Court v. Ontario (Attorney General), 2009 ONCA 462

CITATION: Court v. Ontario (Attorney General), 2009 ONCA 462

DATE: 20090603

DOCKET: C49739

COURT OF APPEAL FOR ONTARIO

Doherty, Goudge and Gillese JJ.A.

BETWEEN:

Graham Court, Teresa Court, Tyler Court and Joan Morden

Plaintiff (Appellant)

and

Her Majesty the Queen in Right of Ontario, Represented by the Attorney General for Ontario, Robert Runciman, Charles Harnick, Thomas B. O’Grady, Paul Stunt, James Cornish, William Harris, Michael Moore, Douglas MacMillan, and John Does, being unknown members of the Ontario Provincial Police, the Halton Regional Police Force, the County of Halton, the Hamilton-Wentworth Regional Police Force, the Region of Halton and Hamilton-Wentworth Crown Attorneys Office

Defendant (Respondent)

COUNSEL:

Gordon D. Cudmore, for the appellant

James Kendik, for the respondent, Her Majesty the Queen in Right of Ontario

Andrew J. Heal, for the respondent, Stunt

Heard: June 2, 2009

On appeal from the order of Justice Little of the Superior Court of Justice dated June 3, 2008.

APPEAL BOOK ENDORSEMENT

[1] The principles to be applied on a motion to dismiss a claim for delay are not in dispute. The motion judge recognized those principles. We review his application of those principles to the facts of this case on a “clearly wrong” standard of review.

[2] We see no error in the motion judge’s treatment. The appellant did nothing to pursue his claim for 10 years. He offers no explanation or excuse. There is no evidence as to what steps, if any, beyond a request for admission, that the appellant took to gain entry into Canada and put himself in a position to comply with the order of Templeton J.

[3] Finally, we cannot say that the appellant has a strong prima facie case. We are in no position to comment on the merits, if any, of the action.

[4] In the end, the order is justified primarily on the basis of the 10 years that the action sat without the appellant taking any steps to advance the claim.

[5] The appeal is dismissed. Costs to the respondent, Stunt, in the amount of $7,500, inclusive of disbursements and GST. Costs payable only by the appellant, Graham Court.