H.B. Fuller Company v. Rogers (Rogers Law Office),

• Jurisdiction: Ontario
• Judge: Weiler, Epstein and Brown, JJ.A.
• Neutral Citation: 2015 ONCA 173
• Citation: (2015), 330 O.A.C. 378 (CA),2015 ONCA 173,386 DLR (4th) 262,330 OAC 378,(2015), 330 OAC 378 (CA),386 D.L.R. (4th) 262,330 O.A.C. 378
• Date: 12 February 2015
• Court: Court of Appeal (Ontario)

Fuller Co. v. Rogers (2015), 330 O.A.C. 378 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. MR.023

H.B. Fuller Company and H.B. Fuller Construction Products Inc. (plaintiffs/appellants) v. David Rogers, c.o.b. as Rogers Law Office and Computer Packages Inc. (defendants/ respondent )

(C59444; 2015 ONCA 173)

Indexed As: Fuller (H.B.) Co. et al. v. Rogers et al.

Ontario Court of Appeal

Weiler, Epstein and Brown, JJ.A.

March 16, 2015.

Summary:

On November 8, 2013, a registrar issued a status notice. According to the plaintiffs' solicitor's affidavit, the notice was inexplicably mailed to a post office box that had been vacated by the law firm in 2004 and not to the firm's address for service shown on the statement of claim. On February 24, 2014, the registrar dismissed the action for delay, as it had not been set down for trial or otherwise concluded within the time prescribed by rule 48.14. The plaintiffs' counsel did not receive the order. A motion judge dismissed the plaintiffs' application to have the action reinstated under rule 37.14 of the Rules of Civil Procedure. The plaintiffs appealed.

The Ontario Court of Appeal allowed the appeal and reinstated the action. The motion judge erred: (1) in not giving sufficient weight to the non-receipt of the registrar's status notice and the opportunities the plaintiffs had lost as a result; and (2) in the manner in which he assessed prejudice to the remaining defendant.

Courts - Topic 2536

Registrars and prothonotaries - Jurisdiction - Case management - The plaintiffs' action was dismissed for delay as it had not been set down for trial or otherwise concluded within the time prescribed by rule 48.14 of the Rules of Civil Procedure - A motion judge dismissed the plaintiffs' application to reinstate the action  under rule 37.14 - The plaintiffs appealed - The Ontario Court of Appeal noted that the registrar had issued the status notice on November 8, 2013 - According to the plaintiffs' solicitor's affidavit, the notice was inexplicably mailed to a post office box that had been vacated by the law firm in 2004 and not to the firm's address for service shown on the statement of claim - On February 24, 2014, the registrar dismissed the action - The plaintiffs' solicitor's affidavit stated that he did not receive the order - His affidavit further stated that it was only when he was attempting to settle the action with the first defendant on March 3, 2014, that he was advised that the action had been dismissed for administrative delay - Instead of contacting the second defendant immediately and seeking its consent to set aside the registrar's order, he took the position that the registrar had no jurisdiction to dismiss the action for delay because the status notice had not been served in accordance with the rules - This was an error of law - The failure to properly serve a status notice was an irregularity and did not oust the registrar's jurisdiction to dismiss the action - This error of law by the plaintiffs' solicitors did not excuse their delay - See paragraphs 9 to 12.

Practice - Topic 5360

Dismissal of action - Grounds - General and want of prosecution - Delay - The Ontario Court of Appeal stated that "The factors that guide the court's choice between ending the plaintiff's action before trial and forcing the opposite party to defend the case despite the delay require a judge to resolve the tension between two underlying policies. The first is that civil actions should be decided on their merits. The second is that civil actions should be resolved in a timely and efficient manner in order to maintain public confidence in the administration of justice. ... When reviewing a registrar's dismissal for delay under the former rule 48.14, the weight of authority from this court has leaned towards the first policy consideration. ... The court's preference for deciding matters on their merits is all the more pronounced where delay results from an error committed by counsel." - See paragraphs 25 to 27.

Practice - Topic 5360

Dismissal of action - Grounds - General and want of prosecution - Delay - The plaintiffs' action was dismissed for delay as it had not been set down for trial or otherwise concluded within the time prescribed by rule 48.14 of the Rules of Civil Procedure - A motion judge dismissed the plaintiffs' application to reinstate the action under rule 37.14 - The plaintiffs appealed - The Ontario Court of Appeal noted that the registrar had issued the status notice on November 8, 2013 - According to the plaintiffs' solicitor's affidavit, the notice was inexplicably mailed to a post office box that had been vacated by the law firm in 2004 and not to the firm's address for service shown on the statement of claim - The action was dismissed on February 24, 2014 - The plaintiffs' solicitor's affidavit stated that he did not receive the order - Further, it was only when he was attempting to settle the action with the first defendant on March 3, 2014, that he was advised that the action had been dismissed for administrative delay - The court allowed the appeal and reinstated the action - The motion judge ignored the fact that the plaintiffs had moved to set aside the order reasonably quickly (just over three months) - He also failed to consider that the delay resulted from the plaintiffs' solicitors' inadvertence - More importantly, he erred in not giving sufficient weight to the non-receipt of the registrar's status notice and the opportunities the plaintiffs had lost as a result: motivation to settle the case within the 90 day period after the notice; and alternatively, to request a status hearing to show cause why the action should not be dismissed - Considering all the circumstances, the court held that the plaintiffs had explained the delay in their conduct of the litigation and the delay in moving to set aside the dismissal order was not so great as to yield to CPI's reliance on the security of its position - See paragraphs 30 to 36 and 46.

Practice - Topic 5360

Dismissal of action - Grounds - General and want of prosecution - Delay - The plaintiffs' action was dismissed for delay as it had not been set down for trial or otherwise concluded within the time prescribed by rule 48.14 of the Rules of Civil Procedure - A motion judge dismissed the plaintiffs' application to reinstate the action under rule 37.14 - The plaintiffs appealed - The Ontario Court of Appeal noted that the registrar had issued the status notice on November 8, 2013 - According to the plaintiffs' solicitor's affidavit, the notice was inexplicably mailed to a post office box that had been vacated by the law firm in 2004 and not to the firm's address for service shown on the statement of claim - The action was dismissed on February 24, 2014 - The plaintiffs' solicitor's affidavit stated that he did not receive the order - Further, it was only when he was attempting to settle the action with the first defendant (Rogers) on March 3, 2014, that he was advised that the action had been dismissed for administrative delay - The court allowed the appeal and reinstated the action, holding that the motion judge erred in the manner in which he assessed prejudice to the remaining defendant (CPI) - Upon Rogers' death, CPI filed its statement of defence - Then it did nothing from July 2013 to May 2014 - The motion judge also erred when he did not advert to a significant piece of evidence, namely the plaintiffs' solicitor's affidavit that he was unaware of any prejudice to CPI in setting aside the order - Finally, the motion judge did not link the question of prejudice to whether a fair trial was still possible and made no finding in that regard - Thus, it was necessary to reweigh the evidence respecting prejudice - CPI did not plead specific non-compensable prejudice or the inability to defend the action as a result of Rogers' death - Nothing had occurred between the issuance of the status notice and the motion to set aside the dismissal order (just over three months) that increased the prejudice to CPI - Nor was the delay in moving to set aside the registrar's order once it came to the plaintiffs' attention so great that the principle of finality and CPI's reliance on the security of its position had to prevail - A fair trial was still possible - See paragraphs 37 to 45.

Practice - Topic 5360.1

Dismissal of action - Grounds - General and want of prosecution - Excuse for delay - [See Courts - Topic 2536 ].

Practice - Topic 5362

Dismissal of action - Grounds - General and want of prosecution - Prejudice to defendant - [See third Practice - Topic 5360 ].

Practice - Topic 5362.5

Dismissal of action - Grounds - General and want of prosecution - Balance of interests - [See first Practice - Topic 5360 ].

Practice - Topic 5398

Dismissal of action - Order of dismissal - Appeal or application to set aside - [See first and third Practice - Topic 5360 ].

Cases Noticed:

Finlay v. Van Paassen et al. (2010), 266 O.A.C. 239; 101 O.R.(3d) 390; 2010 ONCA 204, refd to. [para. 12].

1196158 Ontario Inc. v. 6274013 Canada Ltd. et al. (2012), 295 O.A.C. 244; 12 O.R.(3d) 67; 353 D.L.R.(4th) 129; 2012 ONCA 544, refd to. [para. 19].

Penner v. Niagara Regional Police Services Board et al., [2013] 2 S.C.R. 125; 442 N.R. 140; 304 O.A.C. 106; 356 D.L.R.(4th) 595; 2013 SCC 19, refd to. [para. 19].

Habib v. Mucaj et al., [2012] O.A.C. Uned. 742; 31 C.P.C.(7th) 1; 2012 ONCA 880, refd to. [para. 20].

Hamilton (City) v. Svedas Koyonagi Architects Inc. et al. (2010), 271 O.A.C. 205; 104 O.R.(3d) 689; 2010 ONCA 887, refd to. [para. 20].

Reid v. Dow Corning Corp. et al., [2001] O.T.C. 459; 11 C.P.C.(5th) 80 (Sup. Ct. Master), revd. (2002), 48 C.P.C.(5th) 93 (Ont. Div. Ct.), refd to. [para. 21].

Scaini v. Prochnicki et al. (2007), 219 O.A.C. 317; 85 O.R.(3d) 179; 2007 ONCA 63, refd to. [para. 21].

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. 21].

Kara et al. v. Arnold et al. (2014), 328 O.A.C. 382; 2014 ONCA 871, refd to. [para. 21].

Aguas v. Rivard Estate (2011), 282 O.A.C. 39; 107 O.R.(3d) 142; 2011 ONCA 494, refd to. [para. 23].

Faris v. Eftimovski et al. (2013), 306 O.A.C. 264; 353 D.L.R.(4th) 111; 2013 ONCA 360, dist. [para. 24].

Wellwood v. Ontario Provincial Police et al. (2010), 262 O.A.C. 349; 102 O.R.(3d) 555; 2010 ONCA 386, refd to. [para. 28].

MDM Plastics Ltd. v. Vincor International Inc. (2015), 329 O.A.C. 202; 2015 ONCA 28, refd to. [para. 37].

Faklan v. Niewiadomski, [2014] O.A.C. Uned. 619; 2014 ONCA 697, refd to. [para. 43].

O'Dowda v. Halpenny et al., [2015] O.A.C. Uned. 12; 2015 ONCA 22, refd to. [para. 43].

Statutes Noticed:

Rules of Civil Procedure (Ont.), rule 48.14 [para. 1 et seq., Appendix].

Authors and Works Noticed:

Archibald, Todd, Killeen, Gordon, and Morton, James C., Ontario Superior Court Practice 2015 (2014), p. 1422 [para. 35].

Counsel:

Deborah Templer, for the appellants;

Paula Bremner, for the respondent.

This appeal was heard on February 12, 2015, by Weiler, Epstein and Brown, JJ.A., of the Ontario Court of Appeal. Weiler, J.A., delivered the following decision for the court on March 16, 2015.