COURT OF APPEAL FOR ONTARIO

CITATION: McLean v. Boettcher, 2016 ONCA 14

DATE: 20160108

DOCKET: C60657

Juriansz, Hourigan and Brown JJ.A.

BETWEEN

Theresa McLean and Thomas McLean

Plaintiffs (Appellants)

and

Tracy Boettcher, Elizabeth Boettcher, John Boettcher, William Taggart, Taggart & Carroll LLP and the Corporation of the Township of Cramahe

Defendants (Respondents)

William G. Scott, for the appellants

Suzanne E. Hunt, for the respondent The Corporation of the Township of Cramahe

Tanisha G. Tulloch, for the respondents William Taggart and Taggart & Carroll LLP

No one appearing for the respondents Tracy Boettcher, Elizabeth Boettcher and John Boettcher

Heard and released orally: January 5, 2016

On appeal from the order of Justice Bradley W. Miller of the Superior Court of Justice, dated June 4, 2015.

ENDORSEMENT

[1] The appellants appeal the order of the motion judge dismissing their motion to set aside the registrar’s dismissal of their action for delay.

[2] The action relates to an agreement dated February 24, 2006 to purchase residential property. The appellants, who were the purchasers, commenced an action on June 2, 2008 against the defendants. In January 2010, the parties mutually agreed to postpone the progress of the litigation to allow the appellants to investigate an alternative solution to the dispute.

[3] On October 4, 2010, the registrar gave notice the action would be dismissed for delay within 90 days unless the action was set down for trial. At the status hearing on December 17, 2010, Rady J. ordered a timetable which required the trial record to be filed by October 31, 2011. The trial record was not filed by that date. The registrar dismissed the action on November 15, 2011.

[4] The motion to set aside the registrar’s dismissal was served March 22, 2012. However, there were a series of adjournments with the consent of the defendants, many to allow the appellants to obtain an engineering report that might have resolved the dispute in an alternative forum. On May 21, 2013, the court adjourned the motion to July 29, 2013, making the matter peremptory absent evidence of extraordinary circumstances. On July 29, 2013, the matter came on before Leitch J. The appellants were not prepared to proceed and sought another adjournment. Leitch J., upon being advised that the reason for the continued adjournments was to allow the appellants to pursue the alternative resolution, dismissed the motion in order to respect the court ordered timetable, but gave leave to the appellants to bring a new motion.

[5] After Leitch J.’s order, as the motion judge observed, “astonishingly, the [appellants] did not take any further steps in the litigation for 14 months.”

[6] In his analysis, the motion judge applied the correct test, carefully considering the four factors set out in Reid v. Dow Corning Corp.

[7] He weighed the fact that the source of part of the delay was the “entirely laudable effort to pursue a cost-effective solution outside of the courts”, but found this did not excuse the failure to move the action forward. He considered that the 14 months of delay after the order of Leitch J., due to a mixture of tactical choice and neglect, was “fatal” to the motion. He also found there was presumed prejudice and actual prejudice to the defendants that had not been rebutted. He dismissed the motion

[8] On appeal, the appellants submit the motion judge erred in finding the death of a witness resulted in actual prejudice, arguing that even if the court ordered timetable had been met, the trial could not have been held before the witness' death. Be that as it may, we are satisfied there was ample other evidence upon which the trial judge could find the actual prejudice that had not been rebutted.

[9] The appellants also submitted that the unexplained 14 month delay in bringing the second motion to set aside was much briefer than the 5 year delay in Marché d'Alimentation Denis Thériault Ltée v. Giant Tiger Stores Ltd. (2007), 2007 ONCA 695, which the motion judge relied upon. They argued the motion judge erred by finding the 14 month delay was fatal to the motion.

[10] We reject the argument. The motion judge recognized the Reid factors do not prescribe a formula, but provide a structured approach to reconciling the principle that civil actions should be decided on their merits, with the principles that civil actions should be resolved within a reasonable timeframe and that the public interest is served by promoting the timely resolution of disputes. It was for the motion judge to balance these competing principles and weigh the 14 month delay in the context of the entire delay and all the circumstances. We agree with the result the motion judge reached.

[11] In conclusion, we have not been persuaded that the motion judge made any error that would affect the result. We agree with his observation that “having been granted every possible indulgence from the court, [the appellants] did not fulfill their obligation to move the litigation along.”

[12] The appeal is dismissed.

[13] The Taggart respondents’ costs are fixed in the amount of $10,000 all inclusive, and the Township of Cramahe respondent’s costs are fixed in the amount of $2,500 all inclusive.

“R.G. Juriansz J.A.”

“C.W. Hourigan J.A.”

“David Brown J.A.”