Court of Appeal for Ontario
Date: 2023-09-05 Docket: C70399
Before: Tulloch, Thorburn and George JJ.A.
Between:
Timothy Rodger Plaintiff (Appellant)
and
London Hydro Inc. Defendant (Respondent)
Counsel: Denis Grigoras, for the appellant Jason DiFruscia and Melinda Vine, for the respondent
Heard and released orally: November 16, 2022
On appeal from the order of Justice Spencer Nicholson of the Superior Court of Justice, dated January 28, 2022.
Reasons for Decision
[1] The appellant, Timothy Rodger, appeals from an order dismissing his action for delay in accordance with r. 24.01 of the Rules of Civil Procedure.
[2] This appeal was heard on November 16, 2022 and was dismissed from the bench with oral reasons given following the hearing of the appeal. These reasons are essentially a transcription of the oral reasons given.
[3] On March 8, 2016, the appellant brought a claim in negligence for damages resulting from incorrect hydro smart reader readings against the respondent, London Hydro Inc.
[4] The respondent served its statement of defence two weeks later, and examinations for discovery took place on July 26, 2017. No further steps were taken between July 26, 2017 and November 26, 2021 when the respondent brought a motion to dismiss the action for delay.
[5] On December 8, 2021, the appellant’s then counsel confirmed in a letter that he had been instructed by the appellant not to take any further action. The December 8, 2021 letter also confirms that the appellant was aware that the respondent was seeking to dismiss the claim for delay.
[6] On January 14, 2022, counsel advised the court that he was to be removed from the record and the motion was adjourned to January 28, 2022.
[7] On January 28, 2022, the appellant’s counsel was removed from the record with the consent of the appellant. On the same date, January 28, 2022, the court heard and disposed of the respondent’s motion to dismiss the action for delay in accordance with r. 24.01(2).
[8] The motion judge carefully considered the appellant’s submissions, and specifically considered whether the appellant satisfied his onus to demonstrate that the dismissal of the action would be unjust.
[9] The motion judge gave four reasons for dismissing the action for delay:
- More than five years had passed since the commencement of the action.
- The plaintiff provided no affidavit explaining the delay.
- The appellant’s submission that he had emailed the registrar to say he sat on a Zoom link with no sound or visual for over two hours, his complaints about his own and opposing counsel, his assertion of his right to new counsel, and his desire to give new counsel a further month to review documents were inadmissible as evidence. In any event, they did not provide any explanation for the delay.
- While the defendant had not given any specific evidence of prejudice, there was a presumption of prejudice once five years had passed: Dupuis v. W.O. Stinson & Son Limited, 2019 ONSC 5762, at para. 14.
[10] The motion judge therefore held that there was no admissible explanation for the delay, and this coupled with the fact that the motion was marked peremptory, satisfied him that he should not grant a further adjournment but should instead dismiss the claim.
[11] We see no error in the motion judge’s decision to dismiss the claim and deny the request for an adjournment on these grounds.
[12] We therefore see no reason to interfere with his exercise of discretion to dismiss the action.
[13] Accordingly, the appeal is dismissed.
[14] On the issue of costs, costs are awarded to the respondent in the amount of $4,100, inclusive of taxes and disbursements, to be paid forthwith.
“M. Tulloch J.A.” “Thorburn J.A.” “J. George J.A.”
