Carioca's Import & Export Inc. v. CPR,

• Jurisdiction: Ontario
• Judge: Sharpe, Lauwers and van Rensburg, JJ.A.
• Neutral Citation: 2015 ONCA 592
• Citation: 2015 ONCA 592,(2015), 337 O.A.C. 175 (CA),128 OR (3d) 143,337 OAC 175,128 O.R. (3d) 143,(2015), 337 OAC 175 (CA),337 O.A.C. 175
• Date: 31 March 2015
• Court: Court of Appeal (Ontario)

Carioca's Import & Export Inc. v. CPR (2015), 337 O.A.C. 175 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. SE.002

Carioca's Import & Export Inc. (plaintiff/appellant) v. Canadian Pacific Railway Limited (defendant/respondent)

(C59354; 2015 ONCA 592)

Indexed As: Carioca's Import & Export Inc. v. Canadian Pacific Railway Ltd.

Ontario Court of Appeal

Sharpe, Lauwers and van Rensburg, JJ.A.

September 2, 2015.

Summary:

In August 2006, a fire that began on lands owned by Canadian Pacific Railway Limited (CPR) spread to the business premises of Carioca's Import & Export Inc., resulting in alleged damage and loss. In March 2007, Carioca commenced an action against CPR, claiming damages of $125,000 for negligence. The action was struck from the trial list in 2009, restored in January 2012, and struck again in October 2013. Carioca moved to have the action restored to the trial list.

The Ontario Superior Court, in a decision with neutral citation 2014 ONSC 4818, dismissed the motion. Carioca appealed.

The Ontario Court of Appeal allowed the appeal and restored the action to the trial list.

Practice - Topic 5360

Dismissal of action - Grounds - General and want of prosecution - Delay - The Ontario Court of Appeal stated that "A motion to restore an action to the trial list is not a 'blame game', where counsel should be required or encouraged to take a defensive stance and justify their conduct of the litigation on a month-by-month basis. Rather, in assessing whether a plaintiff's explanation for delay is reasonable, a motion judge should consider the overall conduct of the litigation, in the context of local practices, which can vary quite widely between jurisdictions. Practices for scheduling pre-trial conferences and trials differ throughout the province, because they must meet the needs of particular regions and courthouses. ... The ability to remove and restore actions to a trial list is part of the function of the local court to manage the timing and progress of civil actions commenced within its jurisdiction in the context of its available resources. If the test to restore an action to the trial list is applied too rigidly, 'speak to' and other attendances where matters may be struck will become lengthy and contentious, preventing efficient case management. Therefore a proper delay analysis does not consider the conduct of an action in a vacuum." - See paragraphs 46 to 48.

Practice - Topic 5360

Dismissal of action - Grounds - General and want of prosecution - Delay - The Ontario Court of Appeal stated that "While this court has stated frequently that the plaintiff bears the primary responsibility for moving a case forward, it has also acknowledged that the conduct of a defendant is a factor, especially where a plaintiff encounters some resistance when trying to move the action along ... The suggestion that it is normal and acceptable for a defendant, if not to actively delay, to simply wait for the plaintiff to make the next move, may be based on a conventional view of litigation strategy. The objectives of timely and efficient access to justice, and effective use of court resources require all parties to play their part in moving actions forward, and for counsel to act in a way that facilitates rather than frustrates access to justice ... For these reasons, although the burden of proof on the motion is on the plaintiff, the conduct of all parties in relation to the litigation is relevant in determining whether to restore an action to the trial list." - See paragraph 53.

Practice - Topic 5360

Dismissal of action - Grounds - General and want of prosecution - Delay - The plaintiff commenced a negligence action against the defendant in March 2007 - The action was struck from the trial list in 2009, restored in January 2012, and struck again in October 2013 - The plaintiff moved to have the action restored to the trial list - The motion judge dismissed the motion - The Ontario Court of Appeal allowed the plaintiff's appeal - The motion judge erred in concluding that the plaintiff had not provided an acceptable explanation for the delay - He focussed almost exclusively on the plaintiff's conduct and did not consider the overall dynamics of the litigation - This resulted in an imbalanced view of at least four aspects of the plaintiff's actions - First, the case was ready to proceed to trial at the time the motion was heard - Second, the action sought to be restored had been summarily struck from the trial list by a judge's order at an appearance where the parties were jointly seeking new pre-trial and trial dates, and not at the defendant's request - Third, the plaintiff never lost sight of the need to restore the action to the trial list, had brought the motion reasonably promptly after the action was struck, and had no motive to delay the action - Finally, the defendant had not indicated any serious concerns about the pace of the litigation until it opposed the motion to restore the action to the trial list - See paragraphs 51 to 56.

Practice - Topic 5360

Dismissal of action - Grounds - General and want of prosecution - Delay - The plaintiff commenced a negligence action against the defendant in March 2007 - In 2009, the defendant refused to execute a Certification Form to Set Pre-Trial and Trial Dates on the basis that the plaintiff still had outstanding undertakings from discovery - As a result, the action was struck from the trial list - It was restored to the trial list in January 2012 following an unopposed motion by the plaintiff, but struck again in October 2013 on the court's own motion - The plaintiff moved to have the action restored to the trial list - The motion judge dismissed the motion - The plaintiff appealed - The Ontario Court of Appeal, having found that motion judge's decision was based on erroneous legal principles, allowed the appeal and restored the action to the trial list - The plaintiff made slow but steady progress in fulfilling the undertakings and none were outstanding when the motion to restore the action was brought - The delay in obtaining an expert report, which was not a condition of setting down an action, was due to the plaintiff's financial constraints - Further, the defendant initially consented to an adjournment, but later changed its position on the motion to restore - The plaintiff provided an acceptable explanation for the delay - Speculation that a case might depend in part on oral evidence, coupled with the assumption that witnesses' memories generally faded over time, was insufficient to demonstrate prejudice - The plaintiff's witnesses, including experts, were available for trial, as were transcripts of examinations for discovery - The plaintiff demonstrated that no non-compensable prejudice would result from the action being restored - See paragraphs 61 to 77.

Practice - Topic 5360.1

Dismissal of action - Grounds - General and want of prosecution - Excuse for delay - [See first, third and fourth Practice - Topic 5360 ].

Practice - Topic 5362

Dismissal of action - Grounds - General and want of prosecution - Prejudice to defendant - The Ontario Court of Appeal discussed the test to be applied on a motion to restore an action to the trial list - The court stated that "The issue of prejudice is a factual question. The plaintiff bears the onus of demonstrating that the defendant would suffer no non-compensable prejudice if the action were allowed to proceed. The mere passage of time cannot be an insurmountable hurdle in determining prejudice, otherwise timelines would become inflexible and explanations futile. A defendant is not required to offer evidence of actual prejudice. However, the court is entitled to consider the conduct of the defendant in light of its assertions of prejudice. ... it is an error for a judge considering dismissal for delay to fail to consider the respondent's conduct in relation to the question of prejudice" - See paragraphs 49 and 50.

Practice - Topic 5362

Dismissal of action - Grounds - General and want of prosecution - Prejudice to defendant - The plaintiff commenced a negligence action against the defendant in March 2007 - The action was struck from the trial list in 2009, restored in January 2012, and struck again in October 2013 - The plaintiff moved to have the action restored to the trial list - The motion judge dismissed the motion, finding that the defendant would be prejudiced based on an assumption that the passage of time would impair the memory of a missing witness - The Ontario Court of Appeal allowed the plaintiff's appeal - The motion judge made his decision respecting prejudice despite being sceptical that the missing witness was a key witness - The motion judge was required to consider the evidence in deciding the prejudice issue - The action was ready for trial, oral discoveries were completed relatively soon after the events in question, transcripts were available, and the documents authored by the missing witness were available - The defendant did not seem to be seriously concerned about delay - Its consent to the January 2012 motion to restore the action, and its passivity in October 2013 when the court struck the action of its own motion, both suggested that no non-compensable prejudice would result from the action being restored to the trial list - See paragraphs 57 to 60.

Practice - Topic 5362

Dismissal of action - Grounds - General and want of prosecution - Prejudice to defendant - [See fourth Practice - Topic 5360 ].

Practice - Topic 5384.1

Dismissal of action - Application or motion for dismissal - Where action struck off trial list - [See third and fourth Practice - Topic 5360 ].

Practice - Topic 5390.2

Dismissal of action - Application or motion for dismissal - Evidence and proof - [See second Practice - Topic 5360 ].

Cases Noticed:

Nissar v. Toronto Transit Commission (2013), 309 O.A.C. 8; 115 O.R.(3d) 713; 2013 ONCA 361, refd to. [para. 3].

Kerr v. CIBC World Markets Inc. et al. (2013), 316 O.A.C. 192; 2013 ONSC 7685 (Div. Ct.), refd to. [para. 4].

1196158 Ontario Inc. v. 6274013 Canada Ltd. et al. (2012), 295 O.A.C. 244; 112 O.R.(3d) 67; 2012 ONCA 544, refd to. [para. 4].

Fuller (H.B.) Co. et al. v. Rogers et al. (2015), 330 O.A.C. 378; 2015 ONCA 173, refd to. [para. 6].

Faris v. Eftimovski et al. (2013), 306 O.A.C. 264; 2013 ONCA 360, refd to. [para. 43].

Kara et al. v. Arnold et al. (2014), 328 O.A.C. 382; 2014 ONCA 871, refd to. [para. 43].

Hryniak v. Mauldin, [2014] 1 S.C.R. 87; 453 N.R. 51; 314 O.A.C. 1; 2014 SCC 7, refd to. [para. 52].

MDM Plastics Ltd. v. Vincor International Inc. (2015), 329 O.A.C. 202; 2015 ONCA 28, refd to. [para. 57].

Counsel:

Robin B. Cumine, Q.C., and Kirryn G. Hashmi, for the appellant;

Christopher J. Rae, for the respondent.

This appeal was heard on March 31, 2015, before Sharpe, Lauwers and van Rensburg, JJ.A., of the Ontario Court of Appeal. van Rensburg, J.A., delivered the following judgment for the court on September 2, 2015.