Langenecker v. Sauvé et al.,
| Jurisdiction | Ontario |
| Judge | Doherty, Armstrong and Hoy, JJ.A. |
| Neutral Citation | 2011 ONCA 803 |
| Citation | (2011), 286 O.A.C. 268 (CA),2011 ONCA 803,[2011] OJ No 5777 (QL),286 OAC 268,[2011] O.J. No 5777 (QL),(2011), 286 OAC 268 (CA),286 O.A.C. 268 |
| Date | 01 December 2011 |
| Court | Court of Appeal (Ontario) |
Langenecker v. Sauvé (2011), 286 O.A.C. 268 (CA)
MLB headnote and full text
Temp. Cite: [2011] O.A.C. TBEd. DE.023
Peter Langenecker, Joanne Langenecker, Elisabeth Langenecker, and Franz Langenecker (plaintiffs/appellants) v. Dr. S. Sauvé, Dr. P. Luke, Dr. White, Nurse K. Kiegel R.N., University Hospital and London Health Association (defendants/respondents)
(C53425; 2011 ONCA 803)
Indexed As: Langenecker v. Sauvé et al.
Ontario Court of Appeal
Doherty, Armstrong and Hoy, JJ.A.
December 19, 2011.
Summary:
In June 1995, the plaintiff and others sued health care providers, which included two doctors, for malpractice. In September 2010, the two doctors moved to dismiss the action for delay.
The Ontario Superior Court granted the motion. The plaintiff appealed.
The Ontario Court of Appeal dismissed the appeal.
Practice - Topic 5360
Dismissal of action - Grounds - General and want of prosecution - Delay - In June 1995, the plaintiff and others sued health care providers, which included two doctors, for malpractice - In September 2010, the two doctors moved to dismiss the action for delay - The Ontario Court of Appeal affirmed a decision that granted the motion - The court held as follows: "The motion judge correctly stated the test to be applied on a motion to dismiss for delay. The chronology of the relevant events was not in dispute. The motion judge considered the explanations offered by counsel for the [plaintiffs] for the various delays and he considered the [defendants'] prejudice claim. The motion judge decided that the delay was inexcusable. That conclusion was reasonably open to him. The motion judge also considered and rejected the submission that the nature and reliability of the evidence still available (medical and hospital records), and the narrow factual issue on which liability would turn, rebutted the presumption of prejudice to the defendants flowing from the long delay. The motion judge rejected this submission because he found there were potential sources of evidence other than the medical records that were lost to the defendants through the passage of time. The motion judge's finding that the [plaintiffs] had not rebutted the presumption of prejudice was not unreasonable" - See paragraphs 1 to 26.
Cases Noticed:
Saikaley v. Commonwealth Insurance Co. et al. (1978), 21 O.R. (2d) 629 (H.C.), consd. [para. 4].
Armstrong v. McCall et al. (2006), 213 O.A.C. 229 (C.A.), consd. [para. 4].
De Marco et al. v. Mascitelli et al., [2001] O.T.C. Uned. 846; 14 C.P.C.(5th) 384 (Sup. Ct.), consd. [para. 4].
Allen v. Sir Alfred McAlpine & Sons Ltd., [1968] 1 All E.R. 543 (H.L.), consd. [para. 4].
Tanguay v. Brouse, [2010] O.A.C. Uned. 378; 2010 ONCA 73, consd. [para. 11].
New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, consd. [para. 15].
Counsel:
Alan L. Rachlin, for the appellants;
Julie Parla and Gillian Kerr, for the respondents, Sauvé and Luke.
This appeal was heard on December 1, 2011, by Doherty, Armstrong and Hoy, JJ.A., of the Ontario Court of Appeal. The following decision of the Court of Appeal was delivered by Doherty, J.A., and released on December 19, 2011.
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...action for delay, "even when the relevant rules do not mandate it." Lauwers J.A. recalled the Court's decision in Langenecker v. Sauvé, 2011 ONCA 803, in which Doherty J.A. observed that an order dismissing an action for delay is a "severe remedy" but nonetheless sometimes the only order "t......
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...where the delay is: (1) inordinate; (2) inexcusable; and (3) prejudicial to the defendant’s right to a fair trial: Langenecker v. Sauvé, 2011 ONCA 803, at para. 7. A plaintiff must provide an explanation that satisfies the court that the delay was not intentional and has not prejudiced the ......
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...to provide a sworn affidavit containing a clear and meaningful explanation of the reasons for the delay. [74] In Langenecker v Sauvé, 2011 ONCA 803, Doherty JA said that “[t]he requirement that the delay be ‘inexcusable’ requires a determination of the reasons for the delay and an assessmen......
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...or availability of witnesses. 28 There is a well-established presumption of prejudice set out in case law. In Langenecker v. Sauve, 2011 ONCA 803 (Ont. C.A.), at para. 11, the Court of Appeal describes how that presumption arises as “Prejudice is inherent in long delays. Memories fad......
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Nanak Homes Inc. v. Arora et al. and Nanak Homes Inc. v. Kamco et al., 2019 ONSC 6654
...where the delay is: (1) inordinate; (2) inexcusable; and (3) prejudicial to the defendant’s right to a fair trial: Langenecker v. Sauvé, 2011 ONCA 803, at para. 7. A plaintiff must provide an explanation that satisfies the court that the delay was not intentional and has not prejudiced the ......
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Van Aert v. Sweda Farms Ltd. (Best Choice Eggs), 2018 ONCA 831
...courts use to make the discretionary determination whether there is an adequate explanation for the delay: see Langenecker v. Sauvé, 2011 ONCA 803, 286 O.A.C. 268, at para. 15; Faris v. Eftimovski, 2013 ONCA 360, 363 D.L.R. (4th) 111, at para. 22. It was open to the motion judge, on the evi......
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Top 5 Civil Appeals From The Court Of Appeal (October 2014)
...action for delay, "even when the relevant rules do not mandate it." Lauwers J.A. recalled the Court's decision in Langenecker v. Sauvé, 2011 ONCA 803, in which Doherty J.A. observed that an order dismissing an action for delay is a "severe remedy" but nonetheless sometimes the only order "t......
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Court Of Appeal Summaries (January 3 January 6, 2017)
...v. Ticchiarelli, 2017 ONCA 1 Keywords: Civil Procedure, Dismissal for Delay, Rules of Civil Procedure, Rule 24.01, Langenecker v. Sauvé, 2011 ONCA 803, Wallace v Crate's Marine Sales Ltd., 2014 ONCA 671 W&W Fiberglass Tank Co. Profit Sharing Plan v. Bartholomew, 2017 ONCA 4 Keywords: Eq......
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Court Of Appeal Summaries (August 18 To August 22)
...examined the motion judge's application of the three-part test for dismissing an action for delay is as set out in Langenecker v Sauvé, 2011 ONCA 803, (1) Was the delay inordinate or unreasonable? (2) Was the delay inexcusable? (3) Did the delay gave rise to a substantial risk that a fair t......