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Courts - Inherent and Plenary Powers (2). Arapakota v. Imex Systems Inc. [dismissal for delay of an application]
In Arapakota v. Imex Systems Inc. (Ont CA, 2025) the Ontario Court of Appeal considered on appeal dismissing an application for delay, here "relying on the Superior Court’s inherent jurisdiction". I note that RCP R48.14 has express provisions for dismissal for delay of actions, but not applications - thus the need to rely on the court's inherent jurisdiction:D. THE LEGAL TEST ON A MOTION TO DISMISS FOR DELAY
[11] There is an inherent right of the court to dismiss a proceeding for delay. In Marché D’Alimentation Denis Thériault Ltée v. Giant Tiger Stores Limited, 2007 ONCA 695, 87 O.R. (3d) 660, at para. 24, Sharpe J.A. for the court held that:A court has inherent jurisdiction to control its own process, which “includes the discretionary power to dismiss an action for delay.” … “The power of a superior court to strike a matter for want of prosecution does not hinge on the niceties of the wording of the rules, but rather flows from the inherent power of the court to prevent an abuse of its own process.” In at least two cases, this court has characterized lengthy, unexplained delays as “an abuse of the court's process”. [Citations omitted.] See also Susin v. Baker and Baker, 2004 CanLII 12392 (Ont. C.A.), at para. 7, leave to appeal refused, [2004] S.C.C.A. No. 164; and Convay v. Marsulex Inc., 2002 CanLII 8446 (Ont. C.A.).
[12] This is true whether the proceeding is commenced as an action or an application. Otherwise, there would be no mechanism to dismiss an application for delay: see Gilmour v. Estate of Charles Wayne West, 2018 ONSC 2130, at paras. 46-48.
[13] An order dismissing a proceeding for delay will be justified where the delay is inordinate, inexcusable, and prejudicial to the respondents in that it gives rise to a substantial risk that a fair determination of the issues will not be possible: Langenecker v. Sauvé, 2011 ONCA 803, 286 O.A.C. 268, at paras. 4-7.
[14] “The inordinance of the delay is measured simply by reference to the length of time from the commencement of the proceeding to the motion to dismiss ... Memories fade and fail, witnesses become unavailable, and documents and other potential exhibits are lost. The longer the delay, the stronger the inference of prejudice to the defence case flowing from that delay”: Langenecker, at paras. 8-11. Accordingly, inordinate delay generates a presumption of prejudice: Langenecker, at para. 23.
[15] The motion judge’s order to dismiss an Application for delay is a discretionary order that is entitled to deference. The order will not be interfered with unless the motion judge exercised his or her discretion unreasonably or acted on a wrong principle: Ali v. Fruci, 2014 ONCA 596, 122 O.R. (3d) 517, at para. 10.
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G. ANALYSIS AND CONCLUSION
[22] We are satisfied that the motion judge made no error in deciding that there was inordinate delay as:a. The Rules of Civil Procedure, R.R.O. 1990, Reg. 194 provide for the administrative dismissal of actions that have not been set down for trial after five years, and these proceedings were brought by way of application, which “is expected to be a more expeditious avenue than an action” and procedures are more streamlined;
b. This matter was brought on the Commercial List, the very purpose of which is to “expedite the hearing and determination of matters involving issues of commercial law”: Deutsche Postbank AG v. Kosmayer, 2019 ONSC 6997, at para. 21 (quoting from the Commercial List Practice Direction), aff’d 2020 ONCA 410;
c. The appellants themselves argued before the motion judge that the matter “will not take a long time to resolve” and is not unduly complicated, such that it should and could have been resolved early; and
d. The motion judge noted that the Application “was first scheduled to be heard on October 25, 2018, just a few months after it commenced. A new hearing date could have been readily obtained after the adjournment of this hearing date. This was not done. Instead, [almost five years] passed without any activity.” [23] We are also satisfied that the motion judge made no error in concluding that the delay is inexcusable as:a. Mr. Arapakota maintains he periodically informed the respondents that he intended to proceed with the Application, but took no steps to advance the litigation;
b. Mr. Arapakota admitted that the delay in moving the Application forward was mainly caused by Mr. Arapakota focussing on other litigation;
c. Though Mr. Arapakota claims the appellants have been self represented since 2019, he filed no notice of intention to act in person until June 27, 2022; and
d. Contrary to Mr. Arapakota’s submission, COVID-19 was not really a factor in the context of this nearly-five-year delay in moving the matter forward, as the Commercial List was shut down for only a very short time. [24] Having drawn the conclusion that there was inordinate delay and that the delay was inexcusable, the motion judge properly noted that there was a presumption of prejudice that a fair hearing would no longer be possible if the matter proceeded: see Ticchiarelli v. Ticchiarelli, 2017 ONCA 1, at paras. 28, 32. . His Majesty the King in right of Ontario v. Dell
In His Majesty the King in right of Ontario v. Dell (Div Court, 2023) the Divisional Court considered whether the court could look to it's 'inherent jurisdiction' to justify orders which were issued prior to a statutory 'leave to sue' requirement (it couldn't):(2) Inherent Jurisdiction
[55] All agree that the scope of inherent jurisdiction does not extend to making orders that contravene a statute. The court may exercise its inherent jurisdiction even in respect of matters that are regulated by statute, “so long as the court can do so without contravening any statutory provision”: R. v. Caron, 2011 SCC 5, at para. 32 (emphasis in Caron); Stephen Francis Podgurski (Re), 2020 ONSC 2552, at para. 69.
[56] It is therefore unnecessary to address this issue. The Superior Court’s inherent jurisdiction cannot be used to contravene the automatic stay in s. 17 of the Act. . Turmel v. Canada (Attorney General)
In Turmel v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered (and dismissed) an appeal from a frivolous litigant declaration order [under s.40 FCA], here with supplementary terms regarding outstanding cost orders and "aiding or abetting others to initiate proceedings before that Court". In this quote the court endorses for this purpose a reliance on the 'plenary jurisdiction' of the statutory (not s.96 constitutional) Federal Court of Appeal:[12] Respecting the additional measures imposed on the appellant, the Application Judge correctly pointed out that the Federal Court has “plenary jurisdiction to impose additional requirements as may be necessary to prevent abuses of process” and that some litigants may require different measures and restrictions, including safeguards to “discourage them from finding other ways to continue their vexatious conduct” (Decision at paras. 49–50).
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