Executive Summary: Key Legal and Evidentiary Issues

• The central issue concerns whether the plaintiff’s delay in advancing the litigation justifies dismissal of the action or restoration to the trial list.

• Both parties’ counsels contributed to the litigation delay, with significant responsibility attributed to the defendant’s former counsel.

• The defendant argued that the delay caused prejudice, including faded memories and unavailable records, but failed to provide evidence of actual prejudice.

• The plaintiff rebutted the presumption of prejudice by demonstrating ongoing intent to proceed and preservation of relevant evidence.

• The court considered whether the plaintiff should be permitted to examine the defendant for discovery, ultimately denying this to avoid further delay.

• Costs for the motion were awarded to the plaintiff on a partial indemnity scale, with further submissions on costs permitted if settlement offers impact the scale.

Facts of the case

The dispute arises from a motor vehicle collision on May 31, 2006, in which the plaintiff, Gordon Ainsley, suffered a catastrophic brain injury. Following the accident, he was declared catastrophically impaired and required ongoing care. Initially, the insurer, Allstate Insurance Company of Canada, provided attendant care and rehabilitation services, but later terminated these benefits after an occupational therapist determined they were no longer necessary. The plaintiff, unable to manage his own affairs, retained counsel in 2013 and sought mediation through the Financial Services Commission of Ontario (FSCO) in 2015, but the mediation did not resolve the issues.

Procedural history and litigation delays

A Statement of Claim was filed in 2016, seeking payment for attendant care benefits, non-earner benefits, rehabilitation services, costs of examinations, and damages for mental distress and bad faith. The defendant responded with a Statement of Defence in late 2016. The litigation was marked by significant delays, including incomplete examinations for discovery, repeated failures by the defendant to serve a sworn affidavit of documents despite multiple court orders, and changes in legal representation for both parties. The action was set down for trial in January 2023, but was later struck from the trial list to allow the plaintiff to serve additional expert reports.

Arguments of the parties

Allstate sought to dismiss the action for delay, arguing that the plaintiff’s inaction was inordinate, inexcusable, and prejudicial, risking an unfair trial due to faded memories and potentially lost evidence. The defendant also raised limitation defences and challenged the merits of the plaintiff’s claims, particularly the revised claim for retroactive attendant care at an increased rate. The plaintiff countered that the delays were primarily caused by the parties’ former counsels, not by himself, and that the defendant had failed to demonstrate actual prejudice. He also argued that there was an agreement to strike the matter from the trial list to allow for expert reports, and that all necessary reports had now been produced.

Relevant legal principles and policy terms

The court considered Rule 24.01(1)(e) of the Rules of Civil Procedure, which allows for dismissal for delay, and Rule 48.11, which permits restoration to the trial list. The test for dismissal involves assessing whether the delay is inordinate, inexcusable, and prejudicial, with a presumption of prejudice arising from inordinate delay. The plaintiff must rebut this presumption to avoid dismissal. For restoration, the plaintiff must provide a reasonable explanation for the delay and show that the defendant would not suffer non-compensable prejudice. The court also noted that the conduct of both parties is relevant in assessing delay and prejudice.

Analysis and outcome

Justice Wilkinson found that while there had been inordinate delay, responsibility was shared, with the defendant’s former counsel being a significant cause. The delay was excusable, particularly given the plaintiff’s catastrophic impairment and reliance on counsel. The plaintiff acted promptly to restore the action after it was struck from the trial list, distinguishing the case from others where plaintiffs had been inactive for extended periods. The court found no evidence of actual prejudice to the defendant, as relevant records were available and the defendant could obtain its own expert reports. The plaintiff’s claims had not changed in substance since the Statement of Claim, and any issues regarding evidence could be addressed at trial.

Ruling and overall outcome

The court granted the plaintiff’s motion to restore the action to the trial list and dismissed the defendant’s motion to dismiss for delay. The plaintiff’s request to examine the defendant for discovery was denied to prevent further delay. Costs for the motion were awarded to the plaintiff on a partial indemnity scale, set at $7,500 plus HST, with provision for further submissions if settlement offers affected the scale. The parties were directed to attend assignment court to set further pre-trial and trial dates. The plaintiff was the successful party on the motion, with costs awarded in his favor in the amount of $8,475. If additional monetary awards or costs are determined, they will be subject to further submissions and court directions.