Fridays with Rogers Partners

January 13, 2023

At our weekly Friday meeting, Katrina Taibi discussed the recent decision of the Ontario Superior Court in Delgado-Zurita v. Toronto (City), 2023 ONSC 35.

Overview:

The plaintiff brought a motion pursuant to Rule 48.14 of the Rules of Civil Procedure to vary a set aside order and for an extension of time to set the matter down for trial.

Procedural History:

On December 15, 2014, the plaintiff sued the City of Toronto and the Toronto Transit Commission (TTC) for $1 million, alleging that she tripped and fell on a maintenance hole cover a year prior.  On February 20, 2020, the registrar dismissed the action for delay because it had not been set down for trial within five years.

On January 22, 2021, Associate Justice Sungunasiri set aside the registrar’s order and restored the action, giving the plaintiff a lifeline.  This order included a mandatory timeline for the remaining steps, including delivering a sworn affidavit of documents, answering undertakings, attending mandatory mediation, and setting the action down for trial before December 31, 2021.

The plaintiff did not complete these steps.  She delivered an unsworn affidavit of documents on January 27, 2021 and despite numerous requests from the defendants, did not provide a sworn affidavit of documents.  The plaintiff only answered one of the twenty-four undertakings from her discovery and did not attend a scheduled mediation on November 1, 2021.  As such, the action could not be set down for trial before the December 31, 2021 deadline.

This was a motion to vary a set aside order and for an extension of time to set the matter down for trial – a second lifeline.

Delay Scheduling this Motion:

In November or December 2021, plaintiff’s counsel scheduled this motion to be heard on February 3, 2022.  However, plaintiff’s counsel did not discuss the motion with the defendants, canvas dates, or deliver a notice of motion to the defendants.  The TTC discovered this motion on January 21, 2022 when they happened to check the court file.  Unsurprisingly, the defendants’ counsel were unavailable on February 3, 2022.

The motion was rescheduled to December 13, 2022.  However, Associate Justice La Horey refused to hear the motion as plaintiff’s counsel had only booked fifteen minutes.  She adjourned the motion sine die and stated that the plaintiff should submit a request form for a long motion.

On December 14, 2022, the parties appeared before Justice Centa to book a date for the third party’s summary judgement motion.  Justice Centa was not inclined to book the summary judgement motion in parallel with this motion to vary the set aside order and extend the timetable. As the parties confirmed that they had been ready to argue the plaintiff’s motion the day before, Justice Centa agreed to hear the plaintiff’s motion on December 21, 2022 to avoid further delay.

Applicable Test – Reid and Jadid:

Where a plaintiff seeks to vary an order that set aside a registrar’s order dismissing an action for delay, the court should consider four criteria, known as the Reid test:

  1. Explanation of the litigation delay;
  2. Inadvertence in missing the deadline;
  3. The motion is brought promptly; and
  4. No prejudice to the defendant.[1]

In Jadid, the court stated that because the plaintiff was seeking a second lifeline, the Reid test would be applied in light of four additional considerations:

  1. Delay from the commencement of the claim to the order setting aside the registrar’s order should be considered and weighed separately from the delay after the set aside order;
  2. No one factor is to be given priority over the others, and the failure to satisfy any one of the criteria may be dispositive;
  3. The onus is not on the defendant to demonstrate prejudice and prejudice may be inferred by the passage of time; and
  4. There is a heightened level of scrutiny on each factor and their explanations.[2]

Application of the Applicable Test:

The Court applied the Reid test and Jadid factors as follows:

  1. Explanation of the litigation delay: The court found that all parties bore some responsibility for the delay prior to the first set aside order.  However, the plaintiff and her counsel were responsible for the delay after the set aside order.  The plaintiff tried to argue that her grandfather’s passing caused her to be unable to attend the mediation.  However, the court did not agree as the plaintiff was able to attend discoveries seven weeks after his death but tried to argue she could not attend the mediation six months after his death.  Further, no medical evidence was provided, and the plaintiff was able to plan a five month vacation to the Dominican Republic, leaving five days after the scheduled mediation.
  2. Inadvertence in missing the deadline: As the plaintiff missed multiple deadlines, the court did not accept that it was due to inadvertence.  Rather, her actions showed indifference to the timetable.
  3. The motion is brought promptly: Plaintiff’s counsel brought the motion a month after the missed set down date.  However, plaintiff’s counsel did not consult the defendants on the motion date or provide a notice or motion.  This is unacceptable, particularly as plaintiff’s counsel was warned about this on a previous motion.  The court gave very little weight to counsel promptly initiating this motion.
  4. No prejudice to the defendant: Delay may be inferred from the passage of time and presumed to be prejudicial to the defendant’s ability to defend the action.  Given that the memories of witnesses will be crucial in this case (time of maintenance and inspections, who attended the inspections, potential deficiencies present at the time, and any rectification work completed), the passage of time compromised the defendants’ right to a fair hearing.

Conclusion:

In deciding this motion, the court noted that it must strike a balance between two principles:

  1. Civil actions should be decided on their merits
  2. Procedural rules can only achieve their goal if they are respected and enforced.

Considering and weighing all relevant factors, Justice Centa dismissed both the plaintiff’s motion and the action.

[1] From Reid v. Dow Corning Corp. (2001), 11 C.P.C. (5th) 90 (Ont. S.C.), rev’d on other grounds (2002), 48 C.P.C. (5th) 93 (Ont. Div. Ct.).

[2] From Jadid v. Toronto Transit Commission, 2016 ONSC 1176.