Released March 7, 2016 | Full Decision [CanLII]
The Appellant, Suzan Labelle, slipped and fell at a border crossing in Ontario. She commenced an action which proceeded very slowly until March 2012, when the court issued a status notice. The action was dismissed in June 2012. Although the Appellant’s counsel promptly obtained the Respondents’ position that they would not oppose the motion to set aside the dismissal order, more than two years passed before the Appellant’s counsel brought the motion. The motion judge refused to set aside the dismissal order citing prejudice to the Respondents due to delay. The Appellant appealed.
The Court of Appeal held that the motion judge erred in her assessment of prejudice to the Respondents. The Court of Appeal found that the Respondents were actually prejudiced because the crossclaim against one of the Defendants did not proceed and the Respondents lost the ability to defend themselves due to lack of evidence regarding maintenance. Prejudice to the defence existed regardless of the Appellant’s delay.
Prejudice arising from the defendants’ own failure to do something that they reasonably could have or should have done such as interviewing witnesses and conducting investigations cannot be the basis for refusing to set aside a dismissal for delay. The Respondents failed to take any steps to preserve or pursue any claims that they may have had against some of the other Defendants. The absence of evidence regarding maintenance was not a product of the Appellant’s delay.
The Court of Appeal found that without the finding of prejudice to the Respondents, the order ought to be set aside. Delay by itself is not sufficient to deny the Appellant’s request to reinstate an action. There was also no evidence that the Appellant’s delay was the product of a deliberate decision not to take any steps in the proceedings.
