Court of Appeal for Ontario

2012 ONCA 251

Date: 2012-04-20

Docket: C54465

MacPherson, Lang, and Epstein JJ.A.

Between

North Toronto Chinese Alliance Church

Plaintiff (Appellant)

and

Gartner Lee Limited

Defendant (Respondent)

Counsel:

Rod Byrnes, for the appellant

Gosia Bawolska and Yu Mai, for the respondent

Heard: April 2, 2012

On appeal from the order of Justice Peter Lauwers of the Superior Court of Justice, dated September 9, 2011.

Endorsement

[1] The plaintiff/appellant appeals from the order of Lauwers J. of the Superior Court of Justice, dated September 9, 2011, dismissing the proceeding for delay on motion by the defendant/respondent. The action is for damages arising from the preparation of a hydrological report dated March 17, 1995 by the respondent. The appellant’s position is that it relied on this report to its detriment in deciding to purchase property.

[2] The following is a brief chronology of relevant events.

[3] On December 5, 1996, the appellant put the respondent on notice of its intention to pursue an action against it. On July 6, 2001, the statement of claim was issued. On March 28, 2002, the respondent delivered its statement of defence and on April 30, 2002, its affidavit of documents. Counsel for the respondent attempted to schedule examinations for discovery in August. However, her letters to counsel for the appellant went largely unanswered. The appellant delivered its affidavit of documents on January 8, 2003. Thereafter, the respondent provided its productions to the appellant and served a notice of examination for discovery to take place at the end of that month. A week before the scheduled discoveries, counsel for the plaintiff cancelled them. New dates were set for May of 2003. These dates were moved to June as the appellant had not yet provided its productions. Discoveries finally started in June of 2003. They were set to continue in August once the appellant had provided documentation relating to its damages claim. The delay in providing this information necessitated the discoveries’ having to be moved to October. They did not, however, take place then as the appellant had still not provided the necessary information.

[4] Three years later, not having heard anything more from the appellant’s counsel, counsel for the respondent advised that she had instructions to bring a motion for an order dismissing the action for delay. The motion record was served on May 3, 2007. At the request of appellant’s counsel the motion was re-scheduled to be heard on May 24. At that time Boyko J. adjourned the motion to June 21 at which time Boyko J. ordered the appellant to answer undertakings and provide a breakdown of damages. The appellant met these obligations and discoveries continued in December 2007.

[5] In March of 2008, the court delivered a status notice that resulted in the action being dismissed for delay on June 5. By order dated June 23, 2008 the dismissal order was set aside.

[6] After another year of inactivity, the respondent advised the appellant that a motion for summary judgment would be brought for an order dismissing the action for delay.

[7] On April 12, 2010, the appellant set the action down for trial – eight years after pleadings had closed.

[8] The respondent’s motion for summary judgment was served returnable in October 2010. It was not heard until September 2011 due to unavailability of the appellant’s counsel.

[9] On July 13, 2011, the appellant served its expert report, authored 17 years after the delivery of the respondent’s report.

[10] The motion judge’s reasons for dismissing the action for delay are summarized in para. 33 of his reasons:

There must come a point at which the plaintiff’s accumulated, inordinate, inexcusable, and unexplained delays, in the face of the manifest expectations of the administration of justice as set out in the Rules of Civil Procedure and in the practices of the court, become reckless if not wilful and become disrespectful to the court and the defendant. In my view, the plaintiff has reached that point in this case, thus meeting the standard of “intentional and contumelious.” Even if the plaintiff’s dilatory behaviour were not “intentional and contumelious” within the meaning of rule 24.01, that behaviour warrants dismissal of the plaintiff’s case in the exercise of the court’s inherent jurisdiction over its own process.

[11] The test for dismissal of an action for delay is well established: see Armstrong v. McCall, (2006), 2006 CanLII 17248 (ON CA), 213 O.A.C 229 (C.A.), at para. 11, quoting from Woodheath Developments Ltd. v. Goldman (2003), 2003 CanLII 46735 (ON SCDC), 66 O.R. (3d) 731 (Div. Ct), at 732:

The principle to be applied on a motion to dismiss for delay is that the action should not be dismissed unless:

(1) the default is intentional and contumelious; or

(2) the plaintiff or his or her lawyers are responsible for the inexcusable delay that gives rise to a substantial risk that a fair trial might not now be possible.

[12] The motion judge dismissed the action for delay on the first branch of the test, finding that the appellant’s default was intentional and contumelious. There was ample evidence to support this finding.

[13] The appeal is therefore dismissed.

[14] Counsel for the respondent seeks costs of the action including the motion for summary judgment in the amount of $57,000 and costs of this appeal in the amount of $7,000. Both amounts are on a partial indemnity basis and include disbursements and applicable taxes. Counsel for the appellant takes no issue with these submissions. As a result, we order costs to the respondent in the amounts requested.

“J.C. MacPherson J.A.”

“S.E. Lang J.A.”

“G.J. Epstein J.A.”