Toronto personal injury law firm’s $5-million lawsuit against ex-employees dismissed for delay
Grillo Barristers had sued Kagan Law firm over alleged wrongful soliciting of clients following their split
A Toronto personal injury law firm’s $5-million lawsuit against one of its former lawyers and her law clerk has been dismissed for delay.
Grillo Barristers filed the claim against Kagan Law firm all the way back in February 2013, shortly after principal Daria Kagan and her law clerk, Natasha Baksh, had both quit Grillo to go out on their own.
However, in February 2018, Grillo’s action fell victim to r. 48.14 of the Rules of Civil Procedure, under which the court registrar automatically dismisses actions not set down for trial within five years of launch.
An Ontario Superior Court master agreed to reinstate the action in 2019, before Justice Andrew Pinto delivered the most recent ruling in the case, upholding the registrar’s dismissal.
“The big picture is that the plaintiff, a law firm no less, did not move his action beyond the pleading stage in five years. This is after being clearly warned by his own lawyer of the impending dismissal. The defendants’ conduct in not moving their counterclaim forward does not, in my view, change matters,” Justice Pinto’s decision reads. “That Grillo sought to set aside the Registrar’s dismissal reasonably promptly, does not override the other factors or disturb my overall conclusion that this case is one of very significant and inexcusable delay, and one that should not be reinstated. The Master’s decision is set aside and the Registrar’s dismissal of the action is upheld.”
In a statement, Kagan’s counsel Chris Hunter of Lenczner Slaght LLP said Justice Pinto’s reasons speak for themselves.
“Our clients are pleased with the result,” he added.
According to the ruling, Kagan and Baksh joined Grillo in October 2012, only to leave four months later, bringing with them 40 clients who terminated their retainers with Grillo in favour of new ones with Kagan Law Firm. That prompted Grillo to sue the pair and their new firm, alleging wrongful solicitation of clients.
Over the next five years, Grillo went through three lawyers, whose tenures served as the rough dividing lines of the five-year timeline for Master Jay Josefo’s decision reinstating the action:
During the first period between February 2013 and August 2015, the master took into account a four-month break Grillo’s counsel took for paternity leave, finding the matter was “still advancing, albeit not rapidly.”
In the second period, between August 2015 and November 2017, the master described Grillo as a “sojourner,” effectively abdicating his role as a plaintiff.
Finally, between November 2017 and the February 22, 2018 dismissal, the Master found that Grillo, reverted back to being a litigant and was advancing his case.
However, Justice Pinto found a number of errors in the master’s assessment, concluding that he had equated delay with the litigation not advancing at all, which resulted in him “giving a pass to the plaintiff for the First Period of two and a half years, where litigation was advancing, albeit very slowly; and for the Third Period, where there was three months of delay.”
“This ‘all or nothing’ approach to delay skewed the Master’s analysis. The Master erred by failing to ask whether Grillo’s explanation for his delay was satisfactory; instead asking whether the length of delay was ‘unforgiveable’ and thereto, only with respect to the Second Period,” Justice Pinto wrote.
“Despite finding that Grillo slumbered for two and a quarter years, the Master accepted some sporadic emails as evidence of Grillo not going silent or vanishing, as if that were the legal test. The Master unacceptably lowered the bar on what it means to ‘prosecute the action’ and considered a last-minute awakening by Grillo as evidence of it always intending to prosecute the action,” he added.
After concluding that the errors in the master’s decision required it to be set aside, Justice Pinto went on to conduct his own assessment and upheld the registrar’s dismissal.
“For the reasons above, I find that Grillo did not provide a satisfactory explanation for at least one year of delay in the First Period, two and a quarter years in the Second Period and three months of delay in the Third Period. Cumulatively, I find no satisfactory explanation for these three and a half years of delay over the five year period. I find that Grillo did not demonstrate that he always intended on prosecuting the action, an observation raised by his own lawyer,” he concluded. “Finally, Grillo did not convince me that the defendants will not face significant prejudice in presenting their case at trial as a result of Grillo’s delay.”
Counsel for Grillo Barristers did not respond to a request for comment.
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