Kara et al. v. Arnold et al.,

• Jurisdiction: Ontario
• Judge: Blair, Pepall and Lauwers, JJ.A.
• Neutral Citation: 2014 ONCA 871
• Citation: 2014 ONCA 871,(2014), 328 O.A.C. 382 (CA),[2014] OJ No 5818 (QL),328 OAC 382,328 O.A.C. 382,(2014), 328 OAC 382 (CA),[2014] O.J. No 5818 (QL)
• Date: 05 December 2014
• Court: Court of Appeal (Ontario)

Kara v. Arnold (2014), 328 O.A.C. 382 (CA)

MLB headnote and full text

Temp. Cite: [2014] O.A.C. TBEd. DE.019

Shafik Kara, Ireme Kara, Madatali Kara and Brother's Collision & Refinishing (plaintiffs/appellants) v. Roland Arnold , Highway Pharmacy Inc., Rashid Keshavjee and Gulshan Keshavjee (defendants/ respondent )

(C58860; 2014 ONCA 871)

Indexed As: Kara et al. v. Arnold et al.

Ontario Court of Appeal

Blair, Pepall and Lauwers, JJ.A.

December 5, 2014.

Summary:

The plaintiffs' medical negligence action against the defendant doctor was dismissed for delay under rule 48.14 following a status hearing. The action had been commenced in 2000 and the doctor's statement of defence was served in 2002. The plaintiffs appealed.

The Ontario Court of Appeal dismissed the appeal.

Practice - Topic 5360

Dismissal of action - Grounds - General and want of prosecution - Delay - The plaintiffs' medical negligence against the defendant doctor was commenced in 2000 - The doctor served his statement of defence in 2002 - Rule 48.14 provided that if an action was not set down for trial within two years after the first defence was filed, the registrar shall serve a status hearing notice advising that the action would be dismissed for delay if not set down for trial within 90 days - A status hearing was held in April 2014 - The plaintiffs had not set the matter down for trial at that point, nor did they do so between the time of the notice and the status hearing - The judge, in dismissing the action, found that the plaintiffs did not provide an adequate explanation for the inordinate delay and that, if the action were permitted to proceed, the defendant would suffer non-compensable prejudice - The Ontario Court of Appeal dismissed the plaintiffs' appeal - The decision was discretionary and entitled to considerable deference - The judge considered all of the relevant factors and properly balanced the competing values of timely compliance with the rules to ensure efficiency in the justice system and society's interest in the resolution of disputes on their merits - Given all of the factors, including the 11 year delay between the statement of defence and the status hearing, the judge's decision was open to him on the record and there was no basis to interfere with it.

Practice - Topic 5360.1

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

Practice - Topic 5362

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

Cases Noticed:

Khan v. Sun Life Assurance Co. of Canada, [2011] O.A.C. Uned 565; 1 C.C.L.I.(5th) 183; 2011 ONCA 650, refd to. [para. 8].

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. 8].

Faris v. Eftimovski et al. (2013), 306 O.A.C. 264; 353 D.L.R.(4th) 111; 2013 ONCA 360, refd to. [para. 8].

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, refd to. [para. 10].

Scaini v. Prochnicki et al. (2007), 219 O.A.C. 317; 85 O.R.(3d) 179; 2007 ONCA 63, refd to. [para. 12].

Counsel:

Paul R. Sweeny and Adam J. Huff, for the appellants;

Kosta Kalogiros, for the respondent, Roland Arnold.

This appeal was heard on November 26, 2014, before Blair, Pepall and Lauwers, JJ.A., of the Ontario Court of Appeal.

On December 5, 2014, Blair, J.A., released the following judgment for the Court of Appeal.