Faris v. Eftimovski,

• Jurisdiction: Ontario
• Judge: Blair, Rouleau and Tulloch, JJ.A.
• Neutral Citation: 2013 ONCA 360
• Citation: (2013), 306 O.A.C. 264 (CA),2013 ONCA 360,363 DLR (4th) 111,87 ETR (3d) 204,[2013] OJ No 2551 (QL),306 OAC 264,(2013), 306 OAC 264 (CA),363 D.L.R. (4th) 111,[2013] O.J. No 2551 (QL),306 O.A.C. 264
• Date: 21 November 2012
• Court: Court of Appeal (Ontario)

Faris v. Eftimovski (2013), 306 O.A.C. 264 (CA)

MLB headnote and full text

Temp. Cite: [2013] O.A.C. TBEd. JN.002

Robert Faris (plaintiff/appellant) v. Chris Eftimovski, CLE 72330 Limited, The Estate of Wally Magee, Horst Rosner, Carriage South Simcoe Real Estate Services Ltd., Exit Realty (or Exit Realty Advance), Re/Max Rouge River Realty Ltd., Anthony John Laskowsky (first named in these proceedings as Anthony Laskowsky, Jr.) in his own capacity and as Litigation Administrator representing the interest of the Estate of Anthony Edward Laskowsky (first named in these proceedings as Anthony Laskowsky, now deceased) (defendants/respondents)

(C55205; 2013 ONCA 360)

Indexed As: Faris v. Eftimovski et al.

Ontario Court of Appeal

Blair, Rouleau and Tulloch, JJ.A.

June 4, 2013.

Summary:

In 2007, the plaintiff sued for damages arising from two real estate transactions that occurred in 2003 and 2005, both relating to the same property. A status notice was issued on April 5, 2011. The status hearing was ultimately adjourned to February 2, 2012. At the time of the hearing, pleadings had not been finalized, no documentary productions had been exchanged and no examinations for discovery had taken place. Two of the defendants had passed away without being examined for discovery.

The Ontario Superior Court, in a decision reported at [2012] O.T.C. Uned. 1126, dismissed the action for delay. The plaintiff appealed and applied for leave to appeal the costs fixed by the court.

The Ontario Court of Appeal dismissed the appeal and denied leave to appeal the costs order.

Practice - Topic 5360

Dismissal of action - Grounds - General and want of prosecution - Delay - Civil Procedure Rule 24.01 enabled a defendant who had complied with the rules to apply to dismiss an action where the plaintiff had been delinquent in an enumerated manner - Rule 48 provided a number of mechanisms to enable the court to control the pace of litigation, including the registrar's ability to serve a status notice to prompt action by a delinquent plaintiff - After a status notice was served, rule 48.14(3) enabled a party to request a status hearing - Rule 48.14(13) provided that "At the status hearing, the plaintiff shall show cause why the action should not be dismissed for delay ..." - The Ontario Court of Appeal noted that the test to be applied under rules 24.01 and 48.14(13) were distinct from each other - The court reviewed the tests - See paragraphs 23 to 42.

Practice - Topic 5360.1

Dismissal of action - Grounds - General and want of prosecution - Excuse for delay - In 2007, the plaintiff sued for damages arising from two real estate transactions that occurred in 2003 and 2005 - Two of the defendants obtained default judgment against the plaintiff in parallel proceedings - The plaintiff successfully moved to have the judgment set aside - At a status hearing on February 2, 2012, the plaintiff asserted that issues relating to res judicata arose as a result of the default judgment and created procedural hurdles associated with having the judgment set aside - He asserted that he should not be responsible for the associated delay - The Ontario Court of Appeal rejected the argument - The defendants issued their action in February 2007 and obtained default judgment in June 2007 - The plaintiff did not initiate his action until December 12, 2007, and did not defend or otherwise deal with the defendants' action until August 2010 - The default judgment's timing served only to highlight the plaintiff's dilatory conduct - It raised more questions about why the plaintiff felt it necessary to commence his action in the first place - See paragraphs 44 and 46 to 48.

Practice - Topic 5362

Dismissal of action - Grounds - General and want of prosecution - Prejudice to defendant - In 2007, the plaintiff sued for damages arising from two real estate transactions that occurred in 2003 and 2005 - On April 12, 2009 one of the defendants (Laskowsky) died - At a status hearing on February 2, 2012, the plaintiff asserted that Laskowsky's death occurred during a period of indulgence granted to two other defendants in order for them to complete their internal investigations of the allegations made in the claim - He asserted that he should not be held responsible for the prejudice that flowed from the lack of evidence from Laskowsky - The Ontario Court of Appeal rejected the argument - It was noteworthy that Laskowsky had not requested a period of indulgence form the plaintiff - Accordingly, Laskowsky was free to be examined for discovery by the plaintiff between the issuance of the action in December 2007 and Laskowsky's death in April 2009 - It was incumbent on the plaintiff to conduct his action in a proactive manager - It was not unfair to ascribe the prejudice caused by Laskowsky's death to the plaintiff - See paragraphs 45, 46 and 49 to 51.

Practice - Topic 5385

Dismissal of action - Application or motion for dismissal - During or after the status hearing - [See Practice - Topic 5360 ].

Practice - Topic 5385

Dismissal of action - Application or motion for dismissal - During or after the status hearing - In 2007, the plaintiff sued for damages arising from two real estate transactions that occurred in 2003 and 2005 - A status hearing judge dismissed the action for delay - The plaintiff appealed, asserting that the judge erred by referring to and applying the finality principle, set out in Marché d'Alimentation Denis Thériault ltée et al. v. Giant Tiger Stores Ltd. (Ont. C.A.) - The Ontario Court of Appeal rejected the assertion, stating that "As I read her reasons, I do not take the status hearing judge as having applied the finality principle articulated by this court in Marché D'Alimentation Denis Thériault Ltée. Rather, it appears that she was merely paraphrasing this court's pronouncement of the policy rationale that status hearings provide the court with a mechanism to prevent abuse of its processes and dilatory behaviour on the part of plaintiffs. Status hearings serve an important function in ensuring that disputes are resolved efficiently." - See paragraph 52.

Practice - Topic 5398

Dismissal of action - Order of dismissal - Appeal or application to set aside - The Ontario Court of Appeal stated that "At a status hearing, the decision to dismiss an action for delay is discretionary. Accordingly, on appeal, the decision attracts deference but may be set aside if it discloses palpable and overriding errors of fact or is made on the basis of an erroneous legal principle ..." - See paragraph 22.

Cases Noticed:

Savundranayagam v. Sun Life Assurance Co. et al., [2008] O.A.C. Uned. 527; 67 C.C.L.I.(4th) 241 (Div. Ct.), refd to. [para. 11].

Marché d'alimentation Denis Thériault ltée et al. v. Giant Tiger Stores Ltd. (2007), 247 O.A.C. 22; 87 O.R.(3d) 660; 2007 ONCA 695, refd to. [para. 18].

1196158 Ontario Inc. v. 6274013 Canada Ltd. et al. (2012), 295 O.A.C. 244; 12 O.R.(3d) 67; 2012 ONCA 544, refd to. [para. 22].

Bolohan v. Hull, [2012] O.A.C. Uned. 100; 99 C.C.E.L.(3d) 307; 2012 ONCA 121, refd to. [para. 25].

Langenecker v. Sauvé et al. (2011), 286 O.A.C. 268; 2011 ONCA 803, refd to. [para 28].

Khan v. Sun Life Assurance Co. of Canada, [2011] O.A.C. Uned 565; 2011 ONCA 650, refd to. [para. 32].

Wellwood v. Ontario Provincial Police et al. (2010), 262 O.A.C. 349; 102 O.R.(3d) 555; 2010 ONCA 386, refd to. [para. 33].

Allen v. Sir Alfred McAlpine & Sons Ltd., [1968] 2 Q.B. 229 (C.A.), refd to. [para. 37].

Woodheath Developments Ltd. v. Goldman, [2001] O.T.C. 762; 56 O.R.(3d) 658 (Sup. Ct. Master), affd. (2003), 175 O.A.C. 259; 66 O.R.(3d) 731 (Div. Ct.), leave to appeal denied (2004), 44 C.P.C.(5th) 101 (C.A.), refd to. [para. 37].

Armstrong v. McCall et al. (2006), 213 O.A.C. 229; 28 C.P.C.(6th) 12 (C.A.), refd to. [para. 38].

Statutes Noticed:

Civil Procedure Rules (Ont.) - see Rules of Civil Procedure (Ont.).

Rules of Civil Procedure (Ont.), rule 24.01 [para. 27]; rule 48.14(13) [para. 31].

Authors and Works Noticed:

Perell, Paul M., and Morden, John W., The Law of Civil Procedure in Ontario (1st Ed. 2010), p. 418 [para. 36].

Counsel:

Alfred J. Esterbauer and Demetrios Yiokaris, for the appellant;

Kelly A. Charlebois, for the respondent, Re/Max Rouge River Realty Ltd. and agent for Chris Eftimovski and CLE 72330 Limited;

Todd Robinson, for the respondent, Wally Magee.

This appeal and application were heard on November 21, 2012, by Blair, Rouleau and Tulloch, JJ.A., of the Ontario Court of Appeal. Tulloch, J.A., released the following judgment for the court on June 4, 2013.