C. Kopach

The moving parties filed a supplementary motion record and revised draft order following a previous endorsement that noted deficiencies in their materials.

The court found the new materials remained deficient, citing incomplete documents, missing schedules, duplicate email authorizations, and spelling errors.

The court declined to grant the requested relief but provided the moving parties one final opportunity to file a proper and complete consent and draft order.

The defendants brought motions to dismiss the plaintiff's action for delay.

The action, arising from a 2005 real estate purchase, was struck from the trial list in 2010.

The court found over six years of unexplained delay by the plaintiff and his counsel.

Applying the test for dismissal for delay, the court concluded the delay was intentional and contumelious, and alternatively, inordinate and inexcusable, resulting in a substantial risk that a fair trial would not be possible.

The action was dismissed.

The trustee in bankruptcy brought a motion for directions concerning responsibility for an appeal from an order dismissing a civil action previously commenced by the bankrupt.

The trustee had concluded that prosecuting the underlying actions would likely result in a net liability to the estate and the parties agreed the actions should be returned to the bankrupt pursuant to s. 40(1) of the Bankruptcy and Insolvency Act.

The dispute concerned whether the trustee or the bankrupt should pursue the appeal of the dismissed action after the trustee conveyed its interest back to the bankrupt.

The court held that the trustee had taken reasonable steps to preserve the action prior to dismissal and had not failed in its duties.

Once the action was returned to the bankrupt, responsibility for prosecuting the appeal fell to the bankrupt, who was also ordered to reimburse the trustee’s reasonable legal fees incurred in filing a placeholder appeal.