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CIVIL PROCEDURE - Disposition without trial - Dismissal of action - Delay or failure to prosecute

Thursday, February 01, 2018 @ 8:46 AM  


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Appeal by the plaintiff from a decision allowing the respondents’ appeal from a Master’s order reinstating the appellant’s action to the trial list. The action was commenced in 2007. It was dismissed administratively twice for delay and then reinstated on consent. Three court-ordered timetables imposed on the appellant were not met. In 2016, the parties agreed to a fourth timetable, as well as a consent order under Rule 48.14(4). The appellant was late in performing some of the steps in the fourth timetable, but managed to complete the required tasks and to bring a Rule 48.11(b) motion to reinstate the action before the relevant deadline. The respondents opposed the motion, but the Master reinstated the action to the trial list. The respondents appealed to a single judge of the Superior Court of Justice and the appeal was allowed. The appeal judge held that the Master erred by not considering the overall delay from the inception of the litigation. The appellant submitted that the appeal judge erred in allowing the appeal.

HELD: Appeal allowed. The order reinstating the action should not have been set aside. The Master was correct to give focus to the period following the 2016 consent order and timetable. Where delay had been addressed in a prior court order or consented to, it was any subsequent delay that required explanation. There was no delay subsequent to the order, as the appellant had met the imposed deadline. The Master was therefore correct to reinstate the action to the trial list. The essence of the consent order was to impose a deadline on the appellant in preparing for trial. It was necessarily implicit in the order the respondents agreed that, if the deadline was met, the action would be fit to be restored. Since there was no delay requiring explanation in this case, there was no need to inquire into prejudice. The Court further noted that although the focus was on subsequent delay during a motion to restore an action to the trial list after a Rule 48.14(4) order had been made, in circumstances where there was material delay in meeting the timetable, it would be appropriate to consider the entire history of delay in the action when deciding whether to reinstate. The history of delay and the difficulties it caused were relevant when considering whether the defendant would experience non-compensable prejudice if the action was restored to the trial list.

Stokker v. Storoschuk, [2018] O.J. No. 6, Ontario Court of Appeal, J.I. Laskin, G. Huscroft and D. Paciocco JJ.A., January 2, 2018. Digest No. TLD-January292018008