Friday With Rogers Partners

At our weekly meeting this morning, Angie Bellehumeur discussed the case of Loukas v. Imperial Oil Limited, 2021 ONSC 1944. The defendant brought a motion to dismiss the action for failing to comply with a court-ordered litigation timetable that was peremptory to the plaintiffs and for delay.

Master Jolley did not agree that the action should be dismissed for breaching the timetable. Although the timetable required the action to be set down for trial by a certain date, it was unclear why this order had been made because a trial record had been previously filed.

Further, the provisions of the timetable dealing with bringing production motions and serving expert reports within specified timeframes did not mean that the plaintiffs were required to bring motions or serve expert reports. However, Master Jolley said that the plaintiffs are now precluded from bringing production motions or serving expert reports because the order was peremptory against them.

Master Jolley also declined to dismiss the action for delay. The evidence showed that the plaintiffs intended to move the action forward. Further, the plaintiffs rebutted the presumption of prejudice to the defendants.

This decision shows that, when requesting a court-ordered litigation timetable, defence counsel should consider seeking to have the order made peremptory to the plaintiff. That increases the likelihood of a breach of the timetable having significant consequences, including precluding the plaintiff from bringing motions and serving expert reports.