The plaintiffs moved under Rule 48.11 of the Rules of Civil Procedure to restore an action to the trial list after it had been struck from the list for several years, while the defendants brought a cross‑motion to dismiss the action for delay.
Applying the conjunctive test articulated by the Court of Appeal in Nissar v. Toronto Transit Commission, the court held that the plaintiffs bore the burden of providing an acceptable explanation for the litigation delay and demonstrating that the defendants would suffer no non‑compensable prejudice if the action proceeded.
The plaintiffs argued that related litigation justified holding the matter in abeyance, but the court found no evidence that opposing counsel had been informed of such an intention and concluded the action had effectively been neglected for nearly four years.
Although the court found that the defendants had not established actual prejudice, the plaintiffs failed to satisfy the first branch of the Nissar test.
The motion to restore the action to the trial list was therefore dismissed.
