Nora Kharouba

The appellants appealed an order dismissing their action for delay against two respondents under Rule 48.14(7) of the Rules of Civil Procedure.

The motion judge found the appellants failed to provide an acceptable explanation for a four-year delay, rejecting their "wait and see" approach tied to another delayed action.

The Court of Appeal upheld the dismissal, affirming the motion judge's discretionary decision and reiterating that failure on the first part of the two-part test (acceptable explanation) is sufficient for dismissal.

This decision addresses four motions in consolidated construction lien actions.

Lien claimants Vestacon Limited and Plan Group Inc. sought to validate their liens against properties owned by 1302207 Ontario Limited (Peter Co.) and 364 Richmond Street West Inc. (Richmond Co.), following the bankruptcy of the tenant, Arc Productions Ltd. The court declared all three Certificates of Substantial Performance (CSPs) invalid due to premature issuance and insufficient property descriptions.

Consequently, Vestacon's lien was found to be timely, having been registered within 45 days of contract completion.

The court also affirmed the validity of Vestacon's Section 19 notices to the landlords, establishing their liability.

Furthermore, Vestacon's lien was extended to include the 364 Richmond Street West property, and leave was granted to add Richmond Co. as a defendant.

For Plan Group's lien, while the CSPs were invalid, a genuine issue for trial was found regarding the exact date of last supply, leading to the dismissal of the owners' motion to declare Plan Group's lien expired.

The appellant, Toronto Inspection Ltd., appealed a Master's order granting a co-defendant's motion to correct the names of 'John Doe' defendants to specify the appellant.

The appellant argued that only a plaintiff has standing to bring a misnomer motion and that the 'litigating finger' test was not met.

The Superior Court dismissed the appeal, holding that Rule 5.04(2) allows any party to move to correct a misnomer and that the statement of claim clearly pointed the litigating finger at the appellant as the concrete inspector.

The appellants appealed a Master's decision allowing the respondents' action for copyright infringement to proceed following a status hearing under Rule 48.14.

The appellants argued the Master erred in law by only considering prejudice that accrued during the period of delay for which the respondents were at fault, and in finding no non-compensable prejudice.

The Superior Court dismissed the appeal, finding the Master applied the correct test, properly accepted ongoing settlement discussions as a reasonable explanation for much of the delay, and correctly limited the prejudice analysis to the period of blameworthy delay.

The plaintiffs brought a motion for a status hearing under Rule 48.14(5) to show cause why their action, initiated in 2011 for copyright infringement, should not be dismissed for delay.

The court examined the plaintiffs' explanation for the 5.5-year delay, which included extensive settlement discussions and a change of counsel, and the defendants' claim of non-compensable prejudice.

The Master found that the plaintiffs provided an acceptable explanation for most of the delay, with any minor unexplained period partly attributable to the defendants' own inaction.

Furthermore, the defendants failed to demonstrate non-compensable prejudice resulting from the plaintiffs' delay.

Consequently, the motion was granted, the action was allowed to proceed, and a timetable for setting the action down for trial by September 30, 2018, was ordered.

Case management was deemed unwarranted at that time.