Barrister and Solicitor
Legal Writing and Research
Civil Procedure - Dismissal for Delay
Canadian National Railway Company v. Kitchener (City) (Ont CA, 2015)
In this 25-year old case the Court of Appeal quoted with approval and commented as follows on the test for dismissal of a proceeding for plaintiff delay:
 The motion judge concluded that there was a strong presumption of prejudice, given that 25 years had elapsed since the action was started. He applied the test set out in Armstrong v. McCall, 2006 CanLII 17248 (ON CA),  O.J. No. 2055 (C.A.), at para. 11:
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. 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......
 A presumption of prejudice flows from lengthy delay. Memories fade, witnesses become unavailable and documents may be lost. As observed in Clairmonte v. Canadian Imperial Bank of Commerce, 1970 CanLII 470 (ON CA),  3 O.R. 97 (C.A.), at p. 116, “[w]hile the presumption will speak as a barely audible caution immediately after a limitation period has expired, it may command with increasing imperativeness on the passage of a substantial time, depending on the cause of action.” Use of the presumption is particularly appropriate when dealing with a 25 year old action relating to events in the period from 1924 to 1958. There is an inherent difficulty in proving that there is relevant evidence from long ago which no longer exists. Given the lengthy delay in this case, the motion judge did not err in finding that there was a presumption of prejudice. Further, he did not err in concluding that CNR had failed to rebut this presumption. He did not require CNR to meet the impossible standard of establishing that the evidence of every conceivable person who might have had any relevant observation had been preserved. Instead, he identified key individuals, such as the retired foreman for the Public Utilities Commission and a former employee of Hogg Fuel, who likely had some relevant information but whose evidence was no longer available. It was open to the motion judge to conclude on the record before him that CNR had not rebutted the presumption of prejudice flowing from the very long delay. Although, as noted by the appellant, some of the witnesses became unavailable during the period of excused delay, that is, before 2003, the record also shows that a number became unavailable during the period of unexcused delay, that is, after 2003.