Prejudice and Dismissals for Delay

A plaintiff has five years to set an action down for trial, or else the action will be dismissed for delay by the registrar.

If the action cannot be set down within five years, the parties can consent to a timetable at least 30 days prior to the expiry of the five year deadline. Otherwise, the plaintiff must bring a motion for a status hearing under rule 48.14(5) of the Rules of Civil Procedure.

At a status hearing, the plaintiff must show cause as to why the action should not be dismissed for delay. The court considers two factors: (1) whether the plaintiff has demonstrated that there was an acceptable explanation for the delay, and (2) whether the defendant would suffer non-compensable prejudice if the action is allowed to proceed.

The issue of prejudice was recently considered in the case of Peakovic v. Ford Motor Company of Canada, 2019 ONSC 6763.

Justice Hebner stated that the prejudice at issue is the prejudice to the defendant’s ability to defend the action as a result of the plaintiff’s delay, not as a result of the sheer passage of time.

The onus is on the plaintiff to disprove prejudice. A defendant is not required to offer evidence of actual prejudice.

The Court of Appeal has indicated that the responsibility to move an action along lies chiefly with the plaintiff. However, the Court of Appeal has also stated that courts are entitled to consider the conduct of the defendant if the defendant asserts prejudice.

Justice Hebner noted that, if a defendant has been passive and has not displayed any sense of urgency in moving the matter forward, such passivity is inconsistent with the presence of prejudice.

In the case at issue, since the defendants did not show a sense of urgency to move the matter forward, Justice Hebner held that there was no presumed prejudice. She noted that the defendants made no complaint about the delay until the plaintiff brought the motion for a status hearing.

However, Justice Hebner was satisfied that the defendants suffered actual prejudice because some documents went missing. Her Honour stated that the defendants should not be required to defend the case without complete disclosure of all relevant documents.

As a result, the plaintiff’s action was dismissed.