



COURT OF APPEAL FOR ONTARIO

CITATION: Grillo Barristers P.C. v. Kagan Law Firm P.C., 2022
    ONCA 303

DATE: 20220413

DOCKET: C69385

van Rensburg, Nordheimer and Harvison Young JJ.A.

BETWEEN

Grillo Barristers P.C.

Plaintiff/Defendant by Counterclaim
Respondent (Appellant)

and

Kagan Law Firm P.C., Daria Kagan and Natasha Baksh

Defendants/Plaintiffs by Counterclaim
Appellants (Respondents)

Gregory Sidlofsky and Peter Neufeld, for the appellant

Brendan F. Morrison and Samantha Hale, for the
    respondents

Heard: March 11, 2022 by video conference

On appeal from the order of Justice Andrew Pinto of the Superior
    Court of Justice, dated March 31, 2021, with reasons reported at 2021 ONSC 2317,
    allowing an appeal from a decision of Associate Judge Jay Josefo, dated
    September 18, 2019, with reasons reported at 2019 ONSC 5380.

REASONS FOR DECISION

[1]

Following the appellants submissions, the court dismissed the appeal
    for reasons to follow. These are those reasons.

[2]

The respondents Ms. Kagan and Ms. Baksh worked at the appellant law firm
    between 2012 and 2013. The appellant alleges that, after Ms. Kagan resigned
    from the law firm, the respondents wrongfully solicited its clients. The
    appellant commenced this action in 2013. After the registrar dismissed the
    action for delay on February 22, 2018, the appellant successfully moved before Associate
    Judge Josefo to set aside the dismissal and reinstate its action.

[3]

The respondents successfully appealed the associate judges order to the
    Superior Court, and the appellant appeals to this court.

[4]

The appellant raises two principal and related grounds of appeal.

[5]

The heart of the appeal is the argument that the motion judge erred in
    setting aside the associate judges order to reinstate the action by
    interpreting the applicable factors from
Reid v. Dow Corning Corp.
(2002), 48 C.P.C. (5th) 93 (Ont. S.C.), for reinstating an action dismissed for
    delay rigidly, rather than considering each factor as part of an overall
    contextual approach intended to take into account the courts preference that
    actions be determined on their merits.

[6]

We disagree. The motion judge correctly found that, while the associate
    judge cited the
Reid
test, his approach to its interpretation
    significantly distorted the test itself. The motion judge emphasized that the
    periods of delay must not be treated in isolation from another, but rather as a
    whole. The associate judge erred in failing to take this approach.

[7]

The argument that the motion judge erred in failing to apply the test
    flexibly as
Reid
requires is misplaced; flexibility lies not in the
    application to particular periods of delay but rather with respect to a
    consideration of the entire delay. Here, the delay was well over 4 years and
    the action was nowhere close to being ready for trial. The associate judge
    acknowledged that the appellant had dithered.

[8]

It is clear from the reasons that the motion judge was very much alive
    to the deference owed to the exercise of discretion according to the correct
    legal principles. Nevertheless, he went on to identify additional errors of
    both law and fact.

[9]

He found that, while the associate judge cited the correct test, he
    erred in the approach he took to it which resulted in the distortion of the
    test itself. Namely, it was only when the litigation was not advancing at all
    that the associate judge considered there to be litigation delay. This was a
    central legal error, and sufficient in itself to set aside the associate judges
    decision. The periods of delay are to be considered as a whole, and not in
    isolation from one another.

[10]

Moreover,
    and as the motion judge points out, the associate judge erred by focussing not
    on the explanation for the delay, but on the length of the delays. For that reason,
    the associate judge the first two and a half years of delay even though almost
    an entire year of that delay went unexplained. Similarly, the associate judge
    found that an additional two and a quarter years of delay was not
    unforgiveable. Consequently, the associate judge erred in law by asking
    whether the delay was forgivable rather than whether the delay was sufficiently
    explained. He did so in the face of considerable evidence that the appellants
    delay was egregious, including:

·

The 13-month period between the commencement of the action and
    the appellants first reply;

·

The associate judges finding that the appellant became a
    sojourner before returning to being a litigant;

·

The associate judges finding that the appellant stalled the
    process with his own lawyers;

·

The associate judges finding that the appellant slumbered for
    two and a quarter years;

·

The appellant did not move this action beyond the pleadings stage
    in five years; and

·

The appellant served its affidavit of document 14 months after
    the five-year administrative dismissal.

[11]

The
    appellant also argues that the motion judge erred in failing to defer to the
    discretionary findings made by the associate judge, and in substituting his own
    findings and exercise of discretion for that of the associate judge without
    appropriate grounds to do so. We see no merit in either ground. The motion
    judge was not, as the appellant argues, reweighing the evidence or undermining
    the associate judges findings of fact. In the course of his careful and
    exhaustive reasons, the motion judge appropriately applied the Superior Courts
    appellate jurisdiction.

[12]

Nor
    did the motion judge err in failing to defer to the associate judges discretionary
    findings.  It is clear and explicit in his reasons that he was alive to the
    deference owed in the absence of palpable and overriding error. He made
    detailed findings on each point which are well supported by the record before
    him.

[13]

The
    appeal is dismissed. The respondents are entitled to costs at the agreed upon
    sum of $22,500, inclusive of disbursements and H.S.T.

K. van Rensburg J.A.

I.V.B. Nordheimer
    J.A.

A. Harvison Young
    J.A.


