What made 1993 a memorable year? Justice Howard addressed that question in the opening seven paragraphs of his decision in Meriano v Benoot, 2016 ONSC 4839. Bill Clinton, Sir John Major, Kim Campbell and Jean Chretien all took office. Czechoslovakia separate into the Czech Republic and Slovakia. Prince changed his name to a symbol. There were no Taylor Swift songs on the radio because, as his Honour archly noted, “the talented Ms. Swift was not quite four years of age at the time.”
And on October 23, 1993, Joe Carter of the Toronto Blue Jays hit a three-run home-run in the bottom of the ninth inning of game 6 to defeat the Philadelphia Phillies and win the Jays their second consecutive World Series championship of Major League Baseball.
Why was the Jays win important? Because on that same day, by notice of application, the proceeding at issue was commenced. The plaintiff Mr. Meriano and the defendant Mr. Benoot co-owned all of the shares in a music supply store and Mr. Meriano sought to have Mr. Benoot buy out his interest. The litigation, converted into an action in 1993, became stalled in December 1994, lay dormant for some three years, was briefly revived in the summer of 1997, and then fell silent once more, where it has remained inactive for more than 17 years. During this period of dormancy, Mr. Meriano passed away and his wife continued the action on his behalf as his estate trustee (his wife was also a co-plaintiff). In 2016, the defendants (Mr. Benoot’s wife and the corporation were also defendants) moved to dismiss the action for delay under Rule 24 of the Rules of Civil Procedure.
Examinations for discovery never took place because the plaintiff Mr. Meriano refused to be examined with the defendants present in the room. In 1997, both the plaintiffs and defendants brought motions regarding the status of the action. The plaintiffs, now represented by their second lawyer (who worked at the same firm as their first) proposed to resolve the motions by making various productions and answering their undertakings. This did not occur. The proceeding then lay dormant until the plaintiffs’ current counsel attempted to “resurrect” the proceeding in 2014 (after the death of Mr. Meriano). The plaintiffs current counsel did not have the file. This was because in the interregnum a rogue purporting to be a lawyer (with the Harry Potteresque name of Stafford Quinlan) convinced the plaintiffs to provide him with a $10,000 retainer. Said rogue then absconded with both the file and the retainer in 2007, never to be seen again.
Justice Howard stated that the test on a Rule 24 motion to dismiss the action for delay was as set out by the Court of Appeal in Langenecker v. Sauvé, 2011 ONCA 803:
It should not in any event be exercised without giving the plaintiff an opportunity to remedy his default, unless the court is satisfied either that the default has been intentional and contumelious, or that the inexcusable delay for which the plaintiff or his lawyers have been responsible has been such as to give rise to a substantial risk that a fair trial of the issues in the litigation will not be possible at the earliest date at which, as a result of the delay, the action would come to trial if it were allowed to continue.
As there was no allegation that the plaintiffs’ delay was “intentional and contumelious”, Justice Howard focused on whether there was inordinate, inexcusable delay that substantially puts a fair trial at risk.
The plaintiffs attempted to explain the delay by blaming their lawyers, attesting: “the main reason is that my husband and now myself have been required to retain no less than 11 lawyers to shepherd this matter through the justice system.” However, his Honour noted that the plaintiffs “cannot so easily evade their ultimate responsibility for the lack of progress.” It is the plaintiffs, not their lawyers, who have the responsibility to move the action along. Furthermore, it is not clear how many of these “11 lawyers” actually were retained to assume carriage of the action. For example, Mrs Meriano consulted with an estate solicitor and, in the course of the discussion, the topic of the litigation arose. The estate solicitor, quite properly, advised her that she should retain litigation counsel and provided a referral. Categorizing the estate solicitor as part of the reason for delay was unfair to him and “tarnished” her credibility in the judge’s eyes.
While his Honour found that the plaintiffs offered a sensible explanation for certain, minor parts of the 22-year delay, there was no reasonable, cogent, sensible, or persuasive explanation for the 10-year period of delay from 1997 to 2006-2007.
The plaintiffs stated that the defendants were also complicit in the delay. However, his Honour noted that it was the plaintiffs who bore the burden of advancing the action. The plaintiffs’ argument that the motion for dismissal for delay should have been brought earlier “was drained of its force” when the plaintiffs also argued that the motion was “premature”.
The plaintiffs had not rebutted the presumption of prejudice and, in fact, there was actual evidence of prejudice: the plaintiffs lost most of their financial documentation and Mr. Meriano’s testimony was unavailable due to his passing.
While acknowledging that a dismissal for delay was the “capital punishment” of civil proceedings, Justice Howard dismissed the action for delay to protect the integrity of the civil justice system.
While this case is an extreme example of the “law’s delay” that Shakespeare wrote about in Hamlet, it is an important reminder that litigation should be pursued as diligently and expeditiously as possible.
While in this case the defendants brought a motion to dismiss the action for delay, under rule 48.14 of the Rules of Civil Procedure, actions which have not been set down for trial will be automatically dismissal without notice by the later of 5 years after the commencement of the action and January 1, 2017. This means that, if no steps are taken, every action commenced on or before January 1, 2012 which is not on the trial list will be dismissed for delay on January 1, 2017. I blogged here about how to avoid this rapidly approaching fate.
