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Civil Procedure - Dismissal for Delay - Generally

Civil Procedure - Dismissal for Delay - Third Party Claim

Sickinger v. Krek (Ont CA, 2016)

In this case the Court of Appeal canvassed the principles applicable to dismissing a Claim for delay in bringing it to trial:
[29] The principles that apply on a motion to dismiss an action for delay were set out by this court in Langenecker v. Sauvé, 2011 ONCA 803 (CanLII), 286 O.A.C. 268. As noted in paras. 6-7 of that decision, an action may be dismissed for delay where the delay is (1) inordinate; (2) inexcusable; and (3) such that it gives rise to a substantial risk that a fair trial of the issues in the litigation will not be possible because of the delay.

[30] The jurisprudence provides guidelines for evaluating the three requirements:
• Inordinate: A court will measure the length of time from the commencement of the proceeding to the motion to dismiss to determine if the delay is inordinate: Langenecker, at para. 8; Ali v. Fruci, 2014 ONCA 596 (CanLII), 122 O.R. (3d) 517, at para. 11. When considering the delay, the court should remember that some cases will move slower than others because of the issues raised, the parties involved, and/or the nature of the action: Langenecker, at para. 8.

• Inexcusable: A court should consider the reasons offered for the delay and whether those reasons provide an adequate explanation, with regard to the credibility of the explanations, the explanations for individual parts of the delay, the overall delay, and the effect of the explanations considered as a whole: Langenecker, at paras. 9-10.

• Prejudice: The third factor considers the prejudice caused by the delay to a defendant’s ability to put forward its case for adjudication on the merits: Langenecker, at para. 11. An inordinate delay will give rise to a presumption of prejudice and, unless rebutted, that presumption may result in the action being dismissed: Armstrong v. McCall (2006), 2006 CanLII 17248 (ON CA), 213 O.A.C. 229 (C.A.), at para. 11. A defendant may also suffer, and demonstrate, case-specific prejudice: Langenecker, at para. 12.
[31] An order dismissing an action for delay is discretionary and entitled to deference from an appellate court: Ali, at para. 10. It should not be overturned unless the motion judge exercised his discretion unreasonably, acted on an incorrect principle, or made a palpable and overriding error on a factual matter: Ali, at para. 10; Canadian National Railway Company v. Kitchener (City), 2015 ONCA 131 (CanLII), 33 M.P.L.R. (5th) 173, at para. 14.
Here the claim at issue was a third party claim. While acknowledging the derivative nature of a third party claim the court held that it too could be dismissed for delay in the appropriate circumstances [see para 40-47].

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