Court of Appeal for Ontario

Citation: Turczinski v. Fernandes, 2013 ONCA 643

Date: 2013-10-23

Docket: C57093

Before: Hoy, A.C.J.O., Laskin and Tulloch JJ.A.

Between:

Adela Turczinski Appellant (Plaintiff)

and

Jose Fernandes, Ana Fernandes, Antonio Da Silva and Maria Da Silva Respondents (Defendants)

Counsel:

Jayson W. Thomas and Jennifer Thomas, counsel for appellant

Patrick Summers, counsel for respondents

Heard and released orally: October 10, 2013

On appeal from the order of Justice David Aston of the Superior Court of Justice, dated April 19, 2013.

Endorsement

[1] The appellant appeals the motion judge’s order dismissing her action for delay. The action was started in November 2002, and dismissed in April 2013 for failure to restore it to the trial list after it had been struck.

[2] The appellant submits that the motion judge did not apply the test for dismissal under rule 24, and also misapprehended or failed to consider some of the key evidence.

[3] We do not accept this submission. Although the motion judge did not expressly set out the test on a rule 24 motion for dismissal for delay, his reasons addressed the two essential elements of the test: whether the plaintiff had adequately explained the delay, and whether the plaintiff had shown an absence of non-compensable prejudice arising from the delay.

[4] The core of the motion judge’s reasons is that the appellant had not adequately explained the lengthy delay, and had not adequately rebutted the presumption of prejudice arising from this delay.

[5] The evidentiary record reasonably supports these two key findings of the motion judge. This action has been outstanding for over a decade. In the face of such a lengthy delay, the appellant had an onus to put forward some detailed evidence explaining the delay and addressing the issue of prejudice. However, the appellant’s affidavit is vague, and lacking in any relevant detail. Moreover, she has filed no other affidavit evidence, and, in particular, none from any of her counsel to explain the lengthy periods of inactivity. In the light of this record, the motion judge did not err in dismissing the appellant’s action. Accordingly, the appeal is dismissed.

[6] The appellant also seeks leave to appeal the costs ordered against her. She complains about the motion judge’s finding at paragraph 6 of his cost endorsement. In our view that finding was open to the motion judge. Accordingly, leave to appeal costs is refused.

[7] The respondents are entitled to the costs of the appeal, fixed at $6,000, all inclusive.

“Alexandra Hoy A.C.J.O.”

“John Laskin J.A.”

“M.H Tulloch J.A.”