MDM Plastics Ltd. v. Vincor International Inc., (2015) 329 O.A.C. 202 (CA)

• Judge: Feldman, Watt and van Rensburg, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: June 16, 2014
• Jurisdiction: Ontario
• Citations: (2015), 329 O.A.C. 202 (CA);2015 ONCA 28

MDM Plastics Ltd. v. Vincor Intl. Inc. (2015), 329 O.A.C. 202 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. JA.027

MDM Plastics Limited (plaintiff/respondent) v. Vincor International Inc. (defendant/appellant)

(C58010; 2015 ONCA 28)

Indexed As: MDM Plastics Ltd. v. Vincor International Inc.

Ontario Court of Appeal

Feldman, Watt and van Rensburg, JJ.A.

January 21, 2015.

Summary:

Three years after a statement of claim was issued, the Registrar dismissed this action for delay. The plaintiff moved to set aside the dismissal.

A Master of the Ontario Supreme Court, in a decision reported at [2012] O.T.C. Uned. 3101, dismissed the motion. The plaintiff appealed.

The Ontario Divisional Court, per Lederer, J., in a decision reported at (2013), 303 O.A.C. 208, allowed the appeal and set aside the dismissal. The defendant appealed.

The Ontario Court of Appeal dismissed the appeal.

Practice - Topic 5360

Dismissal of action - Grounds - General and want of prosecution - Delay - Three years after a statement of claim was issued, the Registrar dismissed the action for delay - A Master dismissed the plaintiff's motion to set aside the dismissal - The plaintiff appealed - Lederer, J., allowed the appeal and set aside the dismissal - The Ontario Court of Appeal dismissed the defendant's appeal - The appeal turned on the proper application of the fourth factor (prejudice) in the test in Reid v. Dow Corning Corp. et al. (ONCA 2002) - The Master erred in referring to the passage of over five years since the occurrence of the events in issue and to the expiry of the limitation period as reasons for finding that the fourth Reid factor strongly favoured dismissing the motion - Any presumption of prejudice was rebutted by the defendant's own conduct indicating that there was no actual prejudice to its ability to defend the action as a result of the plaintiff's delay in prosecuting the action - Moreover, the defendant's interest in finality was not engaged in the circumstances of this case, because the plaintiff acted promptly in seeking to set aside the dismissal order.

Practice - Topic 5362

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

Cases Noticed:

Reid v. Dow Corning Corp. et al., [2001] O.T.C. 459; 11 C.P.C.(5th) 80 (Sup. Ct. Master), revd. (2002), 48 C.P.C.(5th) 93 (Ont. Div. Ct.), appld. [para. 11].

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. 11].

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

Wellwood v. Ontario Provincial Police et al. (2010), 262 O.A.C. 349; 102 O.R.(3d) 555; 2010 ONCA 386, refd to. [para. 16].

Finlay v. Van Paassen et al. (2010), 266 O.A.C. 239; 101 O.R.(3d) 390; 2010 ONCA 204, refd to. [para. 24].

1196158 Ontario Inc. v. 6274013 Canada Ltd. et al. (2012), 295 O.A.C. 244; 12 O.R.(3d) 67; 2012 ONCA 544, refd to. [para. 24].

806480 Ontario Ltd. v. RNG Equipment Inc. et al., [2014] O.A.C. Uned. 452; 2014 ONCA 488, refd to. [para. 25].

Armstrong v. McCall et al. (2006), 213 O.A.C. 229; 28 C.P.C.(6th) 12 (C.A.), refd to. [para. 26].

Aguas v. Rivard Estate (2011), 282 O.A.C. 39; 107 O.R.(3d) 142; 2011 ONCA 494, refd to. [para. 32].

Counsel:

Shawn Irving and Geoffrey Grove, for the appellant;

Lauren Sigal, for the respondent.

This appeal was heard on June 16, 2014, by Feldman, Watt and van Rensburg, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by van Rensburg, J.A., on January 21, 2015.