DATE: 20021204

DOCKET: C38368

COURT OF APPEAL FOR ONTARIO

RE: JUNE CONVAY, TONY OGBU and OGBU & BLIUS ENGINEERING INC. (Plaintiffs/Appellants) v. MARSULEX INC., JARMILA MARTINEK and MARGARET JEAN TAGGART (Defendants/Respondents)

BEFORE: DOHERTY, AUSTIN and CHARRON JJ.A.

COUNSEL: Darrel N. Hawreliak for the appellants

S.W. Pettipiere for the respondents, Martinek and Taggart

Ross F. Earnshaw for the respondent, Marsulex

HEARD: December 2, 2002

RELEASED ORALLY: December 2, 2002

On appeal from the order of Justice E.G. Fedak dated May 9, 2002.

E N D O R S E M E N T

[1] Fedak J. purported to dismiss the action relying on Rule 24.01(1)(c). The parties agree that the rule could not be invoked to dismiss the action as the respondents (defendants) had not served their affidavit of documents as required by the Rules.

[2] Although the action could not be dismissed under the rule relied on by Fedak J., we are satisfied that it could be properly dismissed as an abuse of the court’s process.

[3] Considering the inordinate unexplained delay in prosecuting the action, the absence of any steps by the appellants to move the action forward since its commencement in 1996, the appellants’ conduct in prior related litigation commenced in 1990 involving the respondents’ predecessor on title, which resulted in a dismissal of the action for non-compliance with a court order, and the appellants’ unexplained failure to comply with the order of Sills J., we are satisfied that it would be an abuse of the court’s process to allow this action to proceed. Consequently, we affirm the order of Fedak J., although on a different ground.

[4] The appeal is dismissed with costs. Those costs are fixed on a partial indemnity basis at $5,500 for Marsulex and $5,500 for Martinek and Taggart.

“Doherty J.A.”

“Austin J.A.”

“Louise Charron J.A.”