Court of Appeal for Ontario

CITATION: 806480 Ontario Limited v. RNG Equipment Inc., 2014 ONCA 488

DATE: 20140624

DOCKET: C58077

BEFORE: Laskin, Pepall and Pardu JJ.A.

BETWEEN

806480 Ontario Limited cob as Ken’s Sunoco Service

Plaintiff (Appellant)

and

RNG Equipment Inc. and ZCL Composites Inc.

Defendants (Respondent)

COUNSEL:

John H. McNair, for the appellant

Benjamin G. Blay, for the respondent

HEARD: May 9, 2014

On appeal from the order of Justice Andrew J. Goodman of the Superior Court of Justice, dated November 27, 2013.

ENDORSEMENT

[1] On May 9, 2013 the court allowed the appeal with reasons to follow. This was an action for damages arising out of the failure of a fuel storage tank. The registrar dismissed the action for delay, and the appellant appealed from the refusal of the motion judge to restore the action.

[2] The following chronology was established by the record:

1. Notice of action issued May 7, 2010
2. Statement of Claim issued June 4, 2010
3. Notice of Intent to Defend filed August 25, 2010
4. Statement of Defence issued January 13, 2011
5. Amended Statement of Defence issued March 24, 2011
6. Defendant’s motion for summary judgment dismissing action because of expiry of limitation period, served July 18 2011
7. Summary judgment motion dismissed December 5, 2011
8. Costs decision on summary judgment motion January 17, 2012
9. Status notice issued by registrar September 13, 2012
10. Registrar’s order dismissing action for delay December 4, 2012

[3] The status notice issued in this matter was made pursuant to Rule 48.14 and indicated that more than two years had passed since a defence in the action was filed. Rule 48.14(1) provides that if an action has not been listed for trial or terminated within two years after the first defence is filed, the registrar shall serve a status notice on the parties. For the purposes of this Rule, “defence” is defined in Rule 48.14 (0.1) as including a notice of intent to defend. The status notice provided that the action would be dismissed unless it was set down or otherwise terminated within 90 days of service of the status notice. The registrar’s order dismissing the action for delay was made before this 90 day period had elapsed. Both parties now agree that the registrar had no jurisdiction to dismiss the action, and the registrar’s order dismissing the action must be set aside.

[4] Counsel for the appellant argued that the motion judge erred in his application of the factors set out in Reid v. Dow Corning Corp. (2001) 11 C.P.C. (5th) 80 in refusing to set aside the dismissal. The motion judge considered that the respondent was prejudiced because it lost an opportunity to conduct an examination of the tank during the first months of the litigation. The tank in question here was removed and discarded five months after the Statement of Claim was delivered and two months before the respondent delivered its Statement of Defence. This is not prejudice arising from steps taken following dismissal, or which would result from restoration of the action following the registrar’s dismissal. In our view, the motion judge erred in considering this as prejudice in relation to the issue of whether to set aside the registrar’s dismissal.

[5] In any event the registrar’s order dismissing the action must be set aside as of right. The orders of the motion judge of November 27, 2013 and January 2, 2014 are set aside, and the registrar’s order of December 4, 2012 dismissing the action is set aside. Costs of the appeal are awarded to the appellant in the agreed sum of $8,000.00.

“John Laskin J.A.”

“S.E. Pepall J.A.”

“G. Pardu J.A.”