Jay A. Stolberg

The appellants, Orllyn Loney and Yvonne Prouty, appealed the dismissal of their motion to amend their statement of claim to correctly name the driver and owner of a tractor-trailer (Michael George Alexander Mills and 564242 Ontario Limited, also known as Liftlock) as defendants, replacing "John Doe" and "ABC Corporation".

The motion was brought almost ten years after the accident and over three years after the action was set down for trial.

The motion judge denied leave, finding no sudden change in circumstances and non-compensable prejudice due to the lengthy, unexplained delay.

The Court of Appeal upheld the motion judge's decision, finding no palpable and overriding error in her exercise of discretion.

The court emphasized the importance of adhering to limitation periods and the actual prejudice caused by the delay, including the loss of timely discovery opportunities for the proposed defendants.

This case involves a three-way insurance company priority dispute concerning accident benefits for a minor, Alyssia Lafontaine-Greenwood, who was 17 at the time of her single-vehicle accident.

The dispute, initially decided by an Arbitrator, centered on whether Gore Mutual (father's insurer), Dominion (mother's insurer), or Certas (driver's insurer) had primary responsibility.

The Arbitrator found Alyssia equally dependent on both parents, making Gore and Dominion jointly responsible.

Gore and Dominion appealed this decision.

The court upheld the Arbitrator's finding, applying the "palpable and overriding error" standard of review for mixed fact and law, and affirmed that non-obligatory contributions from a third party (grandmother) should not be factored into the dependency equation.

The appellant sought to set aside a motion judge's order dismissing her motion to set aside the administrative dismissal of her appeal.

The appeal had been administratively dismissed twice due to the appellant's repeated failure to meet perfection deadlines, despite extensions.

The Court of Appeal dismissed the appellant's motion, finding no basis to interfere with the motion judge's discretion, noting the extensive delay, the unconvincing justification for non-perfection, and the lack of proof for the appellant's claims of material tampering or respondent non-cooperation.

Following dismissal of the plaintiffs’ action after a status hearing, the successful defendants sought costs.

The court determined that partial indemnity costs were appropriate because there were no offers to settle affecting the scale of costs.

The litigation involved a relatively simple breach of contract and negligence claim concerning alleged defects in a house purchased by the plaintiffs, with limited procedural activity over several years before dismissal.

The court also held that additional disbursements arising from a defendant’s decision to retain out‑of‑town counsel should not be borne by the unsuccessful plaintiffs.

Each successful defendant was awarded a fixed all‑inclusive costs amount.

At a status hearing under Rule 48.14 of the Rules of Civil Procedure, the plaintiffs were required to show cause why their action should not be dismissed for delay after it was struck from the trial list and not restored within 180 days.

The court applied the two-part test requiring a reasonable explanation for delay and proof that the defendants would not suffer non-compensable prejudice.

Although the court found little evidence of actual prejudice given earlier discovery evidence and expert reports, the plaintiffs failed to provide any reasonable explanation for prolonged inactivity in prosecuting the action.

Significant unexplained delays occurred both before and after the action was struck from the trial list.

The court concluded that the plaintiffs failed to satisfy their onus and dismissed the action for delay.