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10 Year Old Lawsuit Faces Motion To Dismiss for Delay: A Close Call Averted

If your lawsuit is not moving forward in an expeditious manner, the defendants can bring a motion to dismiss for delay, as occurred in this recent case: Mayhew v. Paddon + York Inc., 2014 ONSC 57 (CanLII).

In this case, the allegations against the plaintiffs included failure to comply with several previous Court orders, as well as a delay in answering undertakings arising from Discovery.

Judge Morawetz lays out the test to consider as follows:

[28] The court’s authority to dismiss an action for delay is found in Rule 24.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[29] The law in the area is settled. In my view, it is accurately set out in the factum of the Third Party, as follows:

There are two Circumstances in which the Court may Dismiss for Delay

45. The test on a motion for dismissal of the action for delay is well established. In Alexander v. Rosedale United Church, [2010] O.J. No. 3282, affirmed by the divisional court, Master Glustein provided a thorough summary on the case law regarding motions to dismiss for delay. Master Glustein wrote:

a) ‘Rule 24 imposes a positive duty upon the plaintiff to progress the lawsuit’. Consequently, the responsibility for moving an action forward is ‘a burden that is born by the plaintiff’ and is ‘not the responsibility of the defendant’ (Standard Trust Co. v. Jackson, [1993] O.J. No. 2764 (Gen. Div.) at paras. 15, 16, 18);

b) An action should not be dismissed for delay unless ‘(1) the default is intentional and contumelious; or (2) the plaintiff or his or her lawyers are responsible for the inexcusable delay that gives rise to a substantial risk that a fair trial might not now be possible’ (Armstrong v. McCall, [2006] O.J. No. 2055 (C.A.) at para 11 (‘Armstrong’); citing Woodheath Develoments Ltd. v. Goldman, [2003] O.J. No. 3440 (Div. Ct.) (‘Woodheath’) at para. 4);

c) ‘In determining whether the delay has been unreasonable the court should consider the issues raised by the case, the complexity of the issues, the explanation for the delay and all relevant surrounding circumstances’ (Belanger v. Southwestern Insulation Contractors Ltd., [1993] O.J. No. 3095 (Gen. Div.) (‘Belanger’) at para. 28);

d) The plaintiff bears the onus of establishing a credible excuse for the delay, and, until such credible excuse is made out, the nature inference is that the delay is inexcusable (Saikaley v. Commonwealth Insurance Co. (1978), 21 O.R. (2d) 629 (H.C.J.) (‘Saikaley’) at 635-36 and Oancia v. Rempel, [2000] A.J. No. 1327 (Q.B.) (‘Oancia’) at paras. 70-71);

e) ‘It is presumed that memories fade over time, and an inordinate delay after the cause of action arose or after the passage of limitation period gives rise to a presumption of prejudice’ (Armstrong, supra, at para. 11 and Woodheath, supra, at para. 4);

f) ‘Where there is a presumption of prejudice, the defendant need not lead actual evidence of prejudice and the action will be dismissed for delay unless the plaintiff rebuts the presumption’ (Armstrong, supra, at para. 11; Woodheath, supra, at para. 4);

g) When faced with the presumption of prejudice, the plaintiff has the onus ‘to persuade the court with convincing evidence that no prejudice would be suffered as a result of the delay and that there was not a substantial risk that a fair trial would not be possible’ (Woodheath, supra, at para. 5) and

h) ‘The presumption of prejudice may be rebutted by evidence that all documentary evidence has been preserved and the issues in the lawsuit do not depend on the recollection of witnesses or that all necessary witnesses are available with detailed recollection of the events. If the presumption is rebutted, then the action may still be dismissed if the defendant leads convincing evidence of actual prejudice’ (Armstrong, supra, at para. 11 and Woodheath, supra, at para. 4).

Alexander v. Rosedale United Church, [2010] O.J. No. 3282, at para. 57, Tab #1, Brief of Authorities of the Moving Third Party.

After a detailed analysis, Judge Morawetz allowed the plaintiff’s claim to continue, though he did not award the plaintiff costs of the motion. There was some evidence of health problems of the plaintiff preventing a timely disclosure of information, as well as the plaintiff instructing the solicitor to move the file forward, at all relevant times.

Gregory Chang

Toronto Personal Injury and Insurance Lawyer