Kerr v. CIBC World Markets Inc. et al., (2013) 316 O.A.C. 192 (DC)

• Judge: Newbould, J.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: December 10, 2013
• Jurisdiction: Ontario
• Citations: (2013), 316 O.A.C. 192 (DC);2013 ONSC 7685

Kerr v. CIBC World Markets Inc. (2013), 316 O.A.C. 192 (DC)

MLB headnote and full text

Temp. Cite: [2014] O.A.C. TBEd. FE.045

Margaret Grace Kerr (plaintiff/appellant) v. CIBC World Markets Inc., Merrill Lynch Canada Inc., CIBC Wood Gundy Financial Services Inc., Merrill Lynch Insurance Services Inc., Roy Ruppert, Gordon W. Leriche and Transamerica Life Insurance Company of Canada (defendants/respondent)

(153/13; 2013 ONSC 7685)

Indexed As: Kerr v. CIBC World Markets Inc. et al.

Court of Ontario

Superior Court of Justice

Divisional Court

Newbould, J.

December 16, 2013.

Summary:

In 2004, Kerr commenced an action against the defendants, claiming investment losses of $2.5 million. Evans acted for her, but failed to schedule a trial. In 2010, the action was struck from the trial list. Evans scheduled a motion under rule 48.11 for January 2011 to restore the action to the trial list. On learning of Evans' mishandling of the action, Kerr terminated her relationship with Evans and hired Ormston. Ormston failed to take steps on the motion. The defendants moved to dismiss Kerr's motion to restore the action to the trial list.

A Master of the Ontario Superior Court, in a decision reported at [2012] O.T.C. Uned. 3982, denied Kerr's motion and dismissed the action. Kerr appealed and moved to adduce new evidence on the appeal.

The Ontario Divisional Court granted the motion to adduce new evidence and allowed the appeal. The Master's order was set aside and the action was restored to the trial list.

Editor's Note: For a related decision, see (2013), 308 O.A.C. 1.

Practice - Topic 5360

Dismissal of action - Grounds - General and want of prosecution - Delay - In 2004, Kerr commenced an action against the defendants, claiming investment losses of $2.5 million - Evans acted for her, but failed to schedule a trial - In 2010, the action was struck from the trial list - Evans scheduled a motion under rule 48.11 for January 2011 to restore the action to the trial list - On learning of Evans' mishandling of the action, Kerr terminated her relationship with Evans and hired Ormston - Ormston failed to take steps on the motion - In July 2012, a Master denied the motion and dismissed the action - The Ontario Divisional Court allowed Kerr's appeal - The test under rule 48.11 required Kerr to establish that there was an acceptable explanation for the delay - This was different from the test that the Master had applied, which was whether the delay was "intentional and contumelious" - However, the difference was irrelevant due to errors made by the Master in considering evidence - The Master concluded that, at some point, he could infer that the delay had become intentional, rather than inadvertent or neglectful - In doing so, he either overlooked or failed to consider relevant, cogent evidence, resulting in reversible error - See paragraphs 40 to 51 - There was no evidence that Kerr had intentionally delayed the matter - Her explanation was that she had always wanted to proceed, had instructed her lawyers to do so and had constantly inquired about a trial date - Her lawyers had failed her - That was an acceptable explanation - See paragraphs 66 to 76.

Practice - Topic 5360

Dismissal of action - Grounds - General and want of prosecution - Delay - In 2004, Kerr commenced an action against the defendants, claiming investment losses of $2.5 million - Evans acted for her, but failed to schedule a trial - In 2010, the action was struck from the trial list - Evans scheduled a motion under rule 48.11 for January 2011 to restore the action to the trial list - On learning of Evans' mishandling of the action, Kerr terminated her relationship with Evans and hired Ormston - Ormston failed to take steps on the motion - In July 2012, a Master denied the motion and dismissed the action - The Ontario Divisional Court allowed Kerr's appeal - The test under rule 48.11 required Kerr to establish that the defendants would suffer no non-compensable prejudice if the action was allowed to proceed - The Master had erred in holding that, due to the limitation period having passed, there was a presumption of prejudice that Kerr was required to rebut and that, as Kerr had led no evidence, the presumption was not rebutted - The Master failed to consider that there was no evidence of any kind led by the defendants that they would be prejudiced - There were other evidentiary errors as well - See paragraphs 52 to 64 - The defendants had not demonstrated any significant prejudice - This was a negligence action against a broker - There had been extensive documentary production - Examinations for discovery had taken place - Nor had the defendants demonstrated prejudice arising from the fact that Kerr had commenced an action against Evans and Ormston and she could be compensated in that action - Even if that was a factor that should be taken into account, it was not persuasive here due to Evans' and Ormston's insurance limits - Kerr had demonstrated that the defendants would suffer no non-compensable prejudice if the action was allowed to proceed - See paragraphs 77 to 90.

Practice - Topic 5360.1

Dismissal of action - Grounds - General and want of prosecution - Excuse for delay - [See first Practice - Topic 5360 ].

Practice - Topic 5362

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

Practice - Topic 5362.1

Dismissal of action - Grounds - General and want of prosecution - Inference of prejudice (incl. rebuttal of) - [See second Practice - Topic 5360 ].

Practice - Topic 5398

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

Practice - Topic 9031

Appeals - Evidence on appeal - Admission of "new evidence" - In 2004, Kerr commenced an action against the defendants, claiming investment losses of $2.5 million - Evans acted for her, but failed to schedule a trial - In 2010, the action was struck from the trial list - Evans scheduled a motion under rule 48.11 for January 2011 to restore the action to the trial list - On learning of Evans' mishandling of the action, Kerr terminated her relationship with Evans and hired Ormston - Ormston failed to take steps on the motion - In July 2012, a Master denied the motion and dismissed the action - Kerr appealed and moved to adduce new evidence on the appeal - The evidence was from Ormston regarding the delays caused by his inactivity, his concealing facts from Kerr and Kerr's instructions to him regarding proceeding with the action - The Ontario Divisional Court granted the motion to adduce new evidence - Kerr could not have obtained the evidence by due diligence before the motion was heard by the Master as Ormston had concealed his neglect - The evidence was credible - Ormston had been cross-examined on it on a costs motion - It was relevant and could reasonably be expected to have affected the Master's decision - The evidence was admitted - The court also admitted reply evidence from the defendants which they asserted showed that Kerr had caused the delay - See paragraphs 20 to 38.

Cases Noticed:

R. v. McBirnie (P.S.) (1992), 59 O.A.C. 1 (C.A.), refd to. [para. 22].

R. v. P.S.M. - see R. v. McBirnie (P.S.).

Vernon v. General Motors of Canada Ltd. et al. (2002), 163 O.A.C. 182 (C.A.), refd to. [para. 23].

R. v. Appleton (W.) (2001), 149 O.A.C. 148; 55 O.R.(3d) 321 (C.A.), refd to. [para. 29].

Marché d'Alimentation Denis Thériault ltée et al. v. Giant Tiger Stores Ltd. (2007), 247 O.A.C. 22; 87 O.R.(3d) 660 (C.A.), refd to. [para. 37].

Finlay v. Van Paassen et al. (2010), 266 O.A.C. 239; 101 O.R.(3d) 390; 2010 ONCA 204, refd to. [para. 37].

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. 39].

Nissar v. Toronto Transit Commission (2013), 309 O.A.C. 8; 2013 ONCA 361, refd to. [para. 40].

Business Development Bank of Canada v. I Inc., 2013 ONSC 1749 (Master), refd to. [para. 41].

Koepcke et al. v. Webster, [2012] O.T.C. Uned. 357; 2012 ONSC 357 (Master), refd to. [para. 41].

Pouget v. Hynes (2013), 303 O.A.C. 289; 2013 ONSC 487 (Div. Ct.), refd to. [para. 41].

Tri-Peak Holdings Inc. et al. v. Metroplex Developments Inc. et al., [2012] O.T.C. Uned. 6234; 2012 ONSC 6234, refd to. [para. 41].

Wellwood v. Ontario Provincial Police et al. (2010), 262 O.A.C. 349; 2010 ONCA 386, refd to. [para. 55].

Armstrong v. McCall et al. (2006), 213 O.A.C. 229; 28 C.P.C.(6th) 12 (C.A.), refd to. [para. 64].

Farmers Oil & Gas Inc. v. Ontario (Minister of Natural Resources) et al., [2012] O.T.C. Uned. 6432; 2012 ONSC 6432, refd to. [para. 67].

Counsel:

Andrew Faith and Jeffrey Haylock, for the plaintiff/appellant;

Pat Flaherty and Rebecca Wise, for the brokerage defendants;

Andrew Evangelista, for Transamerica Life Insurance Company of Canada.

This appeal was heard on December 10, 2013, by Newbould, J., of the Ontario Divisional Court, who delivered the following endorsement on December 16, 2013.