Carioca’s Import & Export Inc. v. Canadian Pacific Railway Limited 2015 ONCA 592 (CanLII)

Released September 2, 2015 | CanLII

In August 2006, a fire spread from land owned by the respondent, Canadian Pacific Railway Ltd. (“CPR”), to land owned by the applicant, Carioca’s Import & Export (“Carioca”). Carioca alleged that the fire spread due to CPR’s negligence and claimed against CPR for the alleged damage that it caused. In June 2009, Carioca set the action down for trial, and in November of that year, Carioca attempted to obtain pre-trial and trial dates. CPR refused to consent to the dates on the basis that Carioca had failed to satisfy its undertakings. As a result, the Court office struck the action from the trial list (first time).By late 2010, most of Carioca’s undertakings were answered but some remained outstanding. In January 2012, the action was restored to the trial list by way of a motion and CPR and Carioca agreed to, and obtained, pre-trial and trial dates for September and November of 2013, respectively. CPR also requested that Carioca respond to the three outstanding undertakings. Carioca attempted, but was unable to acquire all of the necessary documents to satisfy the undertakings. In July 2013, both parties realized that the expert reports that Carioca and CPR were preparing, and which were to be based in part on tax documents that Carioca undertook to provide, would not be completed by the trial date. As such, Carioca and CPR agreed that the trial dates would have to be adjourned. In order to set new dates, the parties attended at to be spoken to court in October 2013. The presiding judge found the matter was not ready for trial and struck it from the trial list (second time). In December 2013, Carioca acquired, and provided to CPR, the remaining outstanding tax documents, except for Carioca’s tax return for 2012. Carioca agreed to provide CPR with the 2012 return once Carioca received it. In May 2014, Carioca brought a motion to restore the action to the trial list, which was heard and dismissed by the motions judge in August 2014.

In a unanimous decision the Ontario Court of Appeal overturned the motion judge’s decision, which denied the Plaintiff’s attempt to restore an action to the trial list under Rule 48.11. The Court reaffirmed that the two-part test for determining whether to restore an action to the trial list was: 1) whether the moving party provided a reasonable explanation for the delay in bringing the case to trial, and 2) whether the moving party demonstrated that the opposing party would suffer no non-compensable prejudice should the action be restored to the trial list.

The Court held that the motion judge misapplied this test, and then set out how the test should have been applied in respect of the facts of this case. With respect to the explanation for delay, the Court held that the analysis should be about a determination of whether the delay was reasonable, having regard to “the overall conduct of the litigation”, specifically “the overall progress of the action before it was listed for trial, the circumstances of how the action came to be struck from the trial list, and the conduct of all the parties” and the local practices and procedures. With respect to non-compensable prejudice, the Court said that the analysis was to consider the actual evidence of prejudice and that the mere passage of time does not create a presumption of prejudice.


Read the full decision on CanLII

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Einav practices exclusively in civil litigation. Her practice focuses on motor vehicle accident, accident benefits, occupier’s liability, slip/trip and falls, dog bites, medical malpractice, solicitor negligence, class action, employment and sexual assault claims.

During her free time, Einav takes improv and Spanish lessons. She enjoys being active, traveling, and spending time with family and friends.