Lawyer Bench-slapped For Egregious, Abusively Glacial Delay (Plus Advice For Clients If Action Isn&#

Early in almost every legal action, I am asked by my client how long the matter is likely to take. There is no easy answer. Some matters move along quickly, others drag on in a seemingly endless manner. Much depends on matters outside of one's control such as the overflowing court dockets, difficulty obtaining evidence, delays by other parties and opposing counsel plus numerous other factors. Eventually, if things drag on too long, the matter could end up dismissed for delay. And then, when a defendant thinks the matter is over, it could be restored from it's dismissal and continue on.

A recent Ontario Superior Court decision demonstrates the danger to a client if a lawyer fails to pay attention to the conditions attached to having a matter revived after it had been dismissed for delay. The judge waxed eloquent in describing the inordinate delay stating that the matter "had been filed in the postal code of Sleepy Hollow and not disturbed for two years" along with other colourful descriptions. It provides an amusing read for those so inclined. For those who prefer the summary, it follows.

Way, way back in 2006, the plaintiff was allegedly injured while attempting to board a TTC bus leaving Downsview station. A Statutory Accident Benefit claim was settled and the plaintiff subsequently sued for additional damages. Documents and police reports collected and provided by the TTC who, by early 2009, took the position that they would not pay. At this point, the plaintiff had the choice to move forward with discovery and trial or abandon the case. She chose the former.

But nothing happened.

In the normal course, the plaintiff should have provided her documents and scheduled examinations for discovery. This did not happen. Rather scheduled examinations were cancelled due to the plaintiff's failure to disclose documents.

In April 2011 a status notice was sent out by the court advising the plaintiff that she had 90 days to schedule a status hearing or the matter would be dismissed. the hearing was not scheduled. The matter was dismissed on August 9, 2011.

In September 2011, plaintiff's counsel moved to set aside the administrative dismissal. That motion, which was heard in February 2012, was successful but included the condition that the matter had to be set down for trial in sixty (count 'em - 60) days.

Nothing happened during the sixty days.

Nothing happened during the next sixty weeks. The matter had been filed in the postal code of Sleepy Hollow. It hibernated.

Eventually, new counsel was hired at TTC and since they couldn't determine the status of the matter they wrote to plaintiff's counsel to ask. Sleepy Hollow awakened. In September 2015, plaintiff's counsel finally decided to move things along and attempted to vary the condition requiring the matter to be set down for trial.

The judge was scathing both of the delay and counsel's complete lack of ability to explain the delay. The court stated: At what point does the desultory prosecution of an action become so egregious and abusively glacial as to cross the line from merely inexcusable negligence to contempt of an order of the court? 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 integrity of its own process. The motion to vary the order is denied.

Practically speaking, while these delays are the fault of plaintiff's counsel, it is the plaintiff herself who suffers the damage. Aside from the numerous bench-slaps included in the decision, there is little injury done to the lawyer. The plaintiff can only be made whole if she sues her lawyer and, importantly, can prove that she would have been successful if the matter proceeded to trial. That is a high threshold. Because the litigant is the one who suffers, I offer the following advice:

The Lesson: As the litigant you are the one who risks losing your right to continue if the matter drags on too long. Be aware that not all lawyers are created equal. Some are diligent and proactive and will work hard to move your matter forward. Others are the antithesis of diligent and proactive.

Monitor your legal action. If you have not heard from your lawyer in some time, contact him or her to find out the status of the file. Obtain guidelines for when things should happen. As a general rule, any proactive lawyer should be able to give you a timeline of approximately when things should happen and should advise you of changes to that timeline. It should be a rare occurrence that nothing happens for months on end without you receiving updates or information as to when things will begin to move again. If you are not hearing from your lawyer, contact the Law Society of Upper Canada https://www.lsuc.on.ca/ or speak to another lawyer about whether the delay seems reasonable. At the very least, your proactivity increases the chances of awakening your lawyer if s/he is napping in Sleepy Hollow.

Jadid v Toronto Transit Commission, 2016 ONSC 1176 http://www.canlii.org/en/on/onsc/doc/2016/2016onsc1176/2016onsc1176.pdf

The content and the opinions expressed here is informational purposes only and does not constitute legal or professional advice. Nor does reading or commenting on it create a lawyer/client relationship with the author. I encourage you to contact me directly at adrianlawoffice@gmail.com if you have specific legal questions or concerns.

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