Court of Appeal for Ontario
Citation: Kobylecki v. Toronto (Municipality), 2013 ONCA 280 Date: 2013-04-29 Docket: C56210
Before: Laskin, Cronk and Hoy JJ.A.
Between:
James Walter Kobylecki Plaintiff (Appellant)
and
The Municipality of Metropolitan Toronto and Fer-Pal Construction Ltd. Defendants (Respondents)
Counsel: Rod Byrnes, for the appellant Natalie D. Kolos, for the respondent, The Municipality of Metropolitan Toronto Andrew L. Mercer, for the respondent, Fer-Pal Construction Ltd.
Heard: April 26, 2013
On appeal from the order of Justice Gloria R. Klowak of the Superior Court of Justice, dated September 20, 2012.
APPEAL BOOK ENDORSEMENT
[1] The plaintiff was injured in August 2003. He issued a claim against the city in November 2003, and added Fer-Pal as a defendant in August 2005. However, in nearly 10 years since the accident occurred, virtually nothing further has taken place in this litigation. Over long periods of time, the plaintiff has taken no steps at all to move this action forward. No discoveries have yet been held, and the action has not been set down for trial.
[2] Both defendants brought motions to dismiss the action for delay under r. 24.01(1)(c), which entitles a defendant to move to dismiss an action for delay if the action has not been set down for trial within six months of the close of pleadings.
[3] Klowak J. granted the motion. She concluded that the presumption of prejudice that arises from a lengthy delay had not been rebutted. We are not persuaded that she erred in her conclusion. The plaintiff has simply filed no evidence to show the absence of prejudice. In particular, the plaintiff has filed no evidence to support his contention that he is the only material witness to the incident, and that the rest of the relevant evidence is documentary.
[4] In addition, the plaintiff has produced no medical records showing the course of his injuries after his initial treatment.
[5] As we have found no error in the reasons of the motion judge, the appeal is dismissed with costs, which we fix as follows:
• The Municipality of Metropolitan Toronto - $5,500, inclusive of disbursements and applicable taxes
• Fer-Pal Construction Ltd. - $2,500, inclusive of disbursements and applicable taxes.