COURT OF APPEAL FOR ONTARIO

CITATION: Dynes v. Standard Life Assurance Company, 2012 ONCA 191

DATE: 20120323

DOCKET: C54439

Cronk and Epstein JJ.A. and Strathy J. (ad hoc)

BETWEEN

Joseph W. Dynes

Plaintiff (Appellant)

and

The Standard Life Assurance Company

Defendant (Respondent)

Kirk F. Stevens, for the appellant

Bennardina Scaccia and Lazina Khan, for the respondent

Heard and released orally: March 19, 2012

On appeal from the order of Justice T. David Little of the Superior Court of Justice, dated September 28, 2011.

ENDORSEMENT

[1] The appellant appeals from the order of T.D. Little J. of the Superior Court of Justice, dated September 28, 2011, dismissing his action for delay on motion by the respondent insurer.

[2] The motion judge held that: the appellant’s delay in advancing this litigation was inordinate and inexcusable; the delay gave rise to a presumption of prejudice and, in the circumstances, also occasioned actual prejudice to the respondent, resulting in a serious risk that a fair trial could not be obtained; and the appellant had failed to advance any acceptable explanation for the delay.

[3] We see no basis upon which to interfere with the motion judge’s decision to dismiss this action for delay.

[4] The pertinent chronology of events, in brief, is as follows.

[5] The appellant sued the respondent in November 2002 for damages for alleged breach of contract relating to weekly indemnity benefits and long-term disability income benefits. The respondent’s statement of defence was delivered in March 2003. The respondent defended the action in part on the basis that the appellant did not meet the definition of “disability” under the applicable insurance policy or the requirement for ongoing proof of continuing disability. Discoveries were scheduled on at least two occasions but, each time, were cancelled at the request of the appellant’s counsel.

[6] The appellant declared personal bankruptcy in 2005. After the date of his bankruptcy, he took no action to add the Trustee in Bankruptcy as a party to the lawsuit, although his counsel, on more than one occasion, confirmed with the respondent’s counsel that a pleadings amendment would be sought to permit the action to proceed.

[7] The appellant was discharged from bankruptcy on May 21, 2007. However, even then no steps were taken to advance the action, notwithstanding repeated requests by the respondent’s counsel that this occur. Throughout, the appellant provided virtually no medical information or documentation in support of his ongoing disability claim. Ignoring ongoing requests from the respondent’s counsel, the clinical notes and records of the appellant’s family doctor were not provided to the respondent until August 2011 and information regarding the appellant’s Canada Pension Plan receipts was only provided after service of the respondent’s dismissal motion.

[8] In the result, essentially no progress was made in this action after the exchange of pleadings in the spring of 2003. More than seven years passed before the parties re-engaged in respect of the action.

[9] The test for dismissal of an action for delay is well established: see Armstrong v. McCall (2006), 2006 17248 (ON CA), 213 OAC 229 (C.A.), at paras. 11-12.

[10] The appellant acknowledges that a presumption of prejudice arises in the face of the litigation delay in this case. He argues, however, that the presumption is rebutted because this is not the type of case where the evidence of the appellant’s alleged ongoing disability is “prone to erosion”. He also stresses that the respondent never complained of prejudice.

[11] We would not give effect to this argument.

[12] As we have said, this is a claim for damages for the denial of ongoing indemnity and disability benefits. Contrary to the appellant’s assertion that the motion judge misapprehended the nature of the appellant’s claim, the motion judge correctly recognized that, as pleaded, the appellant’s underlying claim involved “a possible evolving medical condition”. The appellant’s conduct in failing to move the action forward and in failing to produce medical evidence of his claimed disability, for more than seven years, prevented the respondent’s early assessment of the basis for and the strength of the appellant’s disability claim, over time. This opportunity has been forever lost. In addition, in our view, it cannot be said that any possible relevant non-medical evidence bearing on the appellant’s disability necessarily survives.

[13] Further, no explanation was advanced by the appellant for the delay. Importantly, the record reveals that despite what we regard as persistent communication by the respondent’s counsel with the appellant’s counsel in an effort to reactivate the matter, and demanding the production of medical information or documentation by the appellant, no steps were taken by the appellant from at least May 2007 (when he was discharged from bankruptcy) to October 2010, when the respondent’s counsel advised that the respondent was considering a dismissal motion. There is simply no explanation on this record for this lengthy delay.

[14] The appellant argues that the respondent’s participation in a November 2010 meeting when the possibility of a settlement appears to have been discussed indicates that the respondent had no complaint of any prejudice occasioned by the delay.

[15] We see nothing on the record establishing that, by participating in the meeting in question, the respondent intended to, or in fact did, abandon its right to rely on the appellant’s delay and the attendant presumption of prejudice to the respondent’s defence of the action and its right to a fair trial.

[16] Accordingly, notwithstanding Mr. Stevens’ able submissions on behalf of the appellant, and for reasons that differ in part from those of the motion judge, we agree that the delay in this case warranted dismissal of the action.

[17] For the reasons given, the appeal is dismissed. The respondent is entitled to its costs of the appeal, fixed in the total amount of $6,000, inclusive of disbursements and all applicable taxes.

Signed: “E. A. Cronk J.A.”

“G. J. Epstein J.A.”

“G. Strathy J. (ad hoc)”