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Civil Litigation Dicta - Dismissal for Delay - General (2). Maillet v. Deren
In Maillet v. Deren (Ont CA, 2025) the Ontario Court of Appeal dismissed an interlocutory decision that denied the appellant's "motion for leave to issue a third party claim", here in dog bite (on a child) litigation.
Here the court considers the test for granting leave to issue a late third party claim:[4] The motion judge dismissed the motion on two grounds. One was that the motion judge found that the respondent would suffer prejudice if the appellant was granted leave. The prejudice found by the motion judge was the prospect of further delay in the proceeding; that the respondent would lose the benefit of his father as his litigation guardian; and that further “cross-examination of the child” would occur.
[5] The other ground found by the motion judge was the lack of merit in the proposed third party claim. While the motion judge alternated between saying that the proposed third party claim had no merit and that it had little merit, it is clear that the motion judge ultimately concluded that the proposed third party claim could not succeed.
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B. Discussion
(i) Assessing Prejudice Under r. 29.01(1.2)
[6] Rule 29.02(1.2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 reads:A third party claim may be issued at any time with the plaintiff’s consent or with leave, which the court shall grant unless the plaintiff would be prejudiced thereby. [7] The wording of the rule makes it clear that leave must be granted absent prejudice being shown. Unfortunately, the motion judge’s analysis of prejudice is flawed in a couple of respects. The motion judge treated the loss of the father as litigation guardian as a certainty. It is not. Similarly, there is no certainty, at this point, that there would be any further discovery of the respondent.
[8] Nevertheless, the realization that either, or both, of these events might happen in the future is still fairly considered as part of the prejudice analysis. So is the possibility that the father might feel conflicted, if the third party claim is made, such that he might choose to withdraw as litigation guardian. A new litigation guardian would then have to be found and brought up to speed. The later in the process that such a change takes place creates additional problems, including that the father has likely been privy to privileged conversations regarding trial tactics and strategy, all of which will have to be revisited with the new litigation guardian.
(ii) Delay in Issuing the Third Party Claim
[9] Delay is another factor. Delay that is inordinate and unexplained is presumed to cause prejudice: Family Delicatessen Ltd v. London (City), 2006 CanLII 5135 (Ont. C.A.), at para. 6. No explanation is offered by the appellant for the nine month delay in seeking to issue the third party claim. The appellant says that he is not obliged to offer any explanation, citing Tadiem Inc. v. Allied Properties Management LP, 2018 ONSC 7676, 42 C.P.C. (8th) 414, at para. 53, aff’d 2019 ONSC 2351, 43 C.P.C. (8th) 27 and Transpharm Canada Inc. v. MS Partners LLP, 2018 ONSC 375, at para. 16. I do not agree with that proposition. The presence or absence of an explanation for delay is always a factor to be considered when a party is seeking an extension of time. As I shall explain below, the test for an extension of time is the appropriate test to be applied when considering a motion under r. 29.02(1.2). The failure to offer an explanation weighs against the party seeking the extension of time. It also fails to rebut any presumed prejudice. My conclusion, in this regard, is consistent with authorities such as Bell Canada v. Olympia & York Developments Ltd. (1988), 1988 CanLII 2876 (BC SC), 26 C.P.C. (2d) 113 (Ont. H.C.), aff’d (1988), 30 C.P.C. (2d) 155 (C.A.), where Rosenberg J. said, at para. 24: “Accordingly, I am of the view that the fourth party claim should not be allowed as the reason for the more than two year delay has not been adequately explained.” See also Waterloo County Board of Education v. Mark, Musselman, McIntyre, Coombe et al.; J.T. Donald & Co. Ltd. et al. (Third Parties) (1982), 1982 CanLII 2072 (ON SC), 38 O.R. (2d) 61 (H.C.), at para. 2(c).
[10] As the motion judge recognized, the issue of delay, by itself, is not determinative in this case. By the time of the motion, the delay in bringing third party proceedings was eleven months. That may not be an excessive delay in a case that is only slightly more than two years old, but it is nonetheless problematic given that the appellant had months earlier indicated that he would be advancing such a claim. I also recognize that this is not a case, like some others, where prejudice arises from the fact that the case has been set down for trial or the case has a trial date that would be lost.[1]
[11] Nevertheless, delay is still a matter that factors into the overall consideration of prejudice. Two circumstances make delay of more consequence in this case. One is that this is a claim by a minor. The other is that this is a proceeding under the simplified rules, which are intended to make proceedings move more quickly.
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[23] As I have already said, lack of merit in the proposed step for which leave is sought is a relevant consideration in the prejudice analysis, especially when it is coupled with other ramifications that might arise that would add to that prejudice, as discussed above. Further, the fact that a party will incur additional time and expense in responding to a proposed step, which apparently will not advance the proceeding in any material way, is also a form of prejudice – prejudice that is, at least partly, non-compensable. . Barbiero v. Pollack [IMPORTANT - P duty to move along]
In Barbiero v. Pollack (Ont CA, 2024) the Ontario Court of Appeal dismissed a class action appeal, here where the primary issues were dismissal for delay [R24.01] and the related duty on a plaintiff to move cases along. These quotes are a call from the court to end chronic tolerance for plaintiff delay, and the case can be expected to be cited in similar dismissal for delay cases - and perhaps in other issues, such as costs(?):The obligation of an initiating party to move a proceeding to its final disposition
[6] I begin the analysis by recalling that this court repeatedly observes that the party-prosecution character of our current civil court adjudication system imposes on the party who initiates a claim the burden of moving a proceeding to its final disposition on the merits. As a result, the consequences of any dilatory regard for the pace of litigation falls on the initiating litigant, absent resistance from a defendant to proceed to a final disposition on the merits (of which there is no evidence on the facts of this case): 1196158 Ontario Inc. v. 6274013 Canada Ltd., 2012 ONCA 544, 112 O.R. (3d) 67, at paras. 28 and 29.
[7] Those principles and consequences apply to all civil proceedings, including actions that are certified as class proceedings: CPA, s. 35.
The legal principles applied by the motion judge.
[8] On the r. 24.01 motion brought by Dr. Pollack, the motion judge applied the principles set out in Langenecker v. Sauvé, 2011 ONCA 803, 286 O.A.C. 268, that an action will be dismissed for delay where the delay (i) is inordinate, (ii) inexcusable, and (iii) results in a substantial risk that a fair trial of the issues in the litigation will not be possible because of the delay, whether through an unrebutted presumption of prejudice or by evidence of actual prejudice to the defendant’s ability to have the case adjudicated on its merits.
[9] Ms. Barbiero does not contend the motion judge erred in identifying those as the governing principles; her complaint is that the motion judge misapplied them. Yet, I am troubled that a plaintiff could seek to find refuge in Langenecker to defend her failure to set down an action for trial more than 20 years after its commencement. In my view, that signals the Langenecker approach to delay is out of step with the contemporary needs of the Ontario civil court system.
[10] The principles summarized in Langenecker were drawn from a 1968 decision of the Court of Appeal of England and Wales, Allen v. Sir Alfred McAlpine & Sons, Ltd., [1968] 1 All E.R. 543 (C.A.), 556, which Langenecker quoted at para. 5. Much has changed in the civil court systems of both Ontario and England since 1968. Significantly, Langenecker pre‑dated the decision of the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87.
[11] Hryniak singled out for criticism an unhealthy characteristic of the contemporary Ontario civil justice system: its indifference to delay. In calling for a “culture shift” in the civil justice system, the court in Hryniak stated at para. 25:Prompt judicial resolution of legal disputes allows individuals to get on with their lives. But, when court costs and delays become too great, people look for alternatives or simply give up on justice. [12] Effecting a culture shift requires not only changing the entrenched culture of indifference to delay manifested by far too many litigants and their counsel, but also identifying and changing those judge-created rules or interpretative glosses that do not promote – and in some cases impede – the “prompt judicial resolution of legal disputes”.
[13] Under the Langenecker approach, delay or the passage of time on its own cannot constitute harm or prejudice sufficient to support the dismissal of an action. Langenecker merely treats the existence of delay as giving rise to a rebuttable presumption of prejudice – that is to say, the lingering of an action in our courts for over two decades may or may not result in a harm or prejudice. According to Langenecker, it all depends.
[14] I strongly question whether Ontario’s civil courts can achieve the culture shift demanded by the Supreme Court of Canada in Hryniak if they continue to cling to Langenecker’s lax attitude toward delay. The late Willard Z. Estey, former judge of the Supreme Court of Canada, succinctly described the social harm caused by such an attitude:Disputes, unlike wine, do not improve by aging. Many things happen to cause a cause and to parties in a dispute by the simple passage of time, and almost none of them are good. Delay in settlement or disposal of conflicting claims is … a primary enemy of justice and peace in the community.”[2] [15] As well, Langenecker’s tolerant attitude toward delay is out of step with a key element of the general principle for civil litigation set out in r. 1.04(1) of the Rules of Civil Procedure, namely to secure the “most expeditious ... determination of every civil proceeding on its merits”. A litigation culture based on Langenecker focuses more on justifying delay than on achieving the most expeditious determination of civil proceedings. To the extent that Langenecker denies that the passage of time, on its own, can constitute sufficient prejudice to dismiss an action for delay and not simply a rebuttable presumption of prejudice, it should not be followed.
[16] One must reflect seriously on the health of a litigation culture in which a party, such as the appellant, when brought before the courts, is not prepared to recognize that a delay of over 20 years in moving an action to its final adjudication on the merits is “inordinate” delay but is merely a situation where the “action has moved slowly”, as put in para. 9 of her factum and maintained at the hearing of the appeal. . NWG Investments Inc. v. Fronteer Gold Inc.
In NWG Investments Inc. v. Fronteer Gold Inc. (Ont CA, 2024) the Ontario Court of Appeal considered the law of dismissing an action for delay [under RCP 24.01]:[2] The motion judge correctly identified the governing legal test on a motion to dismiss for delay under r. 24.01 of the Rules of Civil Procedure: an action should not be dismissed unless the delay is (i) inordinate, (ii) inexcusable, and (iii) prejudicial to the defendants such that it gives rise to a substantial risk that a fair trial of the issues will not be possible: Ticchiarelli v. Ticchiarelli, 2017 ONCA 1, at para. 12. . Beshay v. Labib
In Beshay v. Labib (Ont CA, 2024) the Court of Appeal extensively considered (and ultimately dismissed) an appeal against of RCP 48.14(7)(a) ['Dismissal of Action for Delay - Status Hearing']:[7] Rule 48.14(1) directs the registrar to dismiss actions that have not been set down for trial within five years. However, in March 2020, the Superior Court of Justice suspended operations on account of the COVID-19 pandemic, which resulted in all filing deadlines being extended for six months. As a consequence, the r. 48.14(1) deadline in this case was extended from December 2021 to June 2022.
[8] In April 2022, the appellant’s counsel wrote to the respondents’ former counsel, seeking their consent to extend the time for setting the action down for trial, and proposing a litigation timetable. When the respondents’ former counsel did not respond, the appellant brought a motion for a status hearing under r. 48.14(5). This motion was originally returnable in June 2022, but it was adjourned several times. In September 2022, while his motion was still pending, the appellant served his affidavit of documents.
[9] The appellant’s motion was eventually heard in April 2023, and on May 15, 2023, the motion judge made an order under r. 48.14(7)(a) dismissing the action for delay.
B. Analysis
[10] The appellant appeals from the dismissal order, alleging that the motion judge failed to properly apply the established legal test for dismissing actions for delay.
[11] This legal test is well-settled: see 1196158 Ontario Inc. v. 6274013 Canada Limited, 2012 ONCA 544, 112 O.R. (3d) 67. The plaintiff must establish that there is “an acceptable explanation” for the delay, and must also demonstrate that the defendant will not suffer any non-compensable prejudice if the action is allowed to proceed. As Sharpe J.A. explained in 1196158 Ontario Inc., at paras. 32-33:The test is conjunctive, not disjunctive. Even if the plaintiff can provide a satisfactory explanation for the delay, the action will be dismissed if there would be prejudice to the defendant. And if the plaintiff is not able to provide a satisfactory explanation for the delay, it is still open to the judge to dismiss the action, even if there is no proof of actual prejudice to the defendant.
As I have noted, the goal of the civil justice system is [to] ensure "the just, most expeditious and least expensive determination of every civil proceeding on its merits". Consideration of actual prejudice focuses on the just determination of the dispute on its merits. The absence of actual prejudice does not automatically or inevitably trump the values of timeliness and efficiency. At some point, a party who has failed to respect the rules designed to ensure timely and efficient justice loses the right to have its dispute decided on the merits. If that were not the case, the rules and the timelines they impose would cease to have any meaning and any hope of ensuring timely and efficient justice would be seriously jeopardized. [12] It should be noted that the Rules previously required dilatory plaintiffs to bring a motion under r. 48 if an action had not been set down for trial within two years, but this deadline has now been extended to five years. This affects the balance between the competing policy goals of having civil actions decided on their merits and of “ensur[ing] timely and efficient justice”.
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[23] As stated in 1196158 Ontario Inc., at paras. 28-29, a “party who commences the proceeding bears primary responsibility for its progress”. However, a defendant’s passivity in the face of inaction by the plaintiff may be a relevant factor in the contextual analysis.
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[27] In my view, the motion judge’s finding that the respondents would be prejudiced by the delay if the action continued is entitled to significant appellate deference. Even if I were to accept that the respondents ought to have done more to preserve the missing banking records, I see no basis to interfere with the motion judge’s finding that key defence witnesses’ memories have faded over time. As Sharpe J.A. noted in 1196158 Ontario Inc., at para. 43:The more time that passes, the more difficult it is to defend the case. Memories fade and even if documents are not lost, their significance becomes shrouded. [28] In any event, it was the appellant’s burden to satisfy both branches of the applicable legal test. Even if the motion judge had not found that the respondents would suffer prejudice from the delay, she would still have been obliged to dismiss the action on the basis of her finding that the appellant had not provided any credible explanation for the delay, let alone an acceptable explanation.
[29] Finally, I do not agree that the motion judge failed to take a proper “contextual approach” to the test under r. 48.14.
[30] The main thrust of the appellant’s argument is that in April 2022, when he sought the respondents’ consent to extend the five-year r. 48.14 deadline, he proposed a litigation timetable in which the action would have been set down for trial in May 2023. The appellant argues in his factum:It is an appealable error for the learned Motions Judge to determine that requiring the Defendant to endure an extension of the set down date by 17 months was a less desirable result than depriving the Plaintiff of his day in Court for a hearing on the merits.
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A proper contextual approach would have recognized that, while delay should not be countenanced, an Action such as this which has not been inordinately delayed beyond its fifth anniversary should not be dismissed, but rather should have an expedited timeline imposed. [31] The question of whether the balance of competing policy interests favoured granting the appellant an indulgence, despite his failure to comply with the time limits in the Rules, was a discretionary judgment call for the motion judge to make. Contrary to the appellant’s argument, there is no presumption that actions that have not been set down for trial by the five-year mark should be allowed to continue if there will not be “inordinate” further delay, even when the plaintiff has not provided an acceptable explanation for the delay. Rather, as this court noted in Burgess v. University Health Network, 2022 ONCA 105, at para. 11:Rule 48.14 requires that courts balance the objective of resolving disputes on their merits with the objective of resolving disputes in a timely and efficient manner in order to maintain public confidence in the administration of justice. The role of the judge presiding over a status hearing is to ensure that justice is served for all of the litigants: 1196158 Ontario Inc., at para. 41. [32] I am not persuaded that the motion judge erred in finding that the balance in this case tipped in favour of dismissing the action, bearing in mind that this was a discretionary decision that is entitled to deference.
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