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Civil Litigation Cases - Dismissal for Delay - General (3). Juriansz v. Gurevich
In Juriansz v. Gurevich (Ont Div Ct, 2026) the Ontario Divisional Court dismissed an appeal, this brought against "the decision of Associate Justice .... that dismissed this action for delay and discharged the certificates of pending litigation (“CPLs”) ...".
Here the court considers R24.01 ['Rule 24 Dismissal of Action for Delay']:[23] Rule 24.01 of the Rules of Civil Procedure states:(1) A defendant who is not in default under these rules or an order of the court may move to have an action dismissed for delay where the plaintiff has failed,
(a) to serve the statement of claim on all the defendants within the prescribed time;
(b) to have noted in default any defendant who has failed to deliver a statement of defence, within thirty days after the default;
(c) to set the action down for trial within six months after the close of pleadings; or
(d) Revoked: R.R.O. 1990. Reg. 194, r. 24.01 (2).
(e) to move for leave to restore to a trial list an action that has been struck off the trial list, within thirty days after the action was struck off.
(2) The court shall, subject to subrule 24.02 (2), dismiss an action for delay if either of the circumstances described in paragraphs 1 and 2 of subrule 48.14 (1) applies to the action, unless the plaintiff demonstrates that dismissal of the action would be unjust. [Emphasis added.] [24] Rule 48.14(1) of the Rules of Civil Procedure states:(1) Unless the court orders otherwise, the registrar shall dismiss an action for delay in either of the following circumstances, subject to subrules (4) to (8):
1. The action has not been set down for trial or terminated by any means by the fifth anniversary of the commencement of the action.
2. The action was struck off a trial list and has not been restored to a trial list or otherwise terminated by any means by the second anniversary of being struck off. [25] In Faris v. Eftimovski, 2013 ONCA 360, 363 D.L.R. (4th) 111, at paras. 35-38, Tulloch, JJ.A., as he then was, stated:In the case of a motion to dismiss for delay brought by the defendant, the defendant must not be in default under the rules and the plaintiff must be delinquent by having failed to: serve the statement of claim on all defendants within the prescribed time; note in default any defendant who has failed to deliver a statement of defence within thirty days after the default; set the action down for trial within six months after the close of pleadings; or move for leave to restore an action to the trial list within thirty days after the action was struck off.
These are short timelines. As P.M. Perell & J.W. Morden describe in The Law of Civil Procedure in Ontario, 1st ed. (Markham: LexisNexis Canada, 2010), at p. 418, motions to dismiss for delay are rarely brought by defendants despite the fact that many actions do not advance within the time standards prescribed by rule 24.01. The authors explain that this is because judges and masters are reluctant to deny a plaintiff his or her day in court at a point that might be quite early in the proceedings.
Accordingly, a high threshold has been established to dismiss an action for delay under rule 24.01. The test has developed from a line of jurisprudence originating with the English case of Allen v. Sir Alfred McAlpine & Sons Ltd., [1968] 2 Q.B. 229 (C.A.). On a rule 24.01 motion, an action should not be dismissed unless: (a) the delay is intentional and contumelious; or (b) the plaintiff or his or her lawyers are responsible for the inexcusable delay that gives rise to a substantial risk that a fair trial might not now be possible: see Woodheath Developments Ltd. v. Goldman (2001), 2001 CanLII 28019 (ON SC), 56 O.R. (3d) 658 (Master), aff’d. (2003) 2003 CanLII 46735 (ON SCDC), 66 O.R. (3d) 731 (Div. Ct.), leave to appeal refused (2004) 44 C.P.C. (5th) 101 (C.A.).
In Armstrong v. McCall (2006), 2006 CanLII 17248 (ON CA), 213 O.A.C. 229, at para. 11, this court explicitly adopted the test in Woodheath to be applied on a rule 24.01 motion. [Emphasis in original.] ....
Issue #2: Did the Associate Justice err in failing to place the burden on the moving party to establish that it had complied with Order and the Rules of Civil Procedure?
[35] The appellant submits that the burden rests with the moving party on a motion for dismissal for delay to establish that the moving party is not in breach of an Order and the Rules of Civil Procedure. The appellant submits that the Associate Justice, in finding that placed this burden on the appellant, as the responding party to this motion, and erred in doing so. The appellant provides no authority for this submission. Their position makes little sense. As it did in this case, the moving party may assert that it has complied with all Orders and the Rules of Civil Procedure. It is for the responding party, to provide evidence of non-compliance if it wishes to take the position that the motion is barred for such reason. The Associate Justice did not err in law in placing the burden of the responding party to establish that the moving party was in breach of an Order or the Rules of Civil Procedure.
....
Issue #4: Did the Associate Justice err in finding that there was a substantial risk that a fair trial might not now be possible?
[40] In Woodheath Developments Ltd. v. Goldman, 2003 CanLII 46735 (ON SCDC), [2003] 66 O.R. (3d) 731 (Div. Ct.), Then J. stated at para. 4:It is presumed that memories fade over time, and an inordinate delay after the cause of action arose or after the passage of limitation period gives rise to a presumption of prejudice. Where there is a presumption of prejudice, the defendant need not lead actual evidence of prejudice and the action will be dismissed for delay unless the plaintiff rebuts the presumption. The presumption of prejudice may be rebutted by evidence that all documentary evidence has been preserved and the issues in the lawsuit do not depend on the recollection of witnesses or that all necessary witnesses are available with detailed recollection of the events. If the presumption is rebutted, then the action may still be dismissed if the defendant leads convincing evidence of actual prejudice. .... . Gutcher v. Welland Retirement Suites Limited [prejudice]
In Gutcher v. Welland Retirement Suites Limited (Ont CA, 2026) the Ontario Court of Appeal considered the civil litigation law of 'dismissal for delay', here addressing whether overt 'prejudice' was required to justify the dismissal:[12] Second, in this case, the motion judge was not required to specifically find prejudice. The motion judge correctly noted that the passage of time can, on its own, constitute prejudice: Barbiero v. Pollack, 2024 ONCA 904, 504 D.L.R. (4th) 652, at para. 15. The appellants assert that inordinate delay only gives rise to a presumption of prejudice and that the delay in this case was not so inordinate as to support this presumption. They argue that, in the circumstances, the respondents were required to prove that they were prejudiced by the delay. We do not accept these submissions.
[13] Inordinate delay does not merely give rise to a presumption of prejudice. Rather, such delay can itself be prejudicial: Barbiero, at para. 15. The appellants’ reliance on Langenecker v. Sauvé, 2011 ONCA 803, 286 O.A.C. 268 for this argument is misplaced. Moreover, the evidentiary burden is always on the party who initiates a claim to prove that inordinate delay in proceeding with the matter has not caused prejudice: Ticchiarelli v. Ticchiarelli, 2017 ONCA 1, at para. 29. The respondents were not required to lead any evidence of prejudice.
[14] In this case, the motion judge made a finding that the delay was inordinate. The appellants have not pointed to any error which would justify interfering with this finding. Further, the appellants led no evidence below to disprove prejudice. In this context, a finding of inordinate delay was determinative of the issue of prejudice.
[15] The appellants argue that the delay did not prejudice the respondents because the appellants had the burden of proof at trial. Any lost evidence, reduction in the quality of evidence, or failure to call expert evidence resulting from the delay would inure to the benefit of the respondents. We do not accept this submission. There is no basis to conclude that the delay would not have prejudiced the respondents’ ability to defend against the appellants’ claim. Lost evidence or the inability to call the best evidence does not only or primarily impact the party initiating the claim. Moreover, the onus was on the appellants to move the matter forward in an expeditious fashion. The respondents are entitled to know, at an early date, the case they have to meet. In this case, nothing was done between the examinations for discovery in 2019 and the motions in 2025 to articulate the case against the respondents. That is unfair to the respondents.
[16] As noted in Barbiero, at para. 15, a “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’.” Allowing a case to languish for years without taking any steps to move it forward evinces an attitude of complacency that is at odds with the goals of providing efficient, cost-effective access to justice for all users of the justice system. The court has inherent jurisdiction to control its own process to ensure fairness to all parties. We see no error in the manner in which the motion judge exercised his jurisdiction in this case. . Sergovich v. Trinca
In Sergovich v. Trinca (Ont Div Ct, 2026) the Ontario Divisional Court dismissed cross-appeals, here firstly brought against a decision "dismissing their motion to dismiss the action for delay", and wrt the cross-appeal seeking "leave to bring a cross-appeal on the cost decision".
Here the court considers the civil litigation law of dismissal for delay [RCP R48.14]:[26] The test to be applied on a motion for delay was summarized by the Court of Appeal in Armstrong v. McCall (2006), 2006 CanLII 17248 (ON CA), 213 O.A.C. 229 (C.A.), at para. 11:The principle to be applied on a motion to dismiss for delay is that the action should not be dismissed unless: (1) the default is intentional and contumelious; or (2) the plaintiff or his or her lawyers are responsible for the inexcusable delay that gives rise to a substantial risk that a fair trial might not now be possible. It is presumed that memories fade over time, and an inordinate delay after the cause of action arose or after the passage of a limitation period gives rise to a presumption of prejudice. Where there is a presumption of prejudice, the defendant need not lead actual evidence of prejudice and the action will be dismissed for delay unless the plaintiff rebuts the presumption. The presumption of prejudice may be rebutted by evidence that all documentary evidence has been preserved and the issues in the lawsuit do not depend on the recollection of witnesses or that all necessary witnesses are available with detailed recollection of the events. If the presumption is rebutted then the action may still be dismissed if the defendant leads convincing evidence of actual prejudice.
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