Court of Appeal for Ontario
BEFORE: Sharpe, Brown and Roberts JJ.A.
BETWEEN
990114 Ontario Ltd., operating as Paradise Bingo, and Michael Duval Appellants
and
Munsee-Delaware Nation, Patrick Waddilove, Jody Waddilove and Carmen Dolson Respondents
COUNSEL: Raymond Colautti, for the appellants Sean Flaherty, for the respondents
Heard and released orally: December 18, 2015
On appeal from the judgment of Justice A.K. Mitchell of the Superior Court of Justice, dated April 20, 2015.
ENDORSEMENT
1The appellants appeal a decision dismissing their action for delay pursuant to Rule 48.13(14).
2The appellants failed to comply with the timetable laid down at the first status hearing and, at a second status hearing, they were unable to provide the motion judge with a satisfactory explanation for their failure to move the action to trial.
3The motion judge followed the principles laid down by this court’s decision in 1196158 Ontario Inc. v. 6274013 Canada Ltd., 2012 ONCA 544, and dismissed the action.
4We see no error that would justify this court in interfering with the motion judge’s discretionary decision.
5We agree with the motion judge’s conclusion that the only thing throughout the six-year history of this action that has spurred the appellants into action was the issuance of status notices.
6We do not agree that the fact that the respondents took the position that Danny Branoff had drafted the lease provided the appellants with an excuse for failing to move this action forward. That allegation did not amount to a new defence but rather was evidence of a defence already pleaded, namely, that the appellants did not rely on representations made by the respondents.
7Nor do we agree that the respondent can be faulted for asking that the matter be struck from the trial list in October 2013. The appellants consented to that request which was prompted by their failure to respond to the respondents’ request for a discovery plan several months earlier.
8The motion judge carefully considered the history of this case and she weighed the relevant factors. We see no error in fact or principle.
9Accordingly, the appeal is dismissed.
10Costs to the respondents fixed at $7,500, inclusive of disbursements and taxes.
“Robert J. Sharpe J.A.”
“David Brown J.A.”
“L.B. Roberts J.A.”
