Court File and Parties

Citation: Tanguay v. Brouse, 2010 ONCA 73 Date: 2010-01-28 Docket: C50765 Court of Appeal for Ontario

Before: Moldaver, Cronk and Lang JJ.A.

Between:

Jean-Pierre Tanguay, Shirley Tanguay, Jean Tanguay and Michel Tanguay Plaintiffs (Appellants)

and

Bryan Brouse, Brian Brouse and Donald Brouse Respondents (Respondents)

Counsel: C. Kirk Boggs, for the appellants Robert W. Traves and Chad M. Leddy, for the respondents

Heard and released orally: January 21, 2010

On appeal from the order of Justice J. Stephen O’Neill of the Superior Court of Justice, dated June 19, 2009.

Endorsement

[1] In 2009, on a motion to dismiss for delay, the defendants demonstrated to the satisfaction of the motion judge that the plaintiffs had inordinately delayed moving the 1991 action forward, in particular during the immediately preceding four to five years in which there was complete inactivity.

[2] As the motion judge observed, in the face of inordinate delay, a rebuttable presumption arises that the defendants are prejudiced because a substantial risk arises “that a fair trial might not be possible": See Armstrong v. McCall (2006), 213 OAC 229 quoting Woodheath Developments Ltd. v. Goldman (2003), 66 O.R. (3d) 731 at 732 (Ont. Div. Ct.). There are several bases for the presumption. One recognizes that memories fade over time and another recognizes that justice delayed is justice denied. Expeditious justice is the objective. The presumption strengthens with the length of the delay. Given the length of the delay in the present case, the presumption of prejudice is strong. See Clairmonte v. Canadian Imperial Bank of Commerce (1970), 12 D.L.R. (3d) 425.

[3] In this case, the defendants relied on the presumption. The plaintiffs filed no material to rebut the presumption. On this basis, the motion judge applied the presumption and dismissed the plaintiffs’ action.

[4] On appeal, the plaintiffs do not challenge the finding of inordinate delay. However, they argue that the motion judge erred by applying the presumption without considering the contents of the materials that had been filed by the defendants on the motion, including discovery transcripts and medical records.

[5] We would not give effect to this argument. Even if the plaintiffs could rely on the defendants’ materials, an argument that does not appear to have been advanced before the motion judge, in our view the materials fail to rebut the presumption.

[6] The question of liability for the motor vehicle accident is not the most significant issue between the parties. Even if the discovery and documentary evidence was sufficient to prevent prejudice on the issue of liability, it is inadequate on the primary issue about the effect of the accident on the injured plaintiff, including his pre-existing and post-accident medical conditions, his functional capacity, and his income loss claim. We are not persuaded that the evidence adduced on the motion adequately addresses these issues. Tellingly, the medical records filed on the motion do not extend beyond 1997. No medical records for the 12 years preceding the motion were filed. Moreover, the defendants have forever lost the opportunity for the 2004 defence medical that the injured plaintiff wrongfully refused to attend.

[7] As we have said, the plaintiffs filed no materials on the motion to rebut the presumption of prejudice. They failed to do so at their peril. No information was provided about recent medical records, OHIP records or income tax records. In the complete absence of such materials, on the record as it stands, the plaintiffs have failed to meet their onus to rebut the presumption of prejudice.

[8] Accordingly, despite the very able argument of appellants’ counsel, the appeal is dismissed. Costs of the appeal to the respondents, fixed in the amount of $7,500, inclusive of disbursements and G.S.T.

“M. Moldaver J.A.”

“E.A. Cronk J.A.”

“S.E. Lang J.A.”