A wrongful dismissal case against Pitney Bowes of Canada that began in 2016 has been granted an extension for setting a trial date by the Ontario Superior Court of Justice, despite opposition from the defendant seeking dismissal of the action.
The case, which stems from a statement of claim issued on May 16, 2016, faced a procedural impasse due to COVID-19 related delays. The court acknowledged the pandemic’s impact, noting that administrative dismissals had been on hold since its onset. The plaintiff’s motion, filed on July 27, 2022, sought to extend the trial deadline and establish a new litigation timetable.
Two-part test
The court’s decision hinged on a two-part test, requiring the plaintiff to provide an acceptable explanation for the delay and to demonstrate that the defendant would not suffer non-compensable prejudice.
“The plaintiff’s explanation for the delay need only be ‘acceptable.’ An ‘adequate’ or ‘passable’ will suffice,” the court said. “The explanation need not be ‘perfect’ nor even ‘good.'”
The court cited several precedents, emphasizing the need for a conjunctive test and a balance between timely justice and resolving disputes on their merits.
Onus on plaintiff
Justice Raikes, in a previous ruling, outlined the guiding principles for such decisions, stating, “The onus is on the plaintiff to demonstrate why the action should not be dismissed for delay.”
The plaintiff’s counsel provided reasons for the delay, including the pursuit of mediation and personal health issues, compounded by the pandemic. The court found these reasons acceptable and noted that the delay did not primarily lie with the plaintiff.
“I find that the responsibility for the 23 months’ total delay from October 2019 to March 2021 and from August 2021 to March 2022 lies with the plaintiff’s lawyer, due to the lawyer’s personal health issues and the strains on his practice arising from the pandemic as well as to his inadvertence and self-confessed lack of diligence,” the court said. “I would not attribute any of this delay to the plaintiff herself.”
In assessing potential prejudice to the defendant, the court found no evidence of non-compensable harm. Despite the departure of several potential defense witnesses from the defendant’s employ, there was no indication that their absence would adversely affect the defense.
The court, therefore, ruled in favor of the plaintiff, setting a new timetable for the case’s progression. Examinations are to be completed by March 15, 2024. Answers to undertakings given on examination for discovery shall be provided by June 15, 2024. And a trial date of July 15, 2024 was set.
Costs were also awarded to the plaintiff in the amount of $15,000, inclusive of HST, payable within 30 days.
For more information, see Martellacci v. Pitney Bowes of Canada Ltd., 2024 ONSC 320 (CanLII)
