Court of Appeal for Ontario

Citation: Gordon Gravelle o/a CodePro Manufacturing v. Denis Grigoras Law Office, 2013 ONCA 339 Date: 20130524 Docket: C56181

Before: Simmons, Hoy and Strathy JJ.A.

Between:

Gordon Gravelle o/a CodePro Manufacturing Plaintiff (Appellant)

and

Denis Grigoras Law Office and Denis Grigoras an Individual Defendants (Respondents)

Counsel: Gordon Gravelle, for the appellant Brendan D. Hardick and Laird S.S. Scrimshaw, for the respondents

Heard and released orally: May 14, 2013

On appeal from the order of Justice Casimir Herold of the Superior Court of Justice, dated September 13, 2012.

Endorsement

[1] The appellant appeals from an order dismissing his motion requesting an order setting aside a registrar’s dismissal for delay.

[2] The appellant does not dispute that the motion judge applied the proper test for determining whether the administrative dismissal should be set aside, namely the test set out in Reid v. Dow Corning Corp. (2001), 11 C.P.C. (5th) 80 (Ont. Master) rev’d on other grounds, (2002), 48 C.P.C. (5th) 93. (Ont. Div. Ct.), as that decision has been explained in other decisions of this court. Rather, the appellant submits that the motion judge erred in failing to find that he (the appellant) had satisfied all prongs of that test.

[3] We do not accept the appellant’s submissions. The motion judge found that the appellant acted with reasonable diligence in moving to set aside the dismissal order. However, in applying the Reid v. Dow Corning Corp. test, the motion judge also found that the appellant had not adequately explained the litigation delay; that, rather than being inadvertent, the appellant’s failure to set the action down for trial was deliberate; and that the appellant failed to rebut the presumption of prejudice arising from the expiry of the limitation period.

[4] In his affidavit filed on the set-aside motion, the appellant acknowledged he was taking a “wait and see” approach to this action, that is, awaiting the outcome of other litigation before proceeding with this action. While there may be some circumstances in which such an approach is justified, the appellant failed to provide any information that would justify such an approach in this case. The fact that the appellant was occupied with other litigation and his personal affairs is not a sufficient explanation for taking no active steps to move an action forward. Similarly the appellant failed to adduce any evidence to rebut the presumptive prejudice arising from the expiry of the limitation period.

[5] The motion judge’s decision involved an exercise of discretion. Absent clear error, we are not permitted to interfere with that exercise of discretion. In this case we see no basis on which to do so.

[6] The appeal is therefore dismissed.

[7] The costs of the appeal will be to the respondents on a partial indemnity basis fixed in the amount of $5000.00 inclusive of disbursements and applicable taxes.

“Janet Simmons J.A.”

“Alexandra Hoy J.A.”

“G.R. Strathy J.A.”