Court File and Parties

CITATION: Bentley v. Stone, 2007 ONCA 623

DATE: 20070913

DOCKET: C46053

COURT OF APPEAL FOR ONTARIO

LASKIN, MOLDAVER and LAFORME JJ.A.

BETWEEN:

CATHERINE ANNE BENTLEY Plaintiff

and

TEREZ STONE Defendant (Appellant)

and

PAUL J. PICKERING LIMITED, TRUSTEE IN BANKRUPTCY of the Estate of IAN JAMES PATERSON and KENNETH ROSS BENTLEY

Third Parties(Respondents)

Counsel: Karl Arvai for the defendant Robert Vitols for the third party, Paterson

Heard: September 12, 2007

On appeal from the order of Justice B.T. Granger of the Superior Court of Justice dated September 15, 2006.

APPEAL BOOK ENDORSEMENT

[1] The defendant appeals the motion judge’s order dismissing the third party claim for delay. In our view, the motion judge exercised his discretion reasonably in dismissing the claim. When the third party brought his motion to dismiss, more than eleven years had passed since the events giving rise to this litigation, and the case was not even on the trial list.

[2] The third party was in default when he brought the motion. The defendant’s delay in prosecuting the claim has been inexcusable and she has offered no satisfactory explanation for her failure to proceed with her claim promptly. The lengthy delay gives rise to a presumption of prejudice, if not actual prejudice, which the defendant has not adequately rebutted.

[3] Accordingly, the appeal is dismissed. The third party does not ask for costs.