August 17, 2017
In Facchini v. Rosen, Justice Sproat exercised his jurisdiction to make the just order restoring this 2010 action to the trial list.
By way of background, shortly before the claim was instituted on April 19, 2010, the Plaintiff entered into a share purchase transaction to sell his shares in a landscaping business to the Defendant, Jason Rosen (“Rosen”). After the transaction closed, Rosen alleged various misrepresentations and refused to pay the entire purchase price. As a result, litigation ensued. At the outset, the action moved promptly through pleadings, documentary productions and examinations for discovery, which were completed by November, 2010. Thereafter however, the action lingered for approximately two (2) years because of the Plaintiff’s financial circumstances. The Plaintiff subsequently inherited some money and ultimately retained a new lawyer in December, 2014.
Unbeknownst to all counsel, the action was struck from the trial list on December 15, 2014. In May and October, 2015, the parties agreed to restore the action to the trial list but the Defendants ultimately withdrew that consent in December 2015, which necessitated a motion to restore the action to the trial list.
Justice Sproat was satisfied the Plaintiff discharged his onus to adequately explain the litigation delay and demonstrated the Defendants would suffer no compensable prejudice as a result of any litigation delay in this action.
The Court accepted the Plaintiff’s financial circumstances and corresponding inability to pay his lawyer was a reasonable explanation for approximately two (2) years of litigation delay. Further, by applying the contextual and pragmatic approach, the Court also accepted that the Plaintiff’s counsel’s delay of approximately eight (8) months to bring the motion restoring the action to the trial list was adequately explained by various personal and health circumstances. While Plaintiff’s counsel did appear on several other matters in court during the relevant period for which he claimed he was suffering health issues, the Court concluded it does not follow that counsel’s health issues did not cause or contribute to the delay to bring this motion. Justice Sproat held the Plaintiff should not bear the consequences of his lawyer’s delay to bring this motion.
In assessing prejudice, the Court held that all the evidence was preserved through the early exchange of productions and completion of discoveries and the transcripts were available for trial. Further, the Defendants did not adduce any evidence to explain why they were prejudiced after they had initially consented to restore the action to the trial list as late as October 2015 but withdrew that consent in December 2015.
As a relevant contextual factor, the Defendants never expressed any concern regarding the pace of litigation nor did they take any steps to prosecute the Counterclaim in a more diligent fashion than the main action.
Under the circumstances, the Court made the just Order restoring this action to the trial list for a determination on the merits.