Courts Protect the Rights of Litigants despite their Counsel’s Conduct
In Baldasio v. City of Toronto, 2024 ONSC 5391, the defendant, City of Toronto brought a motion for dismissing the action for delay.
Background
This action arose from a slip and fall incident on January 13, 2014. On December 29, 2015, the plaintiff commenced an action against the City of Toronto and the TTC. The City served its Statement of Defence and crossclaim on February 24, 2016. In its Statement of Defence, the City plead that it retained Nu-Con Contracting to perform snow and ice removal services.
On July 19, 2019, the plaintiff brought a motion to amend the Statement of Claim and added Nu-Con as a defendant to the action. Associate Justice Graham issued an order on July 19, 2019, to add Nu-Con into the action and dismissed the action against the co-defendant, TTC.
Nu-Con was noted in default on April 26, 2023.
Analysis
Rule 24 of the Rules of Civil Procedure allows a party served with a Statement of Claim in an action to may seek an order from the Court to dismiss the action without a determination of the merits, if the plaintiff has not taken steps to move the proceeding towards trial in a reasonable length of time.
Under Rule 24.01(1), an action may be dismissed for delay if the plaintiff has failed:
(a) to serve the Statement of Claim on all the defendants within the prescribed time;
(b) to have noted in default any defendant who has failed to deliver a statement of defence, within thirty days after the default; or
(c) to set the action down for trial within six months after the close of pleadings.
(d) Revoked: R.R.O. 1990. Reg. 194, r. 24.01 (2).
(e) to move for leave to restore to a trial list an action that has been struck off the trial list, within thirty days after the action was struck off[1].
During the motion, both parties argued that Rule 24.01(1)(b) and/or (c) were applicable. Notably, neither party made oral submissions relating to the specific date when the pleadings closed for the purposes of Rule 24.01(1)(1)(c), or the specific date that was 30 days after Nu-Con’s default for the purposes of Rule 24.01(1)(b).
During the motion, both parties indicated that the pleadings closed when Nu-Con was noted in default, which occurred on April 26, 2023. Interestingly, the City’s notice of motion was dated June 21, 2023, less than 6 months from the close of pleadings.
The Order of Associate Justice Graham dated July 19, 2019, required the amended Statement of Claim naming Nu-Con into the action, to be served with 90 days, which expired on October 19, 2019. Assuming that Nu-Con was served by October 19, 2019, Associate Justice McAfee found that Nu-Con was not noted in default within 30 days of after the default within the meaning of Rule 24.01(1)(b).
The City argued that the plaintiff’s delay was inexcusable and gave rise to a substantial risk that a fair trial will not be possible because of the delay. The plaintiff argued that the delay was not inordinate and would not cause a substantial risk that a fair trial would be possible.
In determining this motion, the Court looked to Rule 1.04(1), which states:
1.04(1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits[2].
Associate Justice McAfee relied on the H.B. Fuller Company v. Rogers, 2015 ONCA 173, with respects to setting aside a dismissal order. In H.B. Fuller, Justice Weiler stated that the court’s preference for deciding matter on their merits is all the more pronounced where delay results from an error committed by counsel. The court should be concerned primarily with the rights of litigants, not with the conduct of their counsel. The law will not ordinarily allow an innocent client to suffer the irrevocable loss of the right to proceed by reason of the inadvertence of his or her solicitor[3].
The case at bar contained four separate delays where the action was not moving from a range of 10 months to over 2 years. The delay from September 12, 2018, to July 19, 2019, was the period of time where the plaintiff brought a motion to add Nu-Con as a defendant. The delay from October 19, 2019, to August 24, 2020, was the period of time where the plaintiff’s first lawyer was winding down his practice and transferred the file to another law firm.
The plaintiff argued that many of the delays were caused by the inadvertence of the first two lawyers representing the plaintiff. The plaintiff provided a sworn affidavit deposing she remained in contact with her first two lawyers between 2015 and 2022 and believed that her lawyers were continuing to work diligently on her matter. The plaintiff never instructed her prior counsel to delay the action and intended to continue with her claim.
When the plaintiff’s current lawyer took over the file in September 2022, he had a telephone call with the City’s lawyer on September 29, 2022. Nu-Con was subsequently noted in default and dates for examinations for discovery were being proposed. On May 9, 2023, the City requested a status hearing with the court and to implement a timetable. The plaintiff’s current lawyer agreed to a timetable. The City then advised that they intended to bring a motion to dismiss the action for delay.
Ultimately, the court found that the plaintiff’s delay was not inexcusable given the circumstances of this matter. The plaintiff always intended to proceed with this action and did not cause any delay herself. The action’s delay was attributed to plaintiff’s counsel bringing a motion to add an additional party and by the plaintiff’s first lawyer transferring the file while he was winding down his practice.
The City argued there was actual prejudice as many of the City’s employees involved in the snow and ice removal operations have now retired or left the City. However, the Court did not find any evidence that any former City employee cannot be located, is unable to give evidence or that there is no other appropriate person who could provide evidence on the matters at issue.
Take Away
When extensive delays occur, the court may still grant a plaintiff leniency when the delay is not caused by their own conduct.
An effective strategy to help promote timely resolution of actions is to utilize case conferences under Rule 50.13 of the Rules of Civil Procedure to obtain timetables to help an action move steadily throughout the litigation process.
[1] R.R.O. 1990. Reg. 194, r. 24.01.
[2] R.R.O. 1990, Reg. 194, r. 1.04 (1).
[3] H.B. Fuller Company v. Rogers, 2015 ONCA 173 at para 27.