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Dismissal for Delay

. M.J.H. v. Kenora-Rainy River Districts Child & Family Services

In M.J.H. v. Kenora-Rainy River Districts Child & Family Services (Ont CA, 2022) the Court of Appeal considered (and denied) a motion for intervenor status to argue that the normal test for Registrar's dismissal for delay under R48.14 should be varied in a case of historical sexual and physical abuse:
[3] In the appeal, the appellants ask this court to set aside the status hearing order of Fregeau J., in which he dismissed their action under r. 48.14 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 because they had not provided an acceptable explanation for their delay in prosecuting the action.

OTLA’s Argument

[4] The principles governing interventions are well known and were most recently summarized by Coroza J.A. in Foxgate Developments Inc. v. Jane Doe, 2021 ONCA 745. I will not repeat them.

[5] OTLA proposes to make a two-step argument if given leave to intervene. The first step is to argue that there is an “absurdity” in the Rules of Civil Procedure that works to the prejudice of those like the appellants whose claims are dismissed after a status hearing. An action can be dismissed for delay in three ways: on a defendant’s motion, under r. 24.01(2); by the registrar, under r. 48.14(1); or by a judge at a status hearing, under r. 48.14(5).

[6] OTLA argues that the absurdity arises because certain plaintiffs whose actions are dismissed may start another similar action but not others, such as these appellants. The distinction arbitrarily depends on the manner in which the action was dismissed. OTLA submits that plaintiffs whose actions are dismissed by a judge on a defendant’s motion or by the registrar may bring another similar action, as a result of rr. 24.05 and r. 48.14(9). But plaintiffs whose actions are dismissed at a status hearing do not have similar recourse. This outcome is especially absurd for plaintiffs whose claims for historical sexual and physical abuse are not subject to a limitation defence under the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, such as the appellants in this case.

[7] Assuming the first step of the argument prevails, OTLA proposes, as the second step argument, that this court should purge the absurdity by reformulating the test for dismissal by a status hearing judge. While the two-part test prescribed by this court in Faris v. Eftimovski, 2013 ONCA 360, 363 D.L.R. (4th) 111, at para. 32 would apply in most cases, it would not apply in cases advancing a claim for historical sexual and physical abuse for which there is no limitation defence. OTLA proposes that an action should only be dismissed at a status hearing if the plaintiff’s delay is contumelious or if the action is frivolous and vexatious.

[8] This proposed new test was expressed in oral argument but not in OTLA’s motion factum. The new test represents an advance on the policy argument in its factum:
In light of the amendments to the Ontario rules governing limitation periods for cases based on sexual assault, it appears irreconcilable that no time constraints apply to the commencing of an action but will apply to the procedural progress of the action.

When removing limitation periods for cases based on sexual assault, it was acknowledged that many survivors find the strength to come forward, but then recoil before they gather enough strength to come forward again to pursue their case. Recognition of this fact, and the desire to not force a survivor to explain their behaviour, was a large consideration when removing timelines for cases based on sexual assault.
[9] OTLA does not seek to file new evidence to support the policy argument just quoted but instead seeks to rely on the factual findings in abuse cases such as K.M. v H.M., 1992 CanLII 31 (SCC), [1992] 3 S.C.R. 6.
. 828343 Ontario Inc. v. Demshe Forge Inc.

In 828343 Ontario Inc. v. Demshe Forge Inc. (Div Ct, 2021) the Divisional Court considered an interesting case where through apparent inadvertence by counsel a default judgment was obtained (without the defendant being served of with an earlier assignment court date). It wasn't until some nine years after the initial service of the claim that the defendant become aware of it. The defendant's moved successfully to set aside the default judgment. On appeal the appellant/plaintiff sought re-instatement of the default judgment, and on cross-appeal the defendants sought (unusually to my mind) dismissal for delay.

In this quote the court considers the test for dismissal for delay at paras 69-101 (it was dismissed for delay).

. Canadian National Railway Company v. Kitchener (City)

In Canadian National Railway Company v. Kitchener (City) (Ont CA, 2015), a 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:
[12] 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), [2006] 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.

[16] 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), [1970] 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.
. Sickinger v. Krek

In Sickinger v. Krek (Ont CA, 2016) the Court of Appeal canvassed the principles applicable to dismissing a Claim for delay in bringing it to trial:
[29] The principles that apply on a motion to dismiss an action for delay were set out by this court in Langenecker v. Sauvé, 2011 ONCA 803 (CanLII), 286 O.A.C. 268. As noted in paras. 6-7 of that decision, an action may be dismissed for delay where the delay is (1) inordinate; (2) inexcusable; and (3) such that it gives rise to a substantial risk that a fair trial of the issues in the litigation will not be possible because of the delay.

[30] The jurisprudence provides guidelines for evaluating the three requirements:
• Inordinate: A court will measure the length of time from the commencement of the proceeding to the motion to dismiss to determine if the delay is inordinate: Langenecker, at para. 8; Ali v. Fruci, 2014 ONCA 596 (CanLII), 122 O.R. (3d) 517, at para. 11. When considering the delay, the court should remember that some cases will move slower than others because of the issues raised, the parties involved, and/or the nature of the action: Langenecker, at para. 8.

• Inexcusable: A court should consider the reasons offered for the delay and whether those reasons provide an adequate explanation, with regard to the credibility of the explanations, the explanations for individual parts of the delay, the overall delay, and the effect of the explanations considered as a whole: Langenecker, at paras. 9-10.

• Prejudice: The third factor considers the prejudice caused by the delay to a defendant’s ability to put forward its case for adjudication on the merits: Langenecker, at para. 11. An inordinate delay will give rise to a presumption of prejudice and, unless rebutted, that presumption may result in the action being dismissed: Armstrong v. McCall (2006), 2006 CanLII 17248 (ON CA), 213 O.A.C. 229 (C.A.), at para. 11. A defendant may also suffer, and demonstrate, case-specific prejudice: Langenecker, at para. 12.
[31] An order dismissing an action for delay is discretionary and entitled to deference from an appellate court: Ali, at para. 10. It should not be overturned unless the motion judge exercised his discretion unreasonably, acted on an incorrect principle, or made a palpable and overriding error on a factual matter: Ali, at para. 10; Canadian National Railway Company v. Kitchener (City), 2015 ONCA 131 (CanLII), 33 M.P.L.R. (5th) 173, at para. 14.
Here the claim at issue was a third party claim. While acknowledging the derivative nature of a third party claim the court held that it too could be dismissed for delay in the appropriate circumstances [see para 40-47].

. Home Town Financial (Timmins) Corporation v. Levesque

In Home Town Financial (Timmins) Corporation v. Levesque (Ont CA, 2020) the Court of Appeal sets out the test for dismissal of an action for delay:
[5] The motion judge correctly set out the test for dismissing an action for delay under Rule 48.14(7). A plaintiff must show: (1) an acceptable explanation for the delay; and (2) the defendant would not suffer any non-compensable prejudice if the action is allowed to proceed: Faris v. Eftimovski, 2013 ONCA 360, 42 C.P.C. (7th) 258, at para. 32; Kara v. Arnold, 2014 ONCA 871, 328 O.A.C. 382, at para. 8.
. Samuels v. Mai

In Samuels v. Mai (Ont CA, 2020) the Court of Appeal reversed a dismissal of an action for delay, when a related counterclaim would have persisted:
[27] In considering the motion to vary the timetable, the motion judge made reference to the test in Reid v. Dow Corning Corp. (2001), 11 C.P.C. (5th) 80 (Ont. S.C.), rev’d on other grounds (2002), 48 C.P.C. (5th) 93. (Ont. Div. Ct.), which was referred to by this court in Prescott v. Barbon, 2018 ONCA 504, 141 O.R. (3d) 616. The motion judge laid out the four Reid factors, namely: (1) the explanation for the litigation delay; (2) inadvertence in missing the deadline; (3) efforts to move promptly to set aside the dismissal; and (4) absence of prejudice to the defendant.

[28] The motion judge also cited to Jadid v. Toronto Transit Commission, 2016 ONSC 1176, aff’d 2016 ONCA 936, dealing with the application of the Reid factors in a situation where a party comes to the court seeking a “second lifeline”.

[29] Finally, the motion judge properly noted two points. First, it is not necessary to satisfy each part of the Reid test. A contextual approach requires the weighing of all relevant factors to determine what is just in the circumstances: Marché D’Alimentation Denis Thériault Ltée v. Giant Tiger Stores Limited, 2007 ONCA 695, 87 O.R. (3d) 660, at para. 20. Second, she was required to balance two principles, namely: (a) that actions should be determined on their merits if possible; and (b) that the timely and efficient resolution of disputes requires that rules be respected and enforced: 1196158 Ontario Inc. v. 6274013 Canada Limited, 2012 ONCA 544, 112 O.R. (3d) 67, at para. 18.

[30] Considering the Reid factors, and applying them with heightened scrutiny due to the appellant’s complete disregard of the timelines established by the Master, the motion judge found that the plaintiff:

1. had not provided a satisfactory explanation for the delay;

2. did not demonstrate that he failed to prosecute the action due to inadvertence;

3. did not move promptly to bring a motion to vary the timetable; and

4. had not proven that the defendants would not suffer prejudice.


[37] In Cardon Developments Ltd. et al. v. Butterfield, 1999 BCCA 642, 131 B.C.A.C. 197, at para. 5, Southin J.A. set aside an order dismissing a claim for delay because a counterclaim that arose out of the same events remained. Since the claim and counterclaim were “inextricably wound up one with the other” and the defendants were planning on proceeding on the counterclaim, the interests of justice would not be properly served if the claim was not also permitted to proceed.

[38] As in Cardon, it was not in the interests of justice to dismiss the appellant’s claim while permitting the respondents to litigate the very same issues in their counterclaim.


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