Focus: Judge stays case after ‘hibernation’ on civil file

In a sharply worded decision permanently staying an action, a Superior Court judge called out a lawyer for his long “hibernation” on a civil file that took 10 years to be put to trial.

“At what point does the desultory prosecution of an action become so egregious and abusively glacial as to cross the line from merely inexcusable negligence to contempt of an order of the court?” wrote Justice Sean Dunphy.

“In my view, this case has crossed the line to the latter or come so close to it as not to matter. It would be an abuse of process to sanction this blatant disregard of an express order of the court. If the line is not to be drawn here, I can think of no credible place to draw the line and retain any credibility as a court seeking to control the integrity of its own process.”

The judge made those comments in Jadid v. Toronto Transit Commission, a case in which a woman who was caught between the doors of a TTC bus after running for the bus in 2006 brought an action for the injury she allegedly suffered as a result of the incident.

After an initial delay in putting the action down for trial, the plaintiff was granted a second chance in 2012. At the time, a registrar had dismissed the claim for delay and the plaintiff succeeded in having a judge set aside the dismissal. As part of the condition for setting aside the dismissal, the plaintiff had agreed to set the matter down to trial within 60 days. Alas, she didn’t, Dunphy said.

“This court is not to be mistaken for a rubber stamp and its orders are not to be treated as mere suggestions to be followed or ignored as the mood or whim may suggest. If a party cares so little for a claim as to fail to advance it diligently or even to make a show of abiding by the orders of the court she has sought, there can be no prejudice in putting an end to the sorry spectacle before it consumes further resources of the court and of the innocent defendant,” he wrote.

Added Dunphy: “Enough is enough and the defendant has a right to move on. There are a great number of litigants in line who sincerely want and need their day in court. They should not have to wait one day longer in line in a court system encumbered with claims such as this, advanced by parties showing such utter disregard for orders of the court and for the rudimentary principles of diligence. The right to a day in court to resolve a claim must be earned by pursuing it diligently.”

Lee Akazaki, civil trial and appellate counsel at Gilbertson Davis LLP, says the judge was right to dismiss the action. Waiting 10 years to get a day in court, or in this case a dismissal, is “something that the public shouldn’t have to put up with.”

Akazaki says the facts of the case and the circumstances were simple enough, and the case should have been concluded long ago.

“If you take your car in for repairs, you don’t expect it to be repaired 10 years from now. This is that sort of a case — it’s a rather simple case that should not take beyond a year or two to litigate. Even that is unfortunate, but that’s how long cases tend to take,” Akazaki adds.

The defendant did not have to show prejudice in order for the court to permanently stay the action, according to the judge, who said in cases such as this one, prejudice can be inferred from the passage of time alone.

Dunphy chided the plaintiff’s former lawyer, Gary Mazin, on his “hibernation” for all those years. “What signs of diligence — indeed, what signs of life — can be detected on a review of the file between February 17 and April 17 2012 when the order should have been in the process of being complied with? This is, after all, the time span the plaintiff had asked for and was granted to set the action down for trial,” the judge said.

“Amazingly, Mr. Mazin’s affidavit is completely silent as to what explanation can be offered for the hibernation of this file for those sixty crucial days,” the judge said, “indeed hibernation would appear as a state of giddy hyperactivity beside the state of frozen in-animation displayed over the ensuing two years.”

Mazin did not return a  request for comment. The plaintiff’s new counsel Mikhail Shloznikov says his client will challenge the decision.

“We have received instructions from our client to appeal the decision,” Shloznikov said in an e-mail to Law Times. He didn’t offer further comments.

Shloznikov had argued the court should seriously consider the risk to the plaintiff, who will be deprived of a hearing due to the faults of her counsel. But Dunphy said the plaintiff’s desire to continue with the case doesn’t “veto over the court’s ability to control its process and police delay.”

If the fault for the delay in this case lies with Mazin, the plaintiff is free to pursue a remedy in a different forum, the judge said.

Akazaki says there’s a lot of blame to go around in this case, but it’s hard to say the responsibility lies with the lawyer only.

“In a case like this, you have to wonder if there’s any desire, genuine desire, on the part of the plaintiff to pursue the case,” Akazaki says. “Why isn’t the client . . . phoning up the lawyer’s office and saying, ‘What are you doing for me?’” 

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