Fridays With Rogers Partners

At our muffin meeting this morning, Ankita Abraham discussed a decision in which the Court of Appeal emphasized the requirement for plaintiffs to exercise reasonable diligence in identifying potential defendants.

In Rumsam v. Pakes, 2019 ONCA 748, the plaintiff had a wrist injury.  She sued a doctor and a clinic for failing to advise her that a follow-up x-ray and a follow-up consultation were required.

On August 29, 2013, the defendants advised the plaintiff that a doctor other than the doctor who was sued was the proper defendant.

At a discovery on August 7, 2014, an undertaking was given to identify the potentially liable doctor. This undertaking was answered on February 17, 2016.

On January 18, 2017, the plaintiff moved to add the new doctor as a defendant. The motion was successful.

On appeal, the Court of Appeal stated that, by August 29, 2013 at the latest, the plaintiff was required to exercise reasonable diligence to identify the correct doctor.

The Court of Appeal held that the plaintiff failed to exercise reasonable diligence as no steps were taken for at least one year. As a result, the Court of Appeal held that the correct doctor could not be named as a defendant.

Matthew Umbrio addressed a decision wherein the court refused to permit the plaintiffs to set aside a registrar’s dismissal order.

In Sokoloff v. Bateriwala, 2019 ONSC 5442, the plaintiff’s commenced an action in April 2013. They did almost nothing to advance the action prior to the five year deadline to set the action down for trial. An affidavit of documents had not been served and discoveries had not been arranged.

Master Jolley held that there was no reasonable explanation for the delay. Further, the dismissal was not caused by inadvertence. In addition, the plaintiffs did not move promptly to set aside the dismissal order. Lastly, the plaintiffs did not rebut the presumption of prejudice.

Master Jolley noted that she had to balance the preference to have actions determined on their merits versus the promotion of timely resolution of disputes and the finality of litigation.

Based on the history of the litigation, Master Jolley held that the action had to remain dismissed.