COURT OF APPEAL FOR ONTARIO

CITATION: MacDonald Estate v. Highland Fuels Dundalk Ltd., 2014 ONCA 67

DATE: 20140124

DOCKET: C57422

Rosenberg, Cronk and Tulloch JJ.A.

BETWEEN

Scott Richardson and Gerry Richardson

Plaintiffs

The Estate of Bonnie Irene MacDonald

by her Estate Trustee Collene MacDonald, Leif Smith

Defendants

Plaintiffs by Cross-claim

(Appellants)

and

Highland Fuels Dundalk Ltd.

Defendant

Defendant by Cross-claim

(Respondent)

Daniel Zacks, for the appellants

David A. Zuber and James Tausendfreund, for the respondent

Heard: January 22, 2014

On appeal from the order of Justice D.L. Edwards of the Superior Court of Justice, dated August 12, 2013.

APPEAL BOOK ENDORSEMENT

[1] The appellants’ central contention on this appeal is that, by consenting to a June 2012 order requiring the appellants to set the action down for trial by a set date, the respondent implicitly represented that it was ready for trial. We reject this contention.

[2] By consenting to the order at issue, the respondent did no more than agree to a scheduling requirement that the appellants, who had delayed for years in advancing the progress of their claim against the respondent, set the matter down for trial by a particular date, failing which the respondent could move to dismiss the claim for delay. In so doing, the respondent made no representation regarding its own trial readiness or with respect to the potential for a fair trial, given the appellants’ considerable delay. Indeed, the order at issue is not an order setting the matter down for trial. Nor was the appellants’ claim against the respondent ever, in fact, set down for trial by any of the parties, let alone being placed on the trial list.

[3] In these circumstances, we agree with the respondent that those aspects of Rule 48 of the Rules of Civil Procedure relied upon by the appellants were simply not engaged.

[4] We also agree with the motion judge that, by consenting to the June 2012 scheduling order, the respondent did not waive its right to later complain of prejudice occasioned by the appellants’ delay prior to the date of the order. The order does not say so. Nor is there any evidence that the parties so agreed as a condition of the order. Indeed, on its face, the order contemplated, without limitation, that if the appellants failed to set the action down for trial by November 30, 2012, the respondent would be entitled to move to dismiss the action for delay. Nothing in the language of the order, expressly or by implication, narrowed the scope of the prejudice by reason of delay argument that might then be advanced by the respondent in these circumstances.

[5] We note that the appellants’ involved counsel (not counsel on this appeal) effectively acknowledged as much on his cross-examination by conceding that the respondent did not waive its right to complain of the appellants’ pre-June 2012 delay by reason of consenting to the June 2012 order.

[6] For the reasons given, the appeal is dismissed. The respondent is entitled to its costs of the appeal, fixed, as agreed by the parties, in the total amount of $7,500, inclusive of disbursements and all applicable taxes.