Fridays With Rogers Partners

This morning, at our weekly firm meeting, Angeline Bellehumeur discussed the court’s decision in Frances v TTC Insurance Company, 2020 ONSC 6495.  Master Wiebe considered a status hearing motion for dismissal of an action for delay pursuant to rule 48.14 of the Rules of Civil Procedure.

This action arises from an incident where the plaintiff, Helen Frances, allegedly was injured on a TTC bus in 2006. In 2008, the TTC initiated a claim against Ms. Frances for damages of $50,000 for fraudulent misrepresentation in her application for accident benefits from the TTC Insurance Company.

In 2010, Ms. Frances then initiated this action against the TTC Defendants for $7 million in damages. The parties agreed that the claim against Ms. Frances by the TTC would be asserted as a counterclaim to Ms. Frances’ action. In this counterclaim, the TTC Defendants increased the damages claimed to $150,000.

The Test

At a status hearing motion under Rule 48.14(6)(7), the plaintiff must show cause why the action should not be dismissed for delay, and is responsible for establishing: “(1) an acceptable explanation for the delay; and (2) the defendants will not suffer-non-compensable prejudice if the action proceeds” (paragraph 36: referring to Faris v Eftimovski, 2013 ONCA 360 at paragraph 32).

Delays and Explanation

Five major instances of delay caused by plaintiff’s counsel were highlighted by the motions master. Plaintiff’s counsel was held to not have given an acceptable explanation for four of the five major instances of delay. His explanations often referred to being preoccupied with trials in other matters and to misunderstanding the availability of defendant’s counsel, explanations which had not been corroborated.

The only explanation for delay that was not challenged by the defendant, and accepted by Master Wiebe, was that plaintiff’s counsel was on extended parental leave at one point due to a complications with his first child’s birth.

A Counterclaim Negates the Delays

The insufficient explanation for the delays were negated by the existence of the counterclaim by the TTC Defendants. Dismissing this claim for delay would leave Ms. Frances exposed to liability on the TTC counterclaim in relation to the same issues that are in her claim and would also leave her without recourse should she succeed.

Master Wiebe relied on Samuels v Mai, 2020 ONCA 408 as a “strong authority” for the proposition that dismissing an action for delay is not in the interest of justice if there is a counterclaim that would litigate the very same issues.

The Court held that the TTC Defendant’s proposal that the counterclaim be dismissed with this action was self-serving and unfair, as it was advanced only to bolster the dismissal of the Frances action.

As plaintiffs by counterclaim, the TTC Defendants were also responsible for moving the counterclaim forward and did not do so. The court also considered that the TTC Defendants were not diligent in moving this action forward, thus contributing to the plaintiff’s delays and the first five timetable orders.

Prejudice

The Court found that the Defendants had significantly contributed to any prejudice. Further, if the passage of time had dimmed the memories of any of the critical witnesses, they could always refer to a range of documentation recorded soon after the incident in 2006.

For example, the witnesses could refresh their memories by referring to an extensive investigation of the incident in 2006, a witness’s Occurrence Report and handwritten statement, a transcript of the Examination under Oath of Ms. Frances, a transcribed oral statement by one of the witnesses, and surveillance and photographs of a TTC bus.

The Court also noted that the defendants consented to five timetable orders over the ten years of this action. This was not found to be consistent with an assertion of prejudice.

Accordingly, Ms. Frances met her onus of showing that the TTC defendants would not suffer non-compensable prejudice due to her actions or inactions if this action continues.

The action was not dismissed. The Master gave the plaintiff “a second chance” by imposing a plan to ensure the action will be set down within the timetable provided.