trial despite the
    fact that pleadings closed on October 22, 2015, and the plaintiff was required
    to set it down by October 19, 2016 in accordance with the court order.

[6]

The motion judge then considered the appellants explanation for the
    delay. She said:

[32]    A key factor is whether the plaintiff has provided a
    reasonable and sufficient explanation of the litigation delay. The plaintiff
    has provided
no
explanation. She relies on two deficient affidavits
    from a law clerk. The causes of action are both from 2009, roughly eight years
    ago.



[34]    The plaintiff has not provided any evidence that her
    actions were inadvertent in not following the agreed upon timetable which was
    agreed upon to avoid a show cause hearing ordered by Master Brott. Her lawyer
    at the hearing of this motion said there had been inadvertence, but provided no
    real and plausible explanation.

[35]    In this case the plaintiff has moved to re-work the
    entire timetable. She has missed all steps. She has not moved promptly.



[39]    In sum, the plaintiff has adduced insufficient evidence
    to rebut the presumption of prejudice. There is a substantial risk that there
    cannot be a fair trial.

[40]    The length of delay both pre and post the timetable
    order is inordinate. The defendants motion to dismiss the action for delay is
    granted. [Emphasis in original.]

[7]

The appellant appeals the motion judges analysis and disposition on two
    grounds.

[8]

First, the appellant contends that the motion judge erred by failing to
    address first her motion to dispense with mediation.

[9]

We disagree. It is not clear from the record that the appellant ever
    made such a motion. In any event, even if it were made and were before the
    court, the motion judge was entitled to focus on the respondents broader motion
    which also involved consideration of the mediation step in the litigation.

[10]

Second,
    the appellant submits that the motion judge erred by reviewing the entirety of
    the case as opposed to examining the narrow circumstances of the events subsequent
    to the imposition of the timetable.

[11]

We
    do not accept the submission. The motion judge was obliged to describe the
    entire background of the case to put the parties motions into their proper
    context. However, she clearly focussed on the imposition of the timetable in
    2015. Indeed, she described it as a lifeline that the appellant had failed to
    grasp.

[12]

It
    was open to the motion judge on this record to conclude that the appellants
    delay was inordinate and inexcusable and that she failed to rebut the
    presumption of prejudice to the respondents. This gave rise to a substantial
    risk that a fair trial of the issues in litigation would not be possible
    because of the delay: see
Langenecker v. Sauvé
, 2011 ONCA 903, at
    paras. 6-7. The motion judges findings are entitled to deference. We see no
    error that would permit appellate intervention.

[13]

The
    appeal is dismissed. The respondents are entitled to their costs of the appeal
    fixed at $7,400 for 145 and 274 and $2,500 for MacPherson, inclusive of
    disbursements and HST.

J.C. MacPherson J.A.

H.S. LaForme J.A.

L.B. Roberts J.A.


