Ontario Court Of Appeal Sends Message To Plaintiffs Who Do Not Litigate Diligently

August 21st, 2013 by Dan Stone

This blog is written by our law summer student, Ira Marcovitch.

For those who lament that the wheels of justice could not turn any slower, the Ontario Court of Appeal agrees, and is trying to do something about the situation. In two companion decisions, the Court of Appeal dismissed actions for substantial delays and sent a clear message to plaintiffs about the need to litigate vigorously and swiftly.

The first case, Faris v. Eftimovski, a convoluted story of twists and turns, can be materially summed as such. After a property transfer gone wrong, the former property owner sued his real estate agent. After 4 years of litigious to-ing and fro-ing, little progress had been made. By the date of the status hearing, pleadings had yet to be finalized, no discovery had taken place and no documentary evidence had been exchanged. The only material change that had taken place was the defendant real estate agent and the plaintiff’s lawyers had passed away. The motions judge was not satisfied with the plaintiff’s explanation for the delay, held that the death of two main actors had prejudiced the defendants, and accordingly dismissed the action.

Ontario Court Of Appeal Sends Message To Plaintiffs Who Do Not Litigate DiligentlyThe second, Nissar v. Toronto Transit Commission, arose from an accident involving a TTC bus, on which the plaintiff was a passenger, and another vehicle. The statement of claim was issued in 2001 and in 2002, examinations for discovery took place. However, the plaintiff never ordered a transcript of the driver’s examination, the implication of which was that there existed no official record of his statements. The parties attempted to mediate unsuccessfully and, in 2004, the matter was set down for trial. Shortly thereafter, the matter was struck from the trial list. It wasn’t until 2012, seven years later, that the plaintiff moved to have the matter restored to the trial list. Dumbfounded by the delay, and not impressed by the explanation, the judge refused to restore the action to the trial list and instead dismissed it. As well, she noted that the delay had prejudiced the defendant, as the TTC driver could hardly be expected to remember the events of 13 years prior.

On appeal, both plaintiffs argued that the respective judges had erred in placing the onus on them to explain the egregious delays. They argued that the proper test is that found under rule 24.01 of the Rules of Civil Procedure, which allows a defendant to dismiss the action for delay and places the onus of proof thereon. The Court disagreed. It held that Rule 24 and Rule 48 (which covers dismissals for administrative delays and which was relied on in dismissing both actions) “each offer distinct means that may lead to the same end.”

As far as distinct means go, the Court noted that Rule 48 motions, which encompass status hearings and adding matters to trial lists, place the onus on the plaintiff to show why the matter should be allowed to proceed. Conversely, for Rule 24 motions the onus is on the defendant to show why the matter should be dismissed.  In reaching their conclusion, the Court enunciated a new, two-step test for status hearings and restoring a matter to the trial list:

1. The plaintiff must show that there is a reasonable explanation for the delay; and
2. That there is no non-compensable prejudice that would result to the defendant if the action were to continue.

Beyond the new test enunciated for status hearing and restoring a matter to the trial list, these companion cases send a clear message to litigants and lawyers alike. They represent the latest warnings from an appellate court (of which there have been at least a few in recent memory) that punishment will be meted to those who don’t take all reasonable steps to diligently pursue their actions.

Ontario court of appeal sends message to plaintiffs who do not litigate diligently, and given that the emerging trend from the Ontario court of appeal has been to dismiss cases such as these, it is possible that judges and masters will now err on the side of dismissing actions where the necessity and reasonableness of the delay is questionable.  While these rulings are certainly not the panacea for the delays that plague Ontario’s civil justice system, they should serve to prevent the revival of actions that have lay dormant for no good reason.

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