Court of Appeal Upholds Dismissal for Delay

The Court of Appeal’s decision in Erland v. Ontario, 2019 ONCA 689, shows that the five year deadline to set civil actions down for trial must be taken seriously.

A plaintiff who seeks to extend the deadline and prevent an action from being dismissed for delay has the burden of proving: (1) there is an acceptable explanation for the delay, and (2) allowing the action to proceed will not cause the defendant to suffer non-compensable prejudice.

The action in question was commenced in July 2013. The motion to extend the time to set the action down for trial was heard in October 2018.

The plaintiff relied mainly on two factors to explain the delay in the action.

First, the plaintiff said that his original lawyer had become ill, which required him to change counsel.

The motion judge rejected this explanation because, during the period in which plaintiff’s prior counsel was reportedly ill, that counsel was still bringing motions and appearing at case conferences. Further, the plaintiff had been represented by highly competent counsel since December 2015.

The Court of Appeal held that the motion judge’s rejection of this explanation was clear and open to him on the record.

Second, the plaintiff claimed that the defendant’s outstanding summary judgment motion had caused delay in setting the action down for trial. The summary judgment motion had proceeded at a slow pace.

The Court of Appeal stated that the motion judge did not err by suggesting that the plaintiff should have pressed ahead with scheduling discoveries despite the pending summary judgment motion.

In addition, the Court of Appeal said that the motion judge did not err by dismissing the action as against all the defendants even though three of the four defendants had consented to a timetable proposed by the plaintiff.

As a result, the Court of Appeal upheld the dismissal of the action.