COURT FILE NO.: CV-07-329255
CITATION: Zamanifar v. Mortezagholi, 2016 ONSC 6978
DATE: 2016/11/10
RE: Yousaf Zamanifar v. Molouk Mortezagholi, Hirad Mehrvar, Soraya Emami also known
as Sheila Emami, Re/Max Realtron Realty Inc. and Scott Mervyn Cook et al.
BEFORE:
Master Graham
APPEARANCES:
HEARD: August 24, 2016
N. Epstein for the plaintiff
C. Kopach for the defendant Cook (moving party)
D. LeDrew for the defendants Emami and Re/Max (moving parties)
REASONS FOR DECISION
(Defendants’ motions to dismiss the action for delay)
[1]
The plaintiff’s claim is for damages arising from his purchase in October, 2005 of a
property at 57 Meadowview Avenue in Markham and deficiencies that he discovered in
basement renovations that were to have been completed prior to the closing that took place in
March, 2006. The moving defendants Emami and Re/Max (“the Re/Max defendants”) were the
plaintiff’s real estate agent and broker who acted on the purchase and the moving defendant
Cook was the plaintiff’s real estate lawyer. The defendant Mortezagholi, the vendor of the
property and the defendant Mehrvar, the contractor who was to have performed the renovations,
have been noted in default.
[2]
The moving defendants now bring this motion to dismiss the action for delay. For the
purpose of this motion, the significant procedural event is that the action was struck from the
trial list on November 17, 2010. Although Master Short made an order on February 3, 2014 that
the action be restored to the trial list and that the pre-trial confirmation form be completed by
March 31, 2014, the order was never formally issued and entered so the action remains struck
from the list. In addition, no completed confirmation form was ever filed.
[3]
The defendants also seek an order under rule 60.12 dismissing the action for the
plaintiff’s failure to comply with Master Short’s order.
[4]
As set out below, the plaintiff attempted to bring a motion to restore the action to the trial
list on May 27, 2016 but that motion did not proceed owing to plaintiff’s counsel’s failure to file
the notice of motion within 10 days of booking the motion. The plaintiff, with the consent of the
defendants’ counsel, filed a motion record at the hearing of the defendants’ motions for an order
restoring the action to the trial list. The defendants acknowledge that if they are not successful
on their motions to dismiss the action for delay, the action should be restored to the trial list.
Conversely, if the action is dismissed for delay, the plaintiff’s motion will be dismissed.
2016 ONSC 6978 (CanLII)
SUPERIOR COURT OF JUSTICE - ONTARIO
-2-
[5]
The detailed chronology of the action is as follows:
March 9, 2007: Statement of claim issued
September 14, 2007: Statement of defence and crossclaim delivered by the Re/Max
defendants
October 18, 2007: Statement of defence and crossclaim delivered by the defendant Cook
June, 2008: The defendants Mortezagholi and Mehrvar noted in default
June, 2008: Counsel for the defendant Cook expressed the intention to move to compel
Mortezagholi and Mehrvar to deliver affidavits of documents and attend to be examined
for discovery despite them having been noted in default. As a result examinations for
discovery scheduled to proceed in July, 2008 were postponed.
September and October 2008 and March 2009: Examinations for discovery were
conducted of all parties. The plaintiff was examined by counsel for the Re/Max
defendants but not by the defendant Cook.
April 21, 2009: Status notice issued
July 8, 2009: The plaintiff delivered the trial record.
September 21, 2009: Plaintiff’s counsel asked defence counsel for their availability for
mandatory mediation and to provide a completed trial certification form. The form
included the following warning, underlined in bold letters: “Be advised that this matter
will be struck off the list, without further notice, if pre-trial and trial dates are not
obtained prior to JUNE 30, 2010.”
October 8, 2009: Counsel for the Re/Max defendants provided a completed trial
certification form along with the names of three proposed mediators.
November 19, 2009: Counsel for the defendant Cook informed the plaintiff that he would
not agree to schedule mediation until the plaintiff answered his undertakings. On
December 9, 2009 counsel for Re/Max stated his agreement with this position.
November 17, 2010: The action was struck from the trial list.
March 7, 2011: Counsel for the defendant Cook requested answers to the plaintiff’s
undertakings.
2016 ONSC 6978 (CanLII)
Chronology of the action
-3-
September 11, 2011: Counsel for the defendant Cook obtained an order requiring the
plaintiff to answer his undertakings by November 7, 2011.
November, 2011: The plaintiff answered his undertakings.
December 12, 2013: Plaintiff’s counsel served a notice of motion for a motion to restore
the action to the trial list.
February 3, 2014: The plaintiff argued a contested motion to restore the action to the trial
list. Master Short ordered that the action be restored to the trial list and also ordered a
timetable for further steps in the action a term of which was that the pre-trial
confirmation form be completed by March 31, 2014.
February 4, 2014: Plaintiff’s counsel circulated a draft order for approval by the
defendants’ counsel.
February 12, 2014: Plaintiff’s counsel circulated a revised form of draft order.
March 5, 2014: Counsel for Re/Max provided comments with respect to the draft order.
March 25, 2014: Plaintiff’s counsel circulated a draft certification form.
April 4, 2014: Counsel for Re/Max provided a completed certification form.
April 10, 2014: Counsel for Cook provided his comments on the certification form.
April 23, 2014: Counsel for the plaintiff apparently sent the trial coordinator an email
message attached to a certification form signed by all three counsel. These documents do
not form part of the plaintiff’s affidavit but rather were provided by plaintiff’s counsel to
the court at the hearing. The evidence in the affidavit filed on behalf of Cook is that the
form was never filed.
July 10, 2014: Mediation was held and failed.
December 3, 2014: Counsel for the plaintiff circulated a new trial certification form.
December 16, 2014: The plaintiff attended to be examined for discovery by counsel for
the defendant Cook.
December 17, 2014: Plaintiff’s counsel sent another copy of the certification form to
counsel for Re/Max only.
May 27, 2015: Plaintiff’s counsel provided some answers to undertakings and questions
taken under advisement.
2016 ONSC 6978 (CanLII)
May 5, 2011: Plaintiff’s counsel informed opposing counsel that he had learned that the
action had been struck from the trial list.
-4-
September 23, 2015: In response to a further motion by Cook to dismiss the action for the
plaintiff’s failure to comply with Master Dash’s order, the plaintiff delivered further
answers to undertakings and consented to an order of Master Wiebe that he pay costs of
the motion.
April 8, 2016: Plaintiff’s counsel booked a motion returnable May 27, 2016 to restore the
action to the trial list.
May 10, 2016: Plaintiff’s counsel served the motion record for the May 27, 2016 motion
to restore the action to the trial list. This date was vacated owing to the failure of
plaintiff’s counsel to file the notice of motion within 10 days of booking it. The
plaintiff’s motion was never re-scheduled.
August 4, 2016: Counsel for the defendant Cook served his motion record for this motion
to dismiss for delay.
August 12, 2016: Counsel for the Re/Max defendants served his motion record for this
motion.
Applicable rules and case law
[6]
The moving defendants bring this motion under rule 24.01(1)(e):
24.01(1) A defendant who is not in default under these rules or an order of the court may
move to have an action dismissed for delay where the plaintiff has failed, . . .
(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.
[7]
The case law with respect to dismissal for delay is as follows:
1. To dismiss an action for delay, the court must be satisfied that the plaintiff’s default
has been intentional and contumelious, or that there has been inordinate and
inexcusable delay for which the plaintiff or his lawyers are responsible resulting in a
substantial risk that a fair trial will not be possible. (Armstrong v. McCall, [2006] O.J.
No. 2055 (C.A.), Langenecker v. Sauve, [2011] O.J. No. 5777 (C.A.), Francis v. Peel
(Regional Municipality) Police, [2015] O.J. No. 5001 (SCJ))
2. A dismissal on the basis of intentional and contumelious delay would be warranted in
cases “in which the delay is caused by the intentional conduct of the plaintiff or his
counsel that demonstrates a disdain or disrespect for the court process.”
(Langenecker, supra, para. 6)
2016 ONSC 6978 (CanLII)
June 9, 2015: Master Dash made an order, on motion by counsel for Cook, compelling
the plaintiff to provide answers to outstanding undertakings, questions taken under
advisement and a question refused.
-5-
4. Any delay in the prosecution of an action requires an explanation. The onus rests
with the plaintiff to show that the delay was not intentional. In the absence of an
explanation from the plaintiff for the delay, it is to be presumed that the delay was
intentional. (Berg v. Robbins, [2009] O.J. No. 6169 (Div. Ct.) at para. 13)
The onus is on the plaintiff to rebut the presumption of prejudice arising from the
unexplained delay by showing that documents have been preserved, and that the
issues in dispute do not require the recollection of witnesses, or that necessary
witnesses are available with detailed recollection of events. (Berg, para. 14)
5. The requirement that the delay be “inexcusable” requires a determination of the
reasons for the delay and an assessment of whether those reasons afford an adequate
explanation for the delay. . . . [E]xplanations that are “reasonable and cogent” or
“sensible and persuasive” will excuse the delay at least to the extent that an order
dismissing the action would be inappropriate.
In assessing the explanations offered, the court will consider not only the credibility
of those explanations and the explanations offered for individual parts of the delay,
but also the overall delay and the effect of the explanations considered as a whole.
(Langenecker, supra at paragraphs 9 and 10)
6. An inordinate delay after the cause of action arose or after the passage of a limitation
period gives rise to a presumption of prejudice in which case the defendant need not
lead actual evidence of prejudice and the action will be dismissed for delay unless the
plaintiff rebuts the presumption. The plaintiff’s onus is to persuade the court with
convincing evidence that there is no substantial risk that a fair trial is not possible.
(Armstrong, supra and Woodheath Developments Ltd. v. Goldman, [2003] O.J. No.
3440)
7. Courts may dismiss actions for delay even when the relevant rules do not mandate it.
A court has inherent jurisdiction to control its own process, which includes the
discretionary power to dismiss an action for delay. The power of a superior court to
dismiss an action for delay is not limited to that conferred by any specific Rules of
Civil Procedure, but also flows from the inherent power of the court to prevent an
abuse of its own process. (Marché D’Alimentation Denis Thériault v. Giant Tiger
Stores Ltd., 2007 ONCA 695 at paragraph 24, Wallace, supra at para. 21)
As stated in Wallace at para. 22 “There comes a time, in short, when enough is
enough, and the civil justice system will no longer tolerate inordinate and
inexplicable delay. A court may then eject the action as an exercise of its inherent
jurisdiction, whether or not the relevant rules expressly mandate it.”
2016 ONSC 6978 (CanLII)
3. The plaintiff is responsible for moving the action along. (Wallace v. Crate’s Marine
Sales Ltd., [2014] O.J. No. 4606 (C.A.) at para. 18)
-6-
60.12 Where a party fails to comply with an interlocutory order, the court may, in
addition to any other sanction provided by these rules,
(a) stay the party’s proceeding;
(b) dismiss the party’s proceeding or strike out the party’s defence; or
© make such other order as is just.
Issues on the motion
[9]
Based on the case law reviewed above, the issues to be addressed by the court on this
motion are:
1. (a) Is the plaintiff or his lawyer responsible for intentional and contumelious delay in
the action?
(b) Is the plaintiff or his lawyer responsible for inordinate and inexcusable delay that
results in a substantial risk that a fair trial of the action will not be possible?
2. Does the plaintiff’s failure to comply with Master Short’s order warrant a dismissal of
the action under rule 60.12?
Is the plaintiff or his lawyer responsible for intentional and contumelious delay in the
action?
[10] The words “intentional and contumelious” mean “intentional and abusive”. The point of
this part of the test is that if a plaintiff’s delay of an action is sufficient to constitute an abuse of
the court’s process, that party should lose its right of access to the court. The Court of Appeal in
Langenecker, supra clearly states that delay caused by intentional conduct of the plaintiff or his
counsel that demonstrates a disdain or disrespect for the court process is sufficient to warrant a
dismissal. As stated in Berg, supra, the plaintiff must discharge his onus to show that the delay
was not intentional and in the absence of any such explanation, it will be presumed that the delay
was intentional.
[11] The length of the delay and the explanation for the delay are factors that the court should
consider in determining both whether the delay is intentional and abusive and whether the delay
is inordinate and inexcusable and has created a substantial risk of an unfair trial.
[12] A review of the chronology set out above reveals that initially, following the issuing of
the statement of claim in March, 2007, the moving defendants both defended the action by
October, 2007. It was not until May, 2008 that examinations for discovery were scheduled to
proceed in July, 2008 and there is no explanation for the delay of 7 months in that regard.
2016 ONSC 6978 (CanLII)
[8]
The defendants also move under rule 60.12 to dismiss the action on the basis that the
plaintiff has failed to comply with the order of Master Short. Rule 60.12 is as follows:
-7-
[13] Approximately 10 weeks later, on September 21, 2009, counsel for the plaintiff contacted
opposing counsel with respect to arranging mandatory mediation and completing the required
trial certification form. On November 19, 2009, counsel for Cook informed the plaintiff that he
would not agree to schedule mediation until the plaintiff answered his undertakings.
Nonetheless, plaintiff’s counsel did nothing before November 17, 2010 when the action was
struck from the trial list, continued to do nothing before March 7, 2011 when counsel for the
defendant Cook reiterated his previous request for answers to the plaintiff’s undertakings and
finally contacted the defendants’ counsel on May 5, 2011 when he learned that the action had
been struck from the trial list. The plaintiff offers no explanation for the delay between
November 19, 2009, and May 5, 2011, a period of approximately 18 months.
[14] Despite plaintiff’s counsel becoming aware in May, 2011 of the action having been
struck from the trial list, the next step in the action was taken by counsel for the defendant Cook,
when he obtained an order on September 11, 2011 requiring the plaintiff to answer his
undertakings. The plaintiff’s evidence is that he answered these undertakings in November,
2011 in accordance with the order but he still took no steps to restore the action to the trial list or
otherwise advance its progress. Plaintiff’s counsel continued to do nothing until November,
2013 when he undertook a review of the file and then served a notice of motion for a motion to
restore the action to the trial list on December 12, 2013.
[15] The delay between May, 2011 and November, 2013 is 2.5 years. The only explanation
offered by the plaintiff for this delay is “my counsel overlooked this file as it fell outside his
diary system”. However, there is no evidence as to what the plaintiff himself was doing during
this period of time and specifically whether he had any contact with his counsel or made any
enquiries as to what was happening with his case. This 2.5 year period is essentially
unexplained.
[16] The motion initiated by plaintiff’s counsel on December 12, 2013 was heard on February
3, 2014 at which time Master Short ordered that the action be restored to the trial list, and set a
timetable for further steps in the action, including for the plaintiff to provide an outline of his
claims, for mediation and for the pre-trial confirmation form to be completed.
[17] Plaintiff’s counsel then circulated a draft order but although opposing counsel provided
comments with respect to the order, it was never finalized and never issued and entered. Also,
despite the fact that Master Short made his order on February 3, 2014 with a deadline of March
31, 2014 to complete the certification form, plaintiff’s counsel did not circulate the form for
completion until March 25, 2014, six days before the deadline. The defendants’ counsel returned
the form with comments on April 4, 2014 and April 10, 2014 respectively. As indicated above,
plaintiff’s counsel apparently sent the completed form to the trial coordinator on April 23, 2014
and asked for a pre-trial date. However, the evidence of the defendant Cook is that this form was
2016 ONSC 6978 (CanLII)
Examinations for discovery subsequently did proceed in September and October, 2008 and in
March, 2009. The plaintiff, having completed examinations of the defendants, set the action
down on July 8, 2009, following the issuing of a status notice but without the necessity of a
status hearing.
-8-
[18] Meanwhile, the parties did attend mediation on July 10, 2014, but failed to resolve the
action. This date was within the July 31, 2014 deadline in Master Short’s order. The next step
taken by plaintiff’s counsel following the mediation was to circulate a revised version of the
certification form on December 3, 2014.
[19] The plaintiff deposes that “because of the mediation conducted in this action,
amendments were made to the forms by my counsel”, but provides no details as to what
amendments were made or how any such amendments related to the mediation. There is no
explanation of what happened to the email and form that plaintiff’s counsel says that he sent to
the court on April 23, 2014 or why plaintiff’s counsel failed to follow up with the court after that
date, particularly considering that he received no reply from the court. Even accepting that
plaintiff’s counsel did send the April 23, 2014 email, it was still incumbent on him to follow up
with the court when he did not receive the requested pre-trial date, or any reply at all. Even
allowing a period from April 23, 2014 to the mediation date of July 10, 2014 for a reply means a
further 5 months of unexplained delay from July to December, 2014.
[20] Despite the fact that the plaintiff deposes in his affidavit that counsel for Cook “refused
to execute” the trial certification form in response to his counsel’s December 3, 2014 letter,
counsel for Cook did respond on December 8, 2014 with correspondence stating that they could
discuss the form at the plaintiff’s discovery on December 16, 2014. That examination for
discovery did take place on that date and on December 17, 2014, plaintiff’s counsel sent a
revised certification form to counsel for Re/Max only. The plaintiff provides no explanation for
why this form was not sent to counsel for Cook.
[21] On April 1, 2015, counsel for Cook filed a motion record for a motion to compel answers
to the plaintiff’s undertakings from the December 16, 2014 examination. On May 27, 2015,
plaintiff’s counsel sent correspondence to counsel for Cook providing answers to 13
undertakings and 2 questions taken under advisement and providing his position with respect to 2
refusals. Shortly after, on June 9, 2015, the defendant Cook obtained an order from Master
Dash, on consent, requiring the plaintiff to answer 3 undertakings, 1 refusal and 2 questions
taken under advisement. The plaintiff apparently did not comply with this order so the defendant
Cook brought another motion returnable September 23, 2015 which was resolved by a consent
order of Master Wiebe ordering payment of costs. There is no explanation from the plaintiff as
to why he did not comply with Master Dash’s order.
[22] The plaintiff provides no evidence as to his counsel’s efforts to file the certification form
in 2015. He simply states that his counsel was advised by the trial office that “the matter needed
the Confirmation Certificate, in order to be restored to the trial list” and further that “my
counsel’s past efforts to have the revised Confirmation Certificate executed had been
unsuccessful”.
2016 ONSC 6978 (CanLII)
never filed and there is no evidence that plaintiff’s counsel followed up with respect to the
scheduling of a pre-trial conference after submitting the form.
[23] Although counsel for Re/Max apparently failed to reply to plaintiff’s counsel’s letter of
December 17, 2014 accompanied by a certification form, plaintiff’s counsel took no further steps
to advance the action in 2015. Not having received a reply from counsel for Re/Max, it was
incumbent on plaintiff’s counsel to follow up with both sets of defence counsel to obtain a
completed certification form so that the matter could proceed to a pre-trial conference and trial.
The fact that there had been a further examination for discovery of the plaintiff conducted by
counsel for Cook was no excuse for counsel not continuing his efforts to file the required forms.
[24] Plaintiff’s counsel did nothing to advance the action between his December 17, 2014
letter and April 8, 2016 when he booked a motion returnable May 27, 2016 to restore the action
to the trial list. This is a period of approximately 16 months. Even allowing two months for
plaintiff’s counsel to expect a response to his December 17, 2014 letter, this amounts to a further
period of unexplained delay of 14 months.
[25] Although plaintiff’s counsel served the motion record on May 10, 2016, the May 27,
2016 date was vacated owing to the failure of plaintiff’s counsel to file the notice of motion
within 10 days of booking it. The next steps in the action were the service by both sets of
moving defendants of their motion records for these motions on August 4, 2016 and August 12,
2016. The plaintiff’s motion was not rescheduled until August 19, 2016 when all counsel agreed
that it could be returnable on the same date as the defendants’ motions to dismiss for delay.
[26] The plaintiff deposes that the motion record filed by his counsel on May 10, 2016 was to
have the matter heard in “to be spoken to” Motion Court. The plaintiff further states that counsel
for the defendants did not cooperate with respect to setting a date for this motion. Without
considering whether this was properly a case for a “to be spoken to” court, I will simply not
consider any further delay subsequent to the booking of the plaintiff’s motion.
[27]
[28]
The unexplained periods of delay described above are as follows:
-
October, 2007 to May, 2008: 7 months
-
November 19, 2009 to May 5, 2011: 18 months
-
May, 2011 to November, 2013: 2.5 years
-
July 10, 2014 to December 3, 2014: 5 months
-
December 17, 2014 to April 8, 2016 (allowing two months for reply to plaintiff’s
counsel’s letter of December 17, 2014): 14 months
Accordingly, the plaintiff has failed to explain 6 years and two months of delay.
[29] The first issue is whether this delay is intentional and abusive. As stated in Langenecker,
supra, the impugned delay can be that of either the plaintiff or his counsel so plaintiff’s counsel’s
neglect of the file is not an explanation that assists the plaintiff. As stated in Berg, supra, in the
absence of an explanation for the delay, it is to be presumed that the delay was intentional.
2016 ONSC 6978 (CanLII)
-9-
- 10 -
[30] A party that forces opposing parties to expend money and effort to defend a lawsuit must
prosecute that action with reasonable diligence or risk losing the right to its day in court. An
unexplained delay of over six years, particularly in the context of the plaintiff’s non-compliance
with Master Short’s previous order setting a deadline for the filing of the required certification
forms, demonstrates sufficient disrespect for the court process to constitute an abuse of that
process. I therefore conclude that the action should be dismissed on the basis of intentional and
contumelious delay.
Is the plaintiff or his lawyer responsible for inordinate and inexcusable delay that results in
a substantial risk that a fair trial of the action will not be possible?
[31] Although I have concluded that this action should be dismissed based on the first part of
the test in Armstrong and Langenecker, supra, I will also apply the second part of the test.
[32] The unexplained delay of over six years is well beyond the threshold of what would
constitute “inordinate delay”, and absent any satisfactory explanation for the delay, it is also
inexcusable. The issue therefore becomes whether this inordinate and inexcusable delay results
in a substantial risk that a fair trial of the action will not be possible. Essentially, the court must
consider whether the delay has resulted in non-compensable prejudice to the defendants.
[33] The delay gives rise to a presumption of prejudice that it is the plaintiff’s onus to rebut
(see Armstrong and Woodheath, supra). To meet this onus, the plaintiff must demonstrate that
documents have been preserved, and that the issues in dispute do not require the recollection of
witnesses, or that necessary witnesses are available with detailed recollection of events (see
Berg, para. 14).
[34] A review of the statement of claim indicates that the issues in dispute include the advice
given to the plaintiff by the Re/Max defendants and his lawyer, the defendant Cook, with respect
to the purchase of the subject property. With respect to the Re/Max defendants, the plaintiff
alleges that he was advised to make and increase his offer for the property and that those
defendants “failed to provide sufficient detail regarding the finishing of the basement” and
“steered the plaintiff away from his known solicitor . . .to the Defendant Solicitor, Scott Mervyn
Cook”. The plaintiff alleges that the defendant Cook “failed to warn [him] that the transaction
was not proceeding in [his] best interests on a number of bases, and the legal problems were ones
which any lawyer would recognize”. He further alleges that Cook was aware that there remained
certain renovations and additions which were uncompleted as of the date of closing. He further
pleads that a meeting involving all of the parties was held on May 15, 2006 but nothing was
agreed on. Finally, there is an allegation that the defendants made negligent misrepresentations.
[35]
The plaintiff’s evidence with respect to lack of prejudice is as follows:
-
Examinations for discovery of the plaintiff have been completed by both sets of
moving defendants and all undertakings have been answered.
2016 ONSC 6978 (CanLII)
There being no explanation for more than six years of delay, the unrebutted presumption is that
this delay was intentional.
-
The plaintiff obtained both a preliminary expert report on damages dated June 29,
2011 and a final report dated February 27, 2014.
-
He makes a bald allegation (paragraph 74 of his affidavit) that “To the best of my
knowledge and belief, any prejudice to the Defendants, which prejudice is
specifically denied, could be compensable to the Defendants.”
[36] This evidence only partly addresses the requirement that documents have been preserved
by stating that all undertakings have been answered. The allegations in the statement of claim
are such that viva voce evidence, and thus the availability and reliability of witnesses, will be
essential to the resolution of the issues in the action. The plaintiff has provided no evidence
whatsoever regarding the availability and reliability of witness. On this basis, the plaintiff has
failed to meet his onus to rebut the presumption of prejudice.
[37] More than 10 years have passed since the closing of the purchase of the subject property
in March, 2006 and by the time this case is reached for trial, this period of time will exceed 11
years. As in Berg, supra, the passage of 11 years since the events giving rise to the action
“presumes prejudice”.
The plaintiff’s failure to provide sufficient evidence to rebut the
presumption of prejudice with respect to the availability of both documents and reliable
witnesses means that there is both inordinate delay and a substantial risk that a fair trial will not
be possible. Accordingly, the action is also dismissed for delay on the basis of inordinate and
inexcusable delay that creates a substantial risk that a fair trial is no longer possible.
[38]
The plaintiff’s motion to restore the action to the trial list is also dismissed.
Does the plaintiff’s failure to comply with Master Short’s order warrant a dismissal of the
action under rule 60.12?
[39] The plaintiff did comply with Master Short’s order to the extent that he did arrange and
participate in mediation within the stipulated deadline. In addition, plaintiff’s counsel did
attempt to comply with the term that he file the required certification form, although not until
shortly after the deadline for that step. Generally, breach of a single order, where there has been
at least partial compliance with that order, would not result in the dismissal of the action and I
would not dismiss this action on that basis. However, as indicated above, the plaintiff’s failure
to comply with the deadline for filing the certification form, or to take prompt action to extend
that deadline after it expired, did contribute to the overall delay in the action and does form part
of the context that warrants the dismissal for delay.
Costs
[40] Following the hearing of the motion, counsel for the moving defendant Cook provided a
cost outline with respect to the costs of the entire action and counsel for the Re/Max defendants
provided an outline for the costs of the motion only. The plaintiff did not provide a costs outline.
I agreed that in the event that I concluded that the action should be dismissed, I would give
plaintiff’s counsel the opportunity to address the costs of the action.
2016 ONSC 6978 (CanLII)
- 11 -
- 12 -
___________________________
MASTER GRAHAM
DATE:
November 10, 2016
2016 ONSC 6978 (CanLII)
[41] If the parties cannot agree on costs, the defendants shall provide written costs
submissions, not to exceed three pages each, within 20 days and the plaintiff shall provide his
written costs submission, not to exceed four pages, within 20 days of receiving the defendants’
submissions.