Background Facts
This personal injury action arose from a motor vehicle–bicycle collision in 2011. The claim was commenced in 2013; productions served and discoveries concluded by 2015; mediation and undertakings completed by 2016; and set down for trial in December 2017. The matter was struck from the trial list in December 2018 when plaintiff’s counsel failed to complete the certification form he received. He began taking steps to complete and file the form in April 2019, not realizing that the matter had already been struck from the trial list or that the defendant’s lawyer had already discovered this fact. The plaintiff moved to restore the action in 2021, while the defendants first brought their cross-motion in 2023 to dismiss the action for delay. More delays on the part of ultimately the court and the defendant, caused a delay in the two motions being heard.
Test to Restore the Action
The test on a motion to restore a matter to the trial list requires the plaintiff to establish, on a balance of probabilities, a reasonable explanation for the delay and that the defendant would not suffer non-compensable prejudice if the action proceeds, Carioca’s Import & Export Inc. v. Canadian Pacific Railway Limited, 2015 ONCA 592 (CanLII).
Test to Dismiss the Action for Delay
The test for dismissal for delay requires the moving party to demonstrate that the delay is inordinate, inexcusable and has resulted in prejudice such that there is a substantial risk that a fair trial is no longer possible. “Inordinate delay” is measured as the period between the start of the action to the date the motion to dismiss is brought,Ticchiarelli v. Ticchiarelli, 2017 ONCA 1 (CanLII) at para 8.
Analysis
Length of delay:
- Although overall delay spanned approximately ten years, the period prior to setting the action down for trial (2013 to 2017), including pleadings, productions, discovery, undertakings, mediation and setting down for trial, had all proceeded at a reasonable pace.
- Setting the matter down for trial was genuine, not an attempt on the plaintiff to avoid disclosure obligations.
- The relevant delay of five years and seven months began after the plaintiff received the certification form in February 2018. This period was inordinately long, but did not require an explanation.
Excuse for delay:
- There was no excuse for the plaintiff’s failure to do anything for 14 months after receiving the certification form in February 2018. This ultimately led to the court striking the action from the trial list.
- But thereafter, the failure of the court to give accurate information to the plaintiff’s lawyer regarding the status of the matter, as well as the defendant’s failure to actually disclose to the plaintiff that they already knew the matter had been struck contributed to the delay from April 2019 until the certification form was submitted in June 2021 (26-month delay). The defendants were unfairly trying to take advantage of the delay they helped create.
- The next 13-month delay thereafter (June 2021 to July 2022) was attributed to the fault of the defendants for their delay in taking a position on the plaintiff’s motion and the court’s mishandling of the materials that were filed.
- Another 12-month delay (July 2022 to an aborted motion in July 2023) was the fault of the defendants, delaying correspondence about scheduling motion dates and then, finally, allowing the plaintiff to schedule the motion as though it was unopposed, then changing their position five weeks before the motion and serving their dismissal motion, resulting in the prior motion date needing to be vacated.
The defendants were responsible for 75% of the relevant delay after February 2018. The conduct of the court and defendants offset any concern the court had about the plaintiff’s failure to act in 2018 and was a reasonable explanation for the delay.
Assessment of Prejudice
Where there is delay, the plaintiff must overcome the rebuttable presumption that the defendants will suffer prejudice that cannot be compensated for. Prejudice due to delay is often cited as being due to the death or loss of certain witnesses and key documents, and the fading memories of the parties and witnesses.
Here, the court found:
- The defendants could not create prejudice by failing to do something they reasonably ought to have done. They were the major contributors to the delay they were now claiming to be prejudiced by. They had even been prepared to overlook any prejudice, until they changed their position on the plaintiff’s restore motion in June 2023.
- The plaintiff took recent steps to update medical and employment records, therefore key documents were not lost and could still be requested from the various medical facilities.
- Parties could refresh their memories using their discovery evidence.
- The defendants’ failure to obtain timely defence medical examinations prior to the motion, despite the opportunity to do so, was another oversight they were trying to now exploit. Further, given the threshold issue, it was still open to them to get their report on the eve of trial for a current report on the plaintiff’s condition on a threshold motion.
- Witnesses were apparently ready and available to testify. While the defendant’s lawyer complained she had lost touch with her insured client, she admitted she had never conducted a search. If the client was in fact lost, it would be the lawyer’s own fault for failing to keep in touch with her client.
The court found that the defendants had not suffered non-compensable prejudice from the delay and a fair trial could still take place. Accordingly, the plaintiff’s motion to restore the action to the trial list was granted and the defendants’ motion to dismiss the action for delay dismissed.
The court awarded the plaintiff partial indemnity costs, finding that although the defendants’ conduct warranted a costs award, the plaintiff’s early inactivity in 2018 and non-compliance with the judge’s timetable order justified a reduction of the award.
