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Civil Procedure - Dismissal for Delay (against Plaintiff) - Set Aside

Ali v Fruci (Ont CA, 2014)

In this case the Court of Appeal sets out the test for setting aside a dismissal against a plaintiff for delay in listing their action for trial, where the delay was not intentional. In the Superior Court the dismissal is obtained under R24 on motion of a party, while in the Small Claims Court dismissal is automatic under R11.1 ("Dismissal by Clerk").:
(b) The test

[9] This is not a case where the plaintiff intentionally delayed the action or showed a disdain for the court’s processes. Thus, to have Ali’s action dismissed for delay, the respondents had to meet a three-part test. On their motion they had to show:
• the delay was inordinate or unreasonable;

• the delay was inexcusable;

• the delay gave rise to a substantial risk that a fair trial of the issues in the litigation would not be possible
See Langenecker v. Sauvé, 2011 ONCA 803 (CanLII), 2011 ONCA 803 at para. 7.

[10] The motion judge’s order dismissing this action for delay is a discretionary order. It is therefore entitled to the usual deference from an appellate court. We are not justified in interfering with the order unless the motion judge exercised her discretion unreasonably or acted on a wrong principle.

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