Simon's Megalomaniacal Legal Resources

Civil Litigation - Extending Time - Setting Down for Trial

. Levant v. Gilbert Studios Limited

In Levant v. Gilbert Studios Limited (Div Ct, 2021) the Divisional Court considered the time extension request for setting a trial down under R48.14:

[7] There is no dispute that the test under Rule 48.14 was that the plaintiff had to demonstrate that: a) there was an acceptable explanation for the delay in prosecuting the action; and, b) the defendants would suffer non-compensable prejudice. That is the test from Faris v. Eftimovski, 2013 ONCA 360. There is also no dispute that the Master purported to apply this test.

. Erland v. Ontario

In Erland v. Ontario (Ont CA, 2019) the Court of Appeal stated the legal test for extending the time for setting a case down for trial:

[4] It is common ground that the motion judge correctly identified the applicable law. Subrules 48.14(5)-(7) provide that where the plaintiff seeks to extend the deadline to set an action down for trial, the plaintiff/moving party must show cause why the action should not be dismissed for delay. In order to meet this burden the plaintiff must prove that (1) there is an acceptable explanation for the delay and (2) that allowing the action to proceed would not cause the defendant(s) to suffer non-compensable prejudice: Kara v. Arnold, 2014 ONCA 871 (CanLII), 328 O.A.C. 382, at para. 8. This test is conjunctive.