Marché d’Alimentation v. Giant Tiger (2007), 247 O.A.C. 22 (CA)
MLB headnote and full text
Temp. Cite: [2009] O.A.C. TBEd. MR.001
Marché d’Alimentation Denis Thériault ltée and Denis Thériault and Josee Thériault (plaintiffs/respondents) v. Giant Tiger Stores Limited (defendant/appellant)
(C46213; 2007 ONCA 695)
Indexed As: Marché d’Alimentation Denis Thériault ltée et al. v. Giant Tiger Stores Ltd.
Ontario Court of Appeal
MacPherson, Sharpe and Juriansz, JJ.A.
October 12, 2007.
Summary:
The plaintiffs applied under rule 48.14(11) to set aside the dismissal of their action.
A Master of the Ontario Superior Court dismissed the motion. The plaintiffs appealed.
The Ontario Divisional Court, per Cameron, J., allowed the appeal. See 215 O.A.C. 75. The defendant appealed.
The Ontario Court of Appeal allowed the appeal.
Practice – Topic 5357
Dismissal of action – General – Reinstatement or revival of dismissed action – In 1996, the plaintiffs sued the defendants for, inter alia, $3 million damages for lost rent – The defendant defended and counterclaimed for $1.1 million in damages – The plaintiff’s lawyer (Legault) filed a reply and defence to counterclaim – The plaintiffs retained a new lawyer (Wilcox) – She failed to file a notice of change of solicitors with the court – In early 1998, Wilcox moved and the plaintiffs retained Gauthier – Gauthier’s assistant was not able to file a notice of change of solicitors because Legault was still on record as solicitor and the assistant could not locate him to serve him – The assistant did not report these problems – In late 1998, Gauthier was served with a notice of status hearing – In March 1999, the Registrar dismissed the plaintiffs’ action – The order was sent to Legault and then returned to the Registrar stamped “Return to Sender” – In 2003, Gauthier transferred the file to Richer – In attempting to retrieve the court’s file, Richer discovered that the claim had been dismissed in 1999 – The plaintiffs applied under rule 48.14(11) to set aside the dismissal – The Ontario Court of Appeal held that a Master properly dismissed the application – Gauthier’s behaviour resulted in excessive delay – Delays of this kind were inimical to the important goal of timely justice – The legal system should not condone the solicitor’s behaviour as doing so would fail to provide appropriate incentives to those engaged in the justice system and risk harming the integrity and repute of the administration of justice – Reinstating the action would undermine the finality principle, while refusing to do so would not interfere with the need to ensure adequate remedies as the solicitor’s conduct very likely exposed him to liability to the client.
Practice – Topic 5357
Dismissal of action – General – Reinstatement or revival of dismissed action – In 1996, the plaintiffs sued the defendants for, inter alia, $3 million damages for lost rent – The defendant defended and counterclaimed for $1.1 million in damages – The plaintiff’s lawyer (Legault) filed a reply and defence to counterclaim – The plaintiffs retained a new lawyer (Wilcox) – She failed to file a notice of change of solicitors with the court – In early 1998, Wilcox moved and the plaintiffs retained Gauthier – Gauthier’s assistant was not able to file a notice of change of solicitors because Legault was still on record as solicitor and the assistant could not locate him to serve him – The assistant did not report these problems – In late 1998, Gauthier was served with a notice of status hearing – In March 1999, the Registrar dismissed the plaintiffs’ action – The order was sent to Legault and then returned to the Registrar stamped “Return to Sender” – In 2003, Gauthier transferred the file to Richer – In attempting to retrieve the court’s file, Richer discovered that the claim had been dismissed in 1999 – The plaintiffs applied under rule 48.14(11) to set aside the dismissal – A Master dismissed the motion – The Divisional Court, per Cameron, J., allowed the plaintiffs’ appeal, holding that the requirement that the dismissal be inadvertent was met – Cameron, J., held that inadvertence could include negligence – The fault of the delay, both before the Registrar’s termination and thereafter, was Wilcox and Gauthier and their possible negligence and Gauthier’s laziness – The defendant appealed – The Ontario Court of Appeal allowed the appeal – The court agreed with the Master that given the length of the delay and the fact that it was caused by Gauthier effectively abandoning the file, the failure to move the case along to trial could not be considered as mere inadvertence – Rather, it amounted to conduct that very likely exposed him to liability to the client – See paragraphs 27 to 29.
Cases Noticed:
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. 12].
Mandal v. 575419 Ontario Ltd. (1994), 23 C.P.C.(3d) 172 (Ont. Gen. Div.), refd to. [para. 14].
Halton Community Credit Union Ltd. v. I.C.L. Computers Ltd. (1985), 8 O.A.C. 369; 1 C.P.C.(2d) 24 (C.A.), refd to. [para. 17].
Scaini v. Prochnicki et al. (2007), 219 O.A.C. 317; 85 O.R.(3d) 179; 2007 ONCA 63, refd to. [para. 20].
Housser v. Savin Canada Inc. et al., [2005] O.T.C. 896; 77 O.R.(3d) 251; 2005 CanLII 35779 (Sup. Ct.), refd to. [para. 24].
Kuhr v. Pearlman (1991), 76 Man.R.(2d) 67; 10 W.A.C. 67 (C.A.), refd to. [para. 24].
Susin v. Baker and Baker et al., [2004] O.A.C. Uned. 117 (C.A.), refd to. [para. 24].
Convay et al. v. Marsulex Inc. et al., [2002] O.A.C. Uned. 311 (C.A.), refd to. [para. 24].
Blencoe v. Human Rights Commission (B.C.) et al., [2000] 2 S.C.R. 307; 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161; 2000 SCC 44, refd to. [para. 25].
Chiarelli v. Wiens (2000), 129 O.A.C. 129; 46 O.R.(3d) 780 (C.A.), refd to. [para. 28].
Danyluk v. Ainsworth Technologies Inc. et al., [2001] 2 S.C.R. 460; 272 N.R. 1; 149 O.A.C. 1; 2001 SCC 44, refd to. [para. 37].
Authors and Works Noticed:
Holmested, George Smith, and Watson, Garry D., and Perkins, Craig, Ontario Civil Procedure (1984) (Looseleaf), vol. 4, p. 48§15 [para. 23].
Law Society of Upper Canada, Rules of Professional Conduct, rule 2.01 [para. 32].
Counsel:
Jim MacGillivray, for the defendant/appellant;
Allan R. O’Brien, for the plaintiffs/respondents.
This appeal was heard on September 10, 2007, by MacPherson, Sharpe and Juriansz, JJ.A., of the Ontario Court of Appeal. Sharpe, J.A., delivered the following decision for the court on October 12, 2007.
