Joshua Ross Freeman

This endorsement addresses case management issues in two related Ontario actions brought by 2124811 Alberta Ltd. against Formtec International Inc., Enin Solutions Inc., and, in the second action, three individual defendants.

The court considers the relationship between the Ontario actions and a related Alberta action, the defendants' request to pause Ontario proceedings pending an Alberta jurisdiction application, and the plaintiff's motion to consolidate the Ontario actions.

The court orders the Ontario actions to proceed without delay, directs the parties to agree on a timetable, and encourages resolution of the consolidation motion and consideration of whether the Alberta action should continue.

At a status hearing under Rule 48.14(13) of the Rules of Civil Procedure, the plaintiff was required to show cause why its action should not be dismissed for delay.

The court held that the plaintiff bore the onus of demonstrating both an acceptable explanation for litigation delay and that the defendants would suffer no non-compensable prejudice if the action proceeded.

The plaintiff filed only a brief affidavit that failed to explain extended periods of inactivity and provided no evidence addressing prejudice.

Evidence from the remaining defendants established that key witnesses could no longer be located, creating significant litigation prejudice.

The court concluded the plaintiff failed to meet either branch of the test and dismissed the action for delay with costs.