Fridays with Rogers Partners

At our weekly meeting, Athina Ionita discussed the recent decision of Master Robinson in Maier v. Cedarbuilt Project Management Ltd., 2021 ONSC 2894, regarding a motion brought by the plaintiff for an extension of the deadline to set the matter down for trial.

Introduction

The plaintiff moved for a status hearing pursuant to Rule 48.14(5), seeking an extension deadline of the deadline to set the matter down for trial, and a timetable for remaining interlocutory steps.

The motion arose in the context of the plaintiff’s action for damages from his contractor, its principals, and various subcontractors and material suppliers as a result of issues in the construction of a custom home. The work that was the subject of the litigation had begun over a decade prior. The plaintiff’s motion was only opposed by one defendant, who filed no responding materials but argued that the action should instead be dismissed for delay.

The Master ultimately determined that the action should not be dismissed for delay, and granted the plaintiff’s motion. A new set down deadline and a timetable for remaining steps was fixed.

Evidentiary issue

Before turning to the test to be met on a status hearing, the Master considered the opposing defendant’s main challenge to the motion, being the lack of knowledge of the plaintiff’s sole affiant, who was an articling student. The opposing defendant argued that the Master should not rely on anything stated by the student, because he had no personal knowledge of the action. The affiant was familiar with the file only to the extent of his involvement in this motion.

The Master ultimately accepted the challenged affidavit, despite its shortcomings. The Master agreed that nothing in the articling student’s affidavit supports any personal knowledge of events, and that the affiant no had past or current involvement in the file beyond this motion. Further, some of the student’s evidence constituted double hearsay, which does not comply with the hearsay exception in Rule 39.01(4).

While the plaintiff’s own evidence would have been preferable, the articling student’s affidavit was the only available evidence before the Master. Neither the opposing defendant nor any other party had put forward evidence with a contrary narrative or contesting the affidavit’s account of events.

Further, the student’s statements are often corroborated by correspondence, which in this case was enough to confirm the affidavit’s reliability.  

Test to meet on a status hearing

Having dealt with the evidentiary issue, the Master turned to the test on a status hearing. The test requires the plaintiff to demonstrate both an acceptable explanation for delay in prosecuting the action and, if the action is allowed to proceed, that the defendants will suffer no non-compensable prejudice.

Acceptable explanation for the delay

The Master found that the plaintiff’s delay in this case was not without explanation, and was acceptable. Although progress in the litigation had been slow, and at times had been slower than it ought reasonably to have been, the litigation had moved forward in a generally consistent manner since it began, and the action had not been ignored by the plaintiff.

Further, many periods of delay were caused by accommodating requests made by the defendants, such as indulgences in their statements of defence and scheduling a pre-examination property inspection.

Nothing in the record suggested that the plaintiff intended to abandon the action. On the contrary, the evidence supported the plaintiff intending to prosecute the claim. For these reasons, the Master concluded that the plaintiff had sufficiently explained the litigation delay.

No prejudice to the defendants caused by any delay

No responding evidence was filed by the opposing defendant, or any other defendant or third party, so there was no evidence of actual prejudice.

Further, the Master found that the plaintiff had rebutted the presumption of prejudice. There were several reasons for this, including:

• The affidavits of documents and productions had been exchanged, and there was no evidence of any unavailable documents;
• The defendants and experts had inspected the property;
• Although construction occurred more than a decade ago, and witness memories do fade over time, the Master accepted that much of the plaintiff’s argument on the defective work would turn on documents and expert opinion evidence.

Conclusion

In conclusion, the Master found that the plaintiff’s affidavit evidence was acceptable, that the plaintiff’s delay was acceptable and not without reason, and that there was no prejudice to the defendants by any delay.

The Master accordingly allowed the action to move forward, and set a timetable.