EXPLANATION OF THE LITIGATION DELAY
[43] I find that the Plaintiff has failed to establish an adequate or reasonable explanation for the litigation delay. This action arises out of an incident that occurred on July 12, 2005 and the Statement of Claim within action was issued on May 3, 2007. This is the second Statement of Claim issued by the Plaintiff. There was nothing preventing the claim from being brought forward and dealt with expeditiously. However, the examination for discovery of the Plaintiff was not completed until January 4, 2010 after four previous failed attempts to complete his discovery. Despite several written requests, the Plaintiff did not provide an affidavit of documents or any productions in support of his claim until December 2, 2009, shortly before the fifth scheduled discovery date. The Plaintiff failed to comply with undertakings given at his examination for discovery, necessitating a motion and cancellation of an independent medical assessment scheduled by counsel for the Defendant Western. The Plaintiff then failed to comply with the terms of the order of Justice Milanetti dated February 3, 2011.
[44] It is the Plaintiff who bears the primary responsibility under the Rules of Civil Procedure for the progress of the action. In the within case Western was the party who acted promptly making repeated efforts (without response) to obtain damages documentation, schedule and complete the Plaintiff’s examination for discovery and move to compel responses to the Plaintiff’s own undertakings. The Plaintiff essentially did not initiate any procedural steps in the action subsequent to their writing to solicitors for Denis Lariviere on July 7, 2008 in order to reschedule the examination for discovery of Denis Lariviere to January 5, 2009 and attendance at that discovery.
[45] There is no direct evidence from the Plaintiff Michael Hernandez on this motion to explain the litigation delay or setting out that he had an intention to pursue this action. Mr. Hernandez did not cooperate in the prosecution of his action by failing to attend for discovery on multiple occasions. Counsel for Western submits that it can be inferred from this that Mr. Hernandez sanctioned the delay in the litigation. I find that the inference is a reasonable one but in any event there is no evidence before me that Mr. Hernandez took any steps to see that his counsel was proceeding with his claim.