This week our focus is on cases discussing various procedural issues that may arise during litigation from dismissals for delay to Plaintiffs being ordered to attend in-person medical examinations.

Dismissal for Delay

Delgado-Zurita v. Toronto (City), 2023 ONSC 35

In Delgado-Zurita v. Toronto (City), the Ontario Superior Court dismissed the Plaintiff’s motion to vary a set aside order and for an extension of time to set the matter down for trial.

The Plaintiff sued the City of Toronto and the TTC for $1 million alleging that she tripped and fell on a maintenance hole cover. She commenced the action on December 15, 2014. The registrar dismissed the action for delay on February 20, 2020 because it had not been set down for trial within five years.

The Plaintiff moved to set aside the registrar’s order. On January 22, 2021, Master 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 and required that the action be set down for trial before December 31, 2021.

The Plaintiff did not complete the required steps. She failed to deliver a sworn affidavit of documents, 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 deadline.

The Plaintiff brought a motion to vary the set aside order and for an extension of time to set the matter down for trial, essentially seeking a second lifeline to continue her action.

The starting point for considering an appeal of a registrar’s order of dismissal was 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.

Since the Plaintiff was seeking a second lifeline, the court applied the Reid test in light of four additional considerations as set out in the Jadid case:

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 depending on the circumstances;

3) The onus is not on the defendant to demonstrate prejudice and prejudice may be inferred by the passage of time; and

4) Since the Plaintiff seeks a second lifeline, there is a heightened level of scrutiny on each factor and consideration of what explanation, if any, is offered for having effectively ignored the first lifeline.

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.

 After considering and weighing all relevant factors, Justice Centa dismissed both the Plaintiff’s motion and the action.

Read the full decision here: https://canlii.ca/t/jtsn1.

Pandemic Not an Excuse for Delay

Mugizi v. Ngo, 2022 ONCA 595

In the Ontario Court of Appeal decision, Mugizi v. Ngo, the Court found that relying on the COVID-19 pandemic as an excuse for delay is insufficient to explain away inaction.

This case involves a 2014 MVA. The action was commenced in 2015. The Plaintiff failed to provide any expert reports over the next 4 years.

The Court decided to strike the action from the trial list in December 2019. Over a year later, no report had been filed. As a result, the Defendants brought a motion to dismiss the action for delay.

The Plaintiff submitted an expert report in March 2021 and brought a motion to restore the matter to the trial list. The Plaintiff argued that the pandemic caused the delay, no deadlines were missed and the motion was brought within 30 days of the dismissal order.

The motions judge heard both motions and dismissed the Plaintiff’s motion to have the action restored and granted the Defendants’ motion to dismiss the action for delay. The motion judge found that the delay brought on by the Plaintiff was inordinate; “The appellant adduced no evidence explaining the delay, beyond a bare reference to the COVID-19 pandemic”.

The decision to restore an action to a trial list is discretionary. The Plaintiff had the burden of explaining the delay in order to satisfy the Court that the Defendants would not be unfairly prejudiced by restoring the action to the trial list.

The ONCA felt the Plaintiff failed to meet this burden. Other than a ‘bare reference’ to COVID-19, he did not produce any evidence to explain the delay and there was no evidence that the defendants had not suffered non-compensable prejudice because of the delay.

The ONCA found no basis to interfere with the decision of the motion judge’s decision. Costs were granted in favour of the Defendants.

Read the full decision here: https://canlii.ca/t/jrh41.

Plaintiffs Ordered to Pay Cancellation Fees

Jerry et. al. v. Black et. al, 2023 ONSC  603

In Jerry v. Black, the Defendants successfully appealed a judge’s dismissal of their motion to be reimbursed for a missed appointment fee charged after one of the Plaintiffs failed to attend a defence neuropsychological assessment on consent.

The Plaintiffs’ position was that they were not liable to pay the missed appointment fee of $1,695 because:

1) The examination was not court-ordered;

2) They had not been advised what the quantum of the fee would be; and

3) They had not agreed in advance to pay the fee, which they felt was unreasonable.

The motions judge held that the court had no jurisdiction to order cancellation fees for a consent defence medical assessment.

The Divisional Court held that the Superior Court of Justice does indeed have jurisdiction to order that the cancellation fee be paid under its broad discretion to order costs, the Courts of Justice Act and the Rules of Civil Procedure. 

The court also found that the fee charged in this case was reasonable based on case law, the nature of the appointment and the three-day notice period for cancellation which was communicated in advance through counsel.

The Plaintiffs were ordered to pay the $1,695 fee plus costs of $8,500 all inclusive for the appeal, the motion for leave to appeal, and the motion below.

Read the full decision here: https://canlii.ca/t/jv4mh.

Plaintiff Ordered to Attend In-Person DMEs

Mierzejewski v. Brook, 2021 ONSC 2295

In Mierzejewski v. Brook, the Defendants successfully brought a motion seeking to compel the Plaintiff to attend a physiatry assessment and neuropsychology defence medical assessments in person. The assessments were to take place at AssessMed, where numerous COVID-19 safety protocols have been put in place.

The Plaintiff argued that her health issues placed her in the “high-risk” category and her trips outside the home should be minimal. She limited her in-person visits with her primary health practitioners unless an in person attendance is necessary.

Dr. Muhlstock, physiatrist, indicated, “A Physiatry assessment CANNOT be done virtually. The physical examination is critical to the assessment.”

Dr. Dowhaniuk, neuropsychologist advised that: “I cannot conduct a neuropsych assessment virtually. Administration of cognitive testing must be done face to face using the required stimulus materials.”

Associate Judge Jolley was satisfied with the evidence put forth by the Defendants and determined that both assessments must be conducted in person:

“I adopt the reasoning in Severin v. Barker 2020 ONSC 7784 which held that requiring a plaintiff to attend an in-person defence medical during the pandemic does not pose an undue hardship on a plaintiff where the examination will be conducted with COVID-19 safety protocols” (at para. 10).

Read the full decision here: https://canlii.ca/t/jdz84.

Fresh Evidence Not So Fresh

Mierzejewski v. Brook, 2021 ONSC 6498

The Plaintiff appealed the decision of Associate Justice Jolley and brought a motion seeking an order to stay the Associate Judge’s order pending the hearing of the appeal and granting leave to admit fresh evidence for the appeal.

Included in the ‘fresh evidence’ were two clinical notes from the Plaintiff’s treating psychiatrist relating to her inability to comply with the order due to psychiatric distress suffered after the decision of the Associate Judge.

The request for a stay was not opposed. The motion to admit fresh evidence was opposed.

The request for a stay was granted, with costs and the motion for leave to deliver fresh evidence for the appeal was dismissed without costs.

The request for leave to admit fresh evidence concerns evidence of Ms. Mierzejewski’s psychiatric distress with accompanying physical symptoms arising after the release of Associate Judge Jolley’s decision.

The test for admission of fresh evidence is set out in the four part test in R v. Palmer:

(1) the evidence should not be admitted if, by due diligence, it could have been adduced at the hearing; (2) the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue; (3) the evidence must be credible in the sense that it is reasonably capable of belief; and

(4) the evidence must be such that if believed it could reasonably, when taken with the other evidence adduced at the hearing trial, be expected to have affected the result. The underlying policy considerations are on the one hand the public interest in the finality to litigation, and, on the other hand, the affront to common sense involved in a Court shutting its eyes to a fact which falsifies the assessment.

The evidence of the psychiatric response to the order could not have been adduced at the hearing and the fresh evidence is credible in the sense it is reasonably capable of being believed.

However, Justice Perell noted that the Plaintiff’s fresh evidence was not relevant in terms of a decisive or potentially decisive issue and when taken with the other evidence adduced at the hearing could not reasonably be expected to have affected the result of Associate Judge Jolley’s decision.

It was felt that the fresh evidence was only temporarily new and at worse, stale evidence or at best, just confirmed evidence of “the genuine concerns that animated Ms. Mierzejewski’s long-standing refusal to attend an in-person and prolonged medical examination” (at para 11).

The evidence about the Plaintiff’s psychiatric response to the decision does not change her evidence that was proffered or could have been proffered with due diligence at the hearing.

Justice Perell determined that the appellate court, would be able to, with or without the “so-called fresh evidence” to do justice. The evidence was not necessary to deal fairly with the issues on the appeal.

Read the full decision here: https://canlii.ca/t/jkw22.

Motion to Strike Jury Notice Dismissed

 Corkett v. Ginn, 2021 ONSC 7434

Throughout the COVID-19 pandemic, the courts have seen a number of motions to strike jury notices. Many have resulted in jury notices being struck. The courts take a number of factors into consideration when determining whether to strike a jury notice including:

1) The length of delay from the event that gave rise to the cause of action to trial.
2) The parties’ readiness for trial.
3) The length of the trial.
4) Previous trial adjournments.
5) The local impact of the pandemic, to assess the likely timing for the resumption of jury trials.
6) Costs to update any expert reports.
7) Prejudice to the parties caused by delay in adjudication.

In the recent decision of Corkett v. Ginn (in Central East Region) Justice Currie dismissed a Plaintiff’s motion to strike a jury notice. Justice Currie declined to strike the jury notice for several reasons including (at para 32):

1) The action had only been commenced in January 2019.
2) An unexplained delay between filing of the trial record and requesting a pre-trial.
3) The deadline to strike the jury notice prior to October 15, 2021 was not met.
4) The matter had never been scheduled for trial.
5) The government announced that all restrictions re: COVID-19 may be removed in March 2022.
6) The Plaintiff had only used 1/3 of her AB med/rehab benefits.
7) The Defendant had exercised his statutory right to proceed with a jury from the outset.

Justice Christie did not find Ms. Corkett to be “a litigant anxious to move the matter forward to trial”.

The Plaintiff failed to met the onus of proving that justice to the parties will be better served by discharging the jury.

This case highlights how the particular circumstances of a case and the current state of the pandemic are of paramount importance when the court renders a decision to strike or maintain a jury notice. The case also reinforces the importance of the evidence filed in support of and in opposition to a motion to strike a jury notice.

Read the full decision here: https://canlii.ca/t/jk9fg.