Legal Blog

Delay Delay

Sometimes the cases that we discuss are weighty; they affect the law and have serious precedential value. The case of Susin v. Baker [2003] O.J. No. 5193 (SCJ) is not one of these cases. It is a case that demonstrates what the courts, LawPro counsel, and, indeed, all counsel sometimes have to put up with.

Action No. 1

In June or July 1956, a subcontractor delivers pipes that Susin’s corporation alleges are defective, resulting in damages to the corporation. On July 6, 1962, Susin sues the sub. How Susin has a cause of action for the corporation’s damages is never discussed. The sub defends the action, alleging that the action is statute barred because the 6-year limitation period has expired.

Little happens in the action; there are no discoveries. The sub obtains an order in 1967 dismissing the action for want of prosecution. Susin claims that he knows nothing of the dismissal until he receives the file from his lawyer (lawyer no. 1) in 1978.

Action No. 2

In August 1983, Susin commences an action against lawyer no. 1. He alleges that the lawyer negligently prosecuted action no. 1.

Susin, of course, has some hurdles to overcome. He has to demonstrate that action no. 2 is not statute barred. Can one really believe Susin when he says that he did not know until 1978 that action no. 1 had been dismissed? What did he think had been happening through 16 years of silence? He also had to prove on the balance of probabilities that action no. 1 would have been successful if it had been tried on the merits.

After Susin commences the action, he then retains lawyer no. 2 to act for him. Lawyer no. 2 attends at some cross-examinations, but, by the spring of 1985, Susin has fired him. For whatever reason, lawyer no. 2 does not move to get off the record until 1987.

Sometime after lawyer no. 2 is fired, Susin hires lawyer no. 3 to attempt to negotiate a settlement of action no. 2. Lawyer no. 3 tries and is unsuccessful. He never becomes the solicitor of record in the action.

In April 1987, lawyer no. 2 obtains an order removing himself as solicitor of record. At the same time, the court orders action no. 2 dismissed for delay. Susin claims that he did not know about the return date of either motion. However, he admits that he knew about the orders shortly after they were made. Indeed, lawyer no. 2 wrote to Susin, told him about the orders, and informed him that if he wished to move to set aside the order for dismissal, he had to do so quickly.

One and one-half years later (otherwise known as “Susin quicktime”), Susin moves to set aside the order and, surprise, that motion is dismissed for delay. Susin appeals and the Court of Appeal dismisses the appeal in 1989.

Action No. 3

In 1993, four years later, Susin, who represents himself, commences an action against lawyer no. 2 and lawyer no. 3. Aside from their defences on the merits, the lawyers have all the defences of the sub in action no. 1 and the lawyer in action no. 2.

Nothing much happens for four years, but, in 1997, the defendants examine Susin for discovery. Two years later, Susin answers his undertakings. He never sets the matter down for trial and, in 2003, after 4 more years, the lawyers move to dismiss action no. 3 for delay.

Test

A court will dismiss an action for delay if

a)   there is no justifiable excuse for the delay, and

b)   the defendant has suffered such prejudice from the delay that there is a substantial risk that a fair trial will not be possible.

Susin’s explanation for the four-year delay was that he was waiting for the defendants to complete their examination of him and to arrange his examination of them. The judge noted the pattern of delay over the past 41 years and curtly rejected this explanation.

As to the second test, the judge noted that if the action proceeded to trial, “the court will be required to closely examine the circumstances that occurred in 1956. It is trite to say that memories will fade over time. It is inconceivable that any person would currently remember the events of 1956 with any precision.” Technically, this should not have been the application of the test, because that problem would have been front and centre even had action no. 3 been tried within a year of its commencement in 1993. We cannot see much difference in attempting to reconstruct what happened 38 years ago, rather than 47 years ago. However, given all of the circumstances, it was good enough for the judge.

Experience

This is not the first case in which Susin was involved as plaintiff that was dismissed for delay of one sort or another. In Susin v. Genstar Co. [2001] O.J. No. 5193 (SCJ), his action against a subcontractor, for work done in 1974, was also dismissed because he allowed a limitations deadline to expire. Susin acted for himself in this action.

We do not know what lawyer no. 2 and lawyer no. 3 could have done to protect themselves from being defendants, other than, perhaps, refusing to act in the first place. Given that Susin acted for himself in action no. 3, he either did not want to put himself in the hands of another lawyer or no other lawyer was foolish enough to act for him.

We have only one question that nags us: at what point in our recitation of facts, did you start to laugh?