COURT OF APPEAL FOR ONTARIO

CITATION: Khan v. Sun Life Assurance Company of Canada, 2011 ONCA 650

DATE: 20111018

DOCKET: C53307 ( M40570)

Doherty, Weiler and Cronk JJ.A.

BETWEEN

Shabbir Khan

Plaintiff (Appellant)

and

Sun Life Assurance Company of Canada

Defendant (Respondent)

Michael Kelly and Sabrina Singh, for the appellant

K. Michael McLoughlin, for the respondent

Heard: October 14, 2011

On appeal from the order of Justice M. D. Parayeski, of the Superior Court of Justice, dated January 20, 2011.

APPEAL BOOK ENDORSEMENT

[1] We see no basis on which to interfere with the motion judge’s discretionary decision to dismiss the appellant’s action on the basis of delay. At the status hearing, which was originally requested by the appellant, the appellant bore the burden of demonstrating that there was an acceptable explanation for the involved litigation delay and that, if the action was allowed to proceed, the respondent would suffer no non-compensable prejudice.

[2] On this record, the appellant failed to meet either branch of this test. Based on the affidavit materials filed on behalf of the appellant, it was open to the motion judge to conclude that no plausible explanation for the appellant’s delay in proceeding with the action had been advanced. There was evidential support for the motion judge’s finding that insofar as the appellant and his counsel were concerned, “this file has simply been ignored”.

[3] Further, the motion judge made no error in concluding that the appellant had also failed to demonstrate the absence of prejudice to the respondent, at least in respect of the appellant’s claim for long-term disability benefits. Moreover, counsel for the appellant made no suggestion before the motion judge that the appellant’s short-term and long-term disability benefits claims could or should be severed.

[4] The appeal is therefore dismissed.

[5] The appellant also seeks leave to appeal the motion judge’s adverse costs award. We see no error in principle in the motion judge’s costs decision, nor is it plainly wrong. Accordingly, leave to appeal costs is denied.

[6] The respondent is entitled to its costs of this appeal and of the motion for leave to appeal costs, fixed, as agreed by counsel, in the aggregate sum of $7,500, inclusive of disbursements and all applicable taxes.