Court of Appeal for Ontario

CITATION: Khan v. Metroland Printing, Publishing & Distributing Ltd., 2013 ONCA 571

DATE: 20130920

DOCKET: C57137

BEFORE: Feldman, Tulloch and Lauwers JJ.A.

BETWEEN

Colleen Khan, Ray Khan, Shelly Khan, James Khan and Sonny Khan

Applicants (Appellants)

and

Metroland Printing, Publishing & Distributing Ltd., Ian Proudfoot, Brenda Larson, Debora Kelly, David Teetzel, Christopher Douris and William F. Bell

Respondents (Respondents)

COUNSEL:

Philip P. Healey and Mark van Zandvoort, for the appellants

Ryder Gilliland, for the respondents Metroland Printing, Publishing & Distributing Ltd., Ian Proudfoot, Brenda Larson, Debora Kelly, David Teetzel and Christopher Douris

Charles M. Loopstra, Q.C., for the respondent Estate of William F. Bell

Heard and released orally: September 16, 2013

On appeal from the judgment of Justice Ian V.B. Nordheimer of the Superior Court of Justice, dated February 11, 2013, reported at 2013 ONSC 944.

ENDORSEMENT

[1] The appellants appeal the orders of Nordheimer J. dated February 11, 2013 dismissing the appellants’ action for delay.

[2] The action arose out of statements published by the respondent Metroland during the 1997 municipal election. Colleen Khan (now deceased), was a mayoral candidate for Richmond Hill. One of the respondents, William Bell (now deceased), was the successful candidate in the same mayoral election. The appellants commenced an action in January 1998 alleging that defamatory statements, including statements allegedly made by William Bell, were published in Metroland’s newspaper. The respondents delivered a Statement of Defence in February 1998. The respondent Bell also delivered a counter-claim alleging libel and slander contained in Colleen Khan’s campaign literature.

[3] The appellants filed Statements of Defence in March 1998. The examination for discovery of the respondent Bell took place in October 1998. One other examination for discovery also took place at that time. No other examinations have since occurred.

[4] Nordheimer J. was appointed as case management judge in June 2001 and thereafter dealt with the respondents’ motion to dismiss on the basis of failure of one of the appellants to pay prior costs. In July 2001, Nordheimer J. made an order requiring the appellants, with the exception of one, to post security for costs. The Divisional Court allowed the appeal and set aside the costs order. This Court dismissed the respondents’ appeal in May 2005.

[5] Since May 2005, no further steps in this action have been taken by the parties, other than the respondents’ motion to dismiss for delay.

[6] In responding to the motion Nordheimer J. made the following comments at paras. 33, 34, 36 and 37 of his decision. He said this:

In the end result, more than fifteen years have passed since the alleged libel took place. Fourteen years have passed since the action was commenced. Outside of some discovery steps taken in 1998, nothing has been done by the plaintiffs to bring this action to trial. The plaintiffs make the bald allegation in their responding affidavit that they “attempted to set this matter down for trial but were unable to” with nothing more. In addition, now faced with this motion, the plaintiffs say that they “have conducted what discoveries they wish to conduct and want to proceed to trial”. If that is true, given that these discoveries were conducted in 1998, it poses the obvious question why the action was not set down for trial at any point in the last fourteen years unless, of course, this realization has only occurred very recently and solely in response to this motion.

The fact is that there has been inordinate delay in this proceeding and that delay lies almost entirely at the feet of the plaintiffs and their lawyers. … There is a presumption of prejudice that rises from this delay that is reinforced by evidence of actual prejudice through the loss of witnesses.

In the end result the situation here falls squarely within the principle enunciated in 1196158 Ontario Inc. v. 6274013 Canada Ltd., (2012), 2012 ONCA 544, 112 O.R. (3d) 67 (C.A.) and, in particular, where Sharpe J.A. said at para. 33:

At some point, a party who has failed to respect the rules designed to ensure timely and efficient justice, loses the right to have its dispute decided on the merits. If that were not the case, the rules and timelines they imposed would cease to have any meaning and any hope of ensuring timely and efficient justice would be seriously jeopardized.

If the requirement established by r.24.01(1) is not applied in situations such as is presented here, is difficult to foresee the type of case where realistically it would ever be applied.

[7] We see no palpable or overriding error in the conclusions of Nordheimer J. We therefore dismiss the appeal, with costs to the respondent Bell in the amount of $5000 all inclusive, and to the Metroland respondents in the amount of $2500 all inclusive.

“K. Feldman J.A.”

“M. Tulloch J.A.”

“P. Lauwers J.A.”