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?

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.