Top 5 Civil Appeals from the Court of Appeal (March 2012)

Bolohan v. Hull, 2012 ONCA 121 (Sharpe J.A., Armstrong J.A. and Watt J.A.), February 22, 2012 Sharma v. Timminco Limited, 2012 ONCA 107 (Goudge J.A., Armstrong J.A. and Lang J.A.), February 16, 2012 Coulson v. Citigroup Global Markets Canada Inc. 2012 ONCA 108 (Goudge J.A., Armstrong J.A. and Lang J.A.), February 16, 2012 Curactive Organic Skin Care Ltd. v. Ontario 2012 ONCA 81 (Doherty J.A., LaForme J.A. and Hoy J.A.), February 7, 2012 Hansen Estate v. Hansen, 2012 ONCA 112 (Winkler C.J.O., Doherty J.A. and Goudge J.A.), February 22, 2012 Ashfield-Colborne-Wawanosh (Township) v. Central Huron (Municipality), 2012 ONCA 111 (Weiler J.A., Sharpe J.A. and Blair J.A.), February 21, 2012 1. Bolohan v. Hull, 2012 ONCA 121 (Sharpe J.A., Armstrong J.A. and Watt J.A.), February 22, 2012 In this wrongful dismissal case, the Court of Appeal provided some useful guidance about status hearings.

In advance of a status hearing, the defendant's lawyer advised the plaintiff's lawyer that he would be asking the Master at the status hearing to dismiss the action for delay. On the basis of oral representations by counsel at the status hearing, the Master denied the request for a dismissal. Pursuant to Rule 48.14(13), the Master exercised her discretion and provided a detailed timetable and discovery plan for the completion of the action. While the plaintiff had no explanation for a delay of some 22 months, the defendant had sat idly and had not complied with the Rules in all respects.

On appeal to the Superior Court, the judge held that the plaintiff had failed to file affidavit evidence necessary to satisfy her onus under Rule 48.14, and allowed the defendant's appeal. The Court of Appeal for Ontario disagreed, holding that it was an error to require affidavit evidence and commenting that "the usual practice is for the initial status hearing to proceed on the basis of oral submissions". If the judicial officer conducting a status hearing forms the view, on the basis of oral submissions, that the action is vulnerable to dismissal for delay, then, ordinarily, a full hearing will be ordered on affidavit evidence.

In this case, the defendant's lawyer made no objection to the plaintiff's lawyer outlining facts by way of oral submissions rather than by affidavit evidence. The Court of Appeal held that the plaintiff's lawyer was entitled to proceed before the Master at the initial status hearing without affidavit evidence and it was an error for the appeal judge to find that the plaintiff had failed to meet her onus to explain the delay.

While the Court of Appeal overturned the appeal judge's order on this basis, the Court then turned to a consideration of the proper legal test to be applied at a Rule 48.14 status hearing. The Master had stated in her endorsement that the test to be applied was the same as on a motion to dismiss for delay under Rule 24. The Court of Appeal held that Rule 24 has no application to a Rule 48.14 status hearing. The proper test on a status hearing is whether there is an acceptable explanation for litigation delay and whether, if the action is allowed to proceed, the defendant will suffer non-compensable prejudice. The plaintiff has the burden to meet the test.

Rather than remitting the case back for another status hearing, the Court of Appeal used the relevant undisputed facts in the record to make its determination. It found that there was not an "unexplained delay of 22 months" although there was a troubling failure to move the action forward in a timely manner. Here, the plaintiff attempted to schedule a mediation four months after the defence was filed, but was met with the defendant's insistence on a non-rostered mediator. The plaintiff's lawyer assumed the court would automatically assign a rostered mediator, but it did not occur. The status notice was months later and a request for a status hearing was made. The plaintiff proposed a timetable prior to the status hearing.

The Court of Appeal commented that, while the focus of the analysis on a Rule 48.14 hearing is the plaintiff's conduct, the conduct of the defendant in the litigation can still have bearing on the assessment of the reason for the delay. In this case, while the defendant may have been "strictly entitled" to insist on non-rostered mediator, it was not a tactic consistent with a willingness to see a relatively straightforward case proceed expeditiously. The delay was, therefore, not exclusively attributable to the plaintiff as some steps were taken to move the action forward but met resistance by...