http://canlii.ca/t/ggzpr

http://canlii.ca/t/gh7bb

[27]      I note that there were two lawyers, from the same firm, who addressed the plaintiff’s claims.  I have referred to them, collectively, as plaintiff’s counsel.  Both advanced the plaintiff’s claims and both erred in failing to set the action down in a timely fashion.  But, in all and in my view, the advancement of the plaintiff’s claims here eclipses the errors made.  Why do I say this?

[28]      The plaintiff has explained the litigation delay and the failure to set the action down for trial (the first two Reid factors), as required.  The trial record was served and, even after the trial record was served, positive steps were taken to move this action forward.  Until late November/10, I cannot say that this action languished.  And while the explanation proffered for the delay from late 2010 until 2013 (when a motion date was obtained) has a few flaws (I accept that the action may have “fallen out of [counsel’s] tickler system” as suggested, but why was there a delay in responding to defendant’s counsel’s letters?), the plaintiff’s delays until October 29/10 are few.  There were a few bumps in the road (such as the rescheduling of the plaintiff’s examination for discovery and the cancellation of mediation) but litigation is seldom conducted without any bumps, including some reasonable delays.  Further, and in any event, there is no evidence before me to suggest that a deliberate decision was made by plaintiff’s counsel or by the plaintiff to fail to advance the litigation towards trial (and, indeed, the steps taken throughout negate that notion). 

[29]      I acknowledge, however, that the motion was not brought promptly (as was argued).  In respect of the third of the Reid factors, plaintiff’s counsel fails.  I understand counsel’s confusion about the trial record but it only takes counsel so far.  Even if it was thought that the dismissal Order was made in error, the dismissal Order ought to have been addressed before it was.  Two years passed and reminders were sent by counsel for the defendant, to little avail.  Noteworthy, though, is the fact that defendant’s counsel did not choose to speak with plaintiff’s counsel by phone.  While I am not faulting defendant’s counsel, I do find it curious that, in a file that had progressed as much as this one had and in respect of which a trial record had been served (if not filed), the parties resorted to the exchange of letters, only. 

http://canlii.ca/t/ggndn

[35]      Ms. Blake contends the trial judge improperly refused to consider the following medical reports: (i) Designated Assessment Centre reports prepared by Dr. Scott Garner, a physiatrist dated August 14, 2003 and June 1, 2005; (ii) an independent physiatry assessment report dated October 2, 2006, prepared by Dr. A. Ghouse; (iii) an April 4, 2003 report prepared by Dr. Keith Meloff, a neurologist; and, (iv) three reports prepared in 2003 by Maureen Ward, an occupational therapist.

[36]      Dominion submits there was no misunderstanding during the trial about the use parties could make of the documents in exhibit 1. Further, Dominion argues that Ms. Blake controlled the witnesses whom she could call in support of her case and, in the result,failed to call Drs. Garner, Ghouse and Meloff, even though it was open to her to do so.

Chronology of events

[37]      This 10-day trial was conducted in three tranches in May, June and December of 2012. On the second day of trial, Ms. Blake’s counsel, Mr. Ferro, tendered as an exhibit a two-volume Accident Benefits Brief that was marked as exhibit 1. At para. 184 of his reasons the trial judge recounted the directions he had given about exhibit 1:

Personal injury firm subject to several adverse decisions by Ontario judges

Last month, in the case of Hernandez v. Lariviere, Ontario Superior Court Justice Thomas Lofchik refused to reinstate the claim of a Ferro & Co. client after the registrar issued an order dismissing the action for delay. Lofchik wrote that the firm’s principal, Lou Ferro, had displayed inaction that could “fairly be interpreted as both intentional and deliberate.”

Citing three previous decisions on motions to set aside dismissals for delay involving Ferro’s firm, Lofchik said in his Dec. 15 decision that it was “far past time for Mr. Ferro to take responsibility for his actions and for the court to respond to a clear pattern of inattentiveness and neglect.”

http://www.lawtimesnews.com/201501124402/headline-news/critical-rulings-show-risks-of-going-paperless-lawyer-says

http://canlii.ca/t/gftlz

[16]           That is quite separate from whether Ferro & Company did anything wrong in advising the plaintiff to institute and pursue unfounded allegations of fraud.

[17]           This is not the first time that this firm has participated in cases involving such unfounded allegations: see, for example, the Sagan case, Steele v. Intact Insurance Company, 2014 ONSC 6999 (CanLII), and, arguably, Blake v. Dominion of Canada General Insurance Co., 2013 ONSC 6069 (CanLII).

[18]           Mr Oostdyk argues that the court should not punish a lawyer for good legal thinking. I think more to the point is whether it should punish bad legal thinking. Whatever I think of false accusations of fraud, I do not think that the lawyer’s conduct meets the threshold set in Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 SCR 3. I think that Rule 57.07 and the common law power discussed in Young v. Younghave more in mind abuse of process, delay and default by lawyers and conduct of that nature. The defendant cites Standard Life Assurance Co. v. Elliott, 2007 CanLII 18579 (ON SC), [2007] O.J. No. 2031, in which Molloy J. imposed costs on the lawyer. In that case the lawyer counterclaimed against an insurance company and added individual employees as defendants when the principal had already admitted that it was liable for their acts. The employees were added, therefore, for no other purpose than to vex them and their employer. That was an abuse of process. In the case at bar, the purpose of the action appears to have been to recover money for the plaintiff from the insurer with whom she had contracted. In the circumstances, a cost order against the unsuccessful party, augmented because of the unfounded allegation of fraud, is sufficient. I propose to follow the usual rule and impose costs against the party, not the lawyer.

[21]           I order the plaintiff to pay the defendant’s costs of the action on a substantial indemnity basis, which I fix at $20,000 all inclusive.