Law Times

Law Times • march 14, 2016 Page 11 www.lawtimesnews.com Judge stays case after 'hibernation' on civil file BY YAMRI TADDESE Law Times I n a sharply worded decision permanently staying an ac- tion, 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 desul- tory prosecution of an action be- come 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 Dun- phy. "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 in- tegrity of its own process." The judge made those com- ments 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 put- ting 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 suc- ceeded in having a judge set aside the dismissal. As part of the con- dition for setting aside the dis- missal, 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 mis- taken for a rubber stamp and its orders are not to be treated as mere suggestions to be fol- lowed 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 or- ders of the court she has sought, there can be no prejudice in put- ting an end to the sorry spectacle before it consumes further re- sources 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 encum- bered with claims such as this, advanced by parties showing such utter disregard for orders of the court and for the rudimen- tary principles of diligence. The right to a day in court to resolve a claim must be earned by pursu- ing it diligently." Lee Akazaki, civil trial and ap- pellate counsel at Gilbertson Da- vis 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 "some- thing 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 ac- tion, 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 af- fidavit 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 re- quest for comment. The plain- tiff 's new counsel Mikhail Shloznikov says his client will challenge the decision. "We have received instruc- tions 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 con- tinue 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 plain- tiff 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 responsi- bility 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 cli- ent . . . phoning up the lawyer's office and saying, 'What are you doing for me?'" 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Call 1.800.387.5164 or visit www.carswell.com Hardbound • Published February each year • L88804-765 • On subscription $169* • One time purchase $188* Multiple copy discounts available * Plus shipping/handling and applicable taxes Untitled-3 1 2016-03-09 8:34 AM SAVE 10% Register before April 1, 2016 May 16, 2016 - Toronto | Webinar To register and learn more visit Powered by INFORMATION TECHNOLOGY LAW SPRING FORUM 2016 CHAIRED BY Lisa R. Lifshitz, Partner, Torkin Manes LLP Cory Freed, Senior Legal Counsel, Microsoft Canada Inc. WWW.IT-CONFERENCE.CA THIS PROGRAM CONTAINS 3 PROFESSIONALISM HOURS Untitled-1 1 2016-03-02 10:05 AM Lee Akazaki says the judge was right to dismiss a case that took years to be put to trial.

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