COURT OF APPEAL FOR ONTARIO

CITATION: Jacob v. Playa El Agua Development Limited Partnership, 2015 ONCA 372

DATE: 20150525

DOCKET: C59761

MacPherson, Cronk and Gillese JJ.A.

BETWEEN

Jose-Bernard Jacob

Plaintiff (Appellant)

and

Playa El Agua Development Limited Partnership, Playa El Agua Development General Partner Ltd., Morris, Rose, Ledgett, The Estate of John Church, Torcat, Michael Paterson, Harvey Wortsman, Hwa Lee, Dennis Derry, and Seaviewdevelopments de Venezuela C.A.

Defendants(Respondents)

Robert A. Maxwell, for the appellant

Jack B. Berkow and Ranjan Das, for the respondents Morris, Rose Ledgett and Harvey Wortsman

David A. Brooker, for the respondents the Estate of John Church and Hwa Lee

Heard and released orally: May 21, 2015

On appeal from the Order of Justice Darla A. Wilson of the Superior Court of Justice, dated November 19, 2014.

ENDORSEMENT

[1] The appellant Jose-Bernard Jacob appeals the Order of D. Wilson J. of the Superior Court of Justice dated November 19, 2014 dismissing this action against these four defendants.

[2] The action, which relates to a property transaction in Venezuela, was commenced by the appellant in 1998. By the autumn of 2014, it had still not come to trial. There is a long list of steps, missteps, inactivity and silence during the 16-year life of the action. All of it was documented in the well-organized and comprehensive reasons of the motion judge. The overwhelming majority of the missteps, inactivity and silence clearly rest at the feet of the appellant, as the motion judge found.

[3] The well-established test is that an action should not be dismissed for delay unless: (1) the delay is intentional and contumelious; or (2) there is an inordinate, inexcusable delay, for which the plaintiff or his lawyer is responsible, which gives rise to a substantial risk that a fair trial might not now be possible: see Langenecker v. Sauvé, 2011 ONCA 803, at paras. 6-7.

[4] It is the second branch of the test that is in issue on this appeal. There can be no question that the delay in this case was inordinate. In Langenecker, Doherty J.A. said, at para. 8, that “there can be no doubt that 15 years from the commencement of the action to the motion to dismiss constitutes inordinate delay.” Obviously, the same comment applies to a 16-year delay.

[5] In our view, the delay was as clearly inexcusable as it was inordinate. The motion judge documented a long list of missteps and omissions involving answering undertakings, producing documentation, serving expert reports on both liability and damages, and other matters. Moreover, as the motion judge found, credibility was a central issue in this action in which allegations of fraud and conspiracy were made against several of the defendants, including the respondents. She also carefully considered the issue of prejudice, including the fact that two of the principal defendants had died during the action’s long life.

[6] In summary, we are in substantial agreement with the motion judge’s reasons. The appellant’s attack, both procedural and substantive, on those reasons is unpersuasive. The motion judge was right to invoke and apply to this action what Lauwers J.A. said in Wallace v. Crate’s Marine Sales Ltd., 2014 ONCA 671, at para. 22: “[T]here comes a time, in short, when enough is enough, and the civil justice system will no longer tolerate inordinate and inexplicable delay.”

[7] The appellant also appeals the costs order made by the trial judge. We see no basis for interfering with her costs award. It is neither plainly wrong nor tainted by an error in principle.

[8] The appeal is dismissed. The respondents are entitled to their costs of the appeal fixed at $12,000 (Morris, Rose, Ledgett and Harvey Wortsman) and $7,000 (Hwa Lee and the Estate of John Church), both inclusive of disbursements and applicable taxes.

“J.C. MacPherson J.A.”

“E.A. Cronk J.A.”

“E.E. Gillese J.A.”