1196158 Ontario Inc. v. 6274013 Canada Ltd. et al., (2012) 295 O.A.C. 244 (CA)

• Judge: Laskin, Sharpe and Epstein, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: June 07, 2012
• Jurisdiction: Ontario
• Citations: (2012), 295 O.A.C. 244 (CA);2012 ONCA 544

1196158 Ont. v. 6274013 Can. (2012), 295 O.A.C. 244 (CA)

MLB headnote and full text

Temp. Cite: [2012] O.A.C. TBEd. SE.001

1196158 Ontario Inc. (plaintiff/appellant) v. 6274013 Canada Limited, Rob Kumer, CB Richard Ellis Limited, John LaFontaine, Karen Pickernell, Carl Lavoie, William Neilson Limited, Toronto Hydro Corporation, Toronto Hydro-Electric System Ltd. and Toronto Hydro Energy Services Inc. (defendants/respondents)

(C54452; 2012 ONCA 544)

Indexed As: 1196158 Ontario Inc. v. 6274013 Canada Ltd. et al.

Ontario Court of Appeal

Laskin, Sharpe and Epstein, JJ.A.

August 21, 2012.

Summary:

In September 2006, the plaintiff brought an action for breach of contract and misrepresentation. In January 2010, a status hearing took place. It was agreed that required discoveries be completed and the action set down for trial by June 2011. This did not happen. In September 2011, a new status hearing took place.

The Ontario Superior Court, in a decision reported [2011] O.T.C. Uned. 5410, dismissed the action for delay. The plaintiff appealed.

The Ontario Court of Appeal dismissed the appeal.

Practice - Topic 5360

Dismissal of action - Grounds - General and want of prosecution - Delay - The Ontario Court of Appeal discussed the principles relating to the dismissal of actions for delay - See paragraphs 17 to 21.

Practice - Topic 5360

Dismissal of action - Grounds - General and want of prosecution - Delay - In September 2006, the plaintiff brought an action for breach of contract and misrepresentation - In January 2010, a status hearing took place - It was agreed that required discoveries be completed and the action set down for trial by June 2011 - This did not happen - In September 2011, a new status hearing took place - The status hearing judge dismissed the action for delay, ruling that the January 2010 status hearing gave the plaintiff a "lifeline" that it did not respect - The Ontario Court of Appeal upheld the decision - The plaintiff did not emerge from the January 2010 status hearing with a clean slate and it was open to the status hearing judge to consider the entire history of the delay - See paragraphs 22 to 26.

Practice - Topic 5362

Dismissal of action - Grounds - General and want of prosecution - Prejudice to defendant - The Ontario Court of Appeal held that even if the plaintiff could provide a satisfactory explanation for his delay in prosecuting his action, the action would be dismissed if there was prejudice to the defendant - If the plaintiff were not able to provide a satisfactory explanation for the delay, the action could still be dismissed, even if there was no proof of actual prejudice to the defendant - See paragraphs 31 to 44.

Practice - Topic 5390.2

Dismissal of action - Application or motion for dismissal - Evidence and proof - In September 2006, the plaintiff brought an action for breach of contract and misrepresentation - In January 2010, a status hearing took place - It was agreed that required discoveries be completed and the action set down for trial by June 2011 - This did not happen - In September 2011, a new status hearing took place - The status hearing judge dismissed the action for delay - The defendant appealed, arguing that the status hearing judge erred in finding that the defendants believed that the plaintiff was not pursuing the action, absent an affidavit in support of this conclusion - The Ontario Court of Appeal dismissed the appeal - It was open to the status hearing judge to infer from the plaintiff's dilatory action that there was a factual foundation for counsel's submission - See paragraphs 27 to 30.

Cases Noticed:

Finlay v. Van Paassen et al. (2010), 266 O.A.C. 239; 101 O.R.(3d) 390; 2010 ONCA 204, consd. [para. 19].

Wellwood v. Ontario Provincial Police et al. (2010), 262 O.A.C. 349; 102 O.R.(3d) 555; 2010 ONCA 386, consd. [para. 28].

Hamilton (City) v. Svedas Koyonagi Architects Inc. et al. (2010), 271 O.A.C. 205; 104 O.R.(3d) 689; 2010 ONCA 887, consd. [para. 28].

Bolohan v. Hull, [2012] O.A.C. Uned. 100; 2012 ONCA 121, consd. [para. 29].

Khan v. Sun Life Assurance Co. of Canada, [2011] O.A.C. Uned 565; 2011 ONCA 650, consd. [para. 32].

Riggitano v. Standard Life Assurance Co. et al., [2009] O.T.C. Uned. B56 (Sup. Ct.), affd. [2010] O.A.C. Uned. 35; 2010 ONCA 70, consd. [para. 34].

Broniek-Harren et al. v. Osborne, [2008] O.T.C. Uned. 862 (Sup. Ct.), consd. [para. 37].

Sepehr Industrial Mineral Exports Co. v. Alternative Marketing Bridge Enterprises Inc. et al., [2007] O.T.C. Uned. D76; 86 O.R.(3d) 550 (Sup. Ct.), consd. [para. 38].

Blencoe v. Human Rights Commission (B.C.) et al., [2000] 2 S.C.R. 307; 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161; 2000 SCC 44, consd. [para. 39].

Marché d'alimentation Denis Thériault ltée et al. v. Giant Tiger Stores Ltd. (2007), 247 O.A.C. 22; 87 O.R.(3d) 660; 2007 ONCA 695, consd. [para. 39].

Authors and Works Noticed:

Archibald, Todd, Killeen, Gordon, and Morton, James C., Ontario Superior Court Practice (2011), p. 1205 [para. 34].

Ontario, Ministry of the Attorney General, Civil Justice Reform Project, Summary of Findings and Recommendations (2007), p. 1 [para. 40].

Perell, Paul M., and Morden, John W., The Law of Civil Procedure in Ontario (2010), p. 423 [para. 31].

Pitel, Stephen G.A., Revival after Dismissal for Delay: Marché d'alimentation Denis Thériault ltée v. Giant Tiger Stores Ltd. (2008), 34 Adv. Q. 240, generally [para. 40].

Counsel:

William Pepall and Louise Moher, for the appellant;

J. Schatz and D. Holden, for the respondents, 6274013 Canada Limited and Rob Kumer;

Sonja Williams, for the respondents, Toronto Hydro Corporation, Toronto Hydro-Electric System Ltd. and Toronto Hydro Energy Services Inc.;

S. Pettipiere, for the respondent, CB Richard Ellis Limited;

Christiaan Jordaan, for the respondent, William Neilson Limited.

This appeal was heard on June 7, 2012, by Laskin, Sharpe and Epstein, JJ.A., of the Ontario Court of Appeal. The following decision of the Court of Appeal was delivered by Sharpe, J.A., and released on August 21, 2012.