The Court of Appeal has provided guidance with respect to the test for restoring an action to the trial list.
In Nissar v. Toronto Transit Commission, 2013 ONCA 361 (C.A.), the plaintiff alleged she was injured while a passenger on a bus in 1999. Examinations for discovery took place in 2002, but transcripts were not ordered and the tapes were destroyed in 2010. Although the matter was set down for trial in 2004, it was struck off the trial list in 2005. The plaintiff changed counsel three times. The motion to restore the action to the trial list was not brought until 2011, and not heard until 2012. The motion judge dismissed the motion, holding there was no explanation as to why it had taken seven years to bring the motion to restore the action to the trial list, and there was prejudice to the defendant as pre-accident OHIP records were not available and the defendant might not remember details of an accident that occurred 13 years previously.
The Court of Appeal dismissed the appeal. The plaintiff bears the onus of demonstrating there is an acceptable explanation for the delay in the litigation and that, if the action were allowed to proceed, the defendant would suffer no non-compensable prejudice. In the circumstances, the plaintiff had failed to meet the test.
The Nissar decision was release concurrently with the Faris case, which was the subject of last week's post. They may signal a new emphasis on moving cases swiftly through the system, rather than allowing them to languish for several years.
A weekly update of cases pertaining to the practice of insurance defence.
Showing posts with label Dismissal for Delay. Show all posts
Showing posts with label Dismissal for Delay. Show all posts
October 2, 2013
September 25, 2013
Dismissal for Delay at Status Hearings
The Court of Appeal has answered a question that arises fairly frequently in civil litigation: under what circumstances should an action be dismissed by the court following a status hearing?
In Faris v. Eftimovski, 2013 ONCA 360 (C.A.), the action was commenced in 2007 alleging damages from real estate transactions in 2003 and 2005. At the time of the status hearing in 2012, pleadings had not been finalized, no documentary productions had been exchanged, and no examinations for discovery had occurred. Two of the defendants had died. The status hearing judge dismissed the action, holding that there were unexplained delays in the action and there was non-compensable prejudice to the defendants since parties had died.
The Court of Appeal dismissed the appeal. Justice Tulloch distinguished between r. 24, which permits a defendant to take a deliberate procedural step to have the action dismissed, and r. 48, which allows the court to control the pace of litigation. The onus is on the plaintiff to demonstrate there was an acceptable explanation for the delay and that, if the action was allowed to proceed, the defendant would suffer no non-compensable prejudice.
There has been much discussion recently about lengthy delays in trial lists. Could the Court of Appeal be signalling an attempt to clear out cases that are slowing down the system?
In Faris v. Eftimovski, 2013 ONCA 360 (C.A.), the action was commenced in 2007 alleging damages from real estate transactions in 2003 and 2005. At the time of the status hearing in 2012, pleadings had not been finalized, no documentary productions had been exchanged, and no examinations for discovery had occurred. Two of the defendants had died. The status hearing judge dismissed the action, holding that there were unexplained delays in the action and there was non-compensable prejudice to the defendants since parties had died.
The Court of Appeal dismissed the appeal. Justice Tulloch distinguished between r. 24, which permits a defendant to take a deliberate procedural step to have the action dismissed, and r. 48, which allows the court to control the pace of litigation. The onus is on the plaintiff to demonstrate there was an acceptable explanation for the delay and that, if the action was allowed to proceed, the defendant would suffer no non-compensable prejudice.
There has been much discussion recently about lengthy delays in trial lists. Could the Court of Appeal be signalling an attempt to clear out cases that are slowing down the system?
August 21, 2013
The Onus at Status Hearings
The decision of Master Hawkins in 1745361 Ontario Ltd. v. St. Paul's Investments, 2013 ONSC 4642 (S.C.J.) reminds us that the onus at a status hearing is on the plaintiff.
In this case, there was a delay of between 13 and 25 months, depending on whether or not the plaintiff had served an affidavit of documents (the parties disputed whether it had been served). The plaintiff also failed to comply with the Master's Order that it deliver material for a status hearing.
Master Hawkins emphasized that Rule 48.14(13) places the onus on the plaintiff to persuade the court that the action should not be dismissed for delay. The plaintiff must demonstrate that he, she or it has an acceptable explanation for the delay, and that if the action is allowed to proceed, the defendant will suffer no non-compensable prejudice.
The plaintiff's affidavit used at the status hearing provided no explanation for the delay and was silent on the issue of prejudice to the defendant. On the contrary, the defendant delivered an affidavit setting out that two critical witnesses had disappeared. Accordingly, the plaintiff had failed to discharge its onus under r. 48.14(13) and the action was dismissed.
Although the onus is on the plaintiff, one has to assume that the affidavit filed by the defendant setting out the prejudice it suffered as a result of the delay was helpful to the Court.
In this case, there was a delay of between 13 and 25 months, depending on whether or not the plaintiff had served an affidavit of documents (the parties disputed whether it had been served). The plaintiff also failed to comply with the Master's Order that it deliver material for a status hearing.
Master Hawkins emphasized that Rule 48.14(13) places the onus on the plaintiff to persuade the court that the action should not be dismissed for delay. The plaintiff must demonstrate that he, she or it has an acceptable explanation for the delay, and that if the action is allowed to proceed, the defendant will suffer no non-compensable prejudice.
The plaintiff's affidavit used at the status hearing provided no explanation for the delay and was silent on the issue of prejudice to the defendant. On the contrary, the defendant delivered an affidavit setting out that two critical witnesses had disappeared. Accordingly, the plaintiff had failed to discharge its onus under r. 48.14(13) and the action was dismissed.
Although the onus is on the plaintiff, one has to assume that the affidavit filed by the defendant setting out the prejudice it suffered as a result of the delay was helpful to the Court.
March 29, 2010
Court to use a contextual approach in deciding whether to set aside a dismissal order
Finlay v. Van Paassen 2010 ONCA 204 (C.A.)
In this motor vehicle accident which occurred in October 2003, the Statement of Claim was issued in October 2004 and pleadings and discoveries were completed by September 2005. In January 2007 the registrar issued a Status Notice indicating that the action would be dismissed unless it was set down for trial within 90 days. Unfortunately, the Status Notice was not sent to the plaintiff. On April 30, 2007, unbeknownst to the plaintiff, the registrar issued an Order dismissing the action for delay. Plaintiff’s counsel first obtained a copy of the registrar’s Order in mid May 2007; however, no action was taken to set aside the Order until 2009.
The motion’s judge refused to set aside the dismissal Order, using the 4 factors cited by the Court of Appeal in Marche D’Alimentation Denis Theriault Ltee v. Giant Tiger Stores:
1. Explanation of the litigation delay;
2. Inadvertence in missing the deadline;
3. The motion is brought promptly;
4. No prejudice to the defendant.
For the motions judge, the third factor was decisive. He held that a delay of two years in bringing the motion was not an acceptable way of dealing with the circumstances.
The Court of Appeal held that the judge erred in taking two rigid an approach to the criteria. Instead, the Court should use a contextual approach in which the Court weighs all relevant considerations to determine a just result. The Court of Appeal allowed the appeal and set aside the registrar’s Order.
This decision appears to make it very difficult for defence counsel to succeed in opposing a motion to set aside a registrar’s dismissal Order. The Court is concerned with not allowing an innocent client to suffer the loss of the right to proceed by reason of the inadvertence of his/her solicitor.
In this motor vehicle accident which occurred in October 2003, the Statement of Claim was issued in October 2004 and pleadings and discoveries were completed by September 2005. In January 2007 the registrar issued a Status Notice indicating that the action would be dismissed unless it was set down for trial within 90 days. Unfortunately, the Status Notice was not sent to the plaintiff. On April 30, 2007, unbeknownst to the plaintiff, the registrar issued an Order dismissing the action for delay. Plaintiff’s counsel first obtained a copy of the registrar’s Order in mid May 2007; however, no action was taken to set aside the Order until 2009.
The motion’s judge refused to set aside the dismissal Order, using the 4 factors cited by the Court of Appeal in Marche D’Alimentation Denis Theriault Ltee v. Giant Tiger Stores:
1. Explanation of the litigation delay;
2. Inadvertence in missing the deadline;
3. The motion is brought promptly;
4. No prejudice to the defendant.
For the motions judge, the third factor was decisive. He held that a delay of two years in bringing the motion was not an acceptable way of dealing with the circumstances.
The Court of Appeal held that the judge erred in taking two rigid an approach to the criteria. Instead, the Court should use a contextual approach in which the Court weighs all relevant considerations to determine a just result. The Court of Appeal allowed the appeal and set aside the registrar’s Order.
This decision appears to make it very difficult for defence counsel to succeed in opposing a motion to set aside a registrar’s dismissal Order. The Court is concerned with not allowing an innocent client to suffer the loss of the right to proceed by reason of the inadvertence of his/her solicitor.
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