DATE: 20031120
DOCKET: C39583
COURT OF APPEAL FOR ONTARIO
RE: HELLENIC COMMUNITY OF KITCHENER WATERLOO AND SUBURBS HOUSING INC. (Plaintiff/ Appellant) and URBEX MANAGEMENT LIMITED and THE HALIFAX INSURANCE COMPANY (Defendants/Respondents)
BEFORE: FELDMAN, GILLESE and ARMSTRONG JJ.A
COUNSEL: A.J. Esterbauer and Ernest Putman for the plaintiff/appellant
A.M. Robinson for the defendant/respondent Urbex Management Limited
HEARD: November 13, 2003
RELEASED ORALLY: November 13, 2003
On appeal from the order of Justice D.J. Gordon of the Superior Court of Justice dated January 22, 2003.
E N D O R S E M E N T
[1] We are of the view that the motions judge erred in principle in finding there was prejudice due to inexcusable delay caused by the appellant that gave rise to a substantial risk that a fair trial of the issues in the action will not be possible.
[2] We agree that the overall length of time taken to reach this stage of proceeding is inordinate. However, the prejudice alleged by the respondent is general in nature. We note, for example, that there is no evidence that any necessary witness has died, is incapacitated or cannot be located. See De Marco v. Mascitelli (2001), 14 C.P.C. (5th) 384 at 391. We recognize that the respondent has been handicapped in providing evidence of such prejudice by the failure of the appellant to comply with undertakings. For that reason, we allow the appeal and set aside the order dismissing the action, but without prejudice to the respondent to move again to dismiss the action for delay on either of the following bases:
(i) In the event that the appellant does not provide answers to the undertakings within thirty days; (In the circumstances, such failure shall establish prejudice for the purposes of such a motion) or
(ii) on any other proper basis.
[3] In the circumstances, costs of the appeal and of the motion below shall be to the respondent fixed in the amount of $14,000.00, inclusive of disbursements and G.S.T., payable forthwith.
“K. Feldman J.A.”
“E.E. Gillese J.A.”
“R.P. Armstrong J.A.”