COURT OF APPEAL FOR ONTARIO

CITATION: Diemer (Cornacle Cattle Co.) v. London Farms Ltd., 2016 ONCA 946

DATE: 20161215

DOCKET: C62198

Cronk, Juriansz and Roberts JJ.A.

BETWEEN

Daniel A. Diemer carrying on business as Cornacre Cattle Co.

Plaintiff (Appellant)

and

London Dairy Farms Ltd.

Defendant (Respondent)

Steven Pickard, for the appellant

Dan MacKeigan, for the respondent

Heard: December 12, 2016

On appeal from the order of Justice George W. King of the Superior Court of Justice, dated April 26, 2016.

ENDORSEMENT

[1] The appellant appeals from the dismissal of his motion for an order to allow for the late filing of his statement of claim. The appellant’s notice of action was issued on July 22, 2015, but the appellant failed to file a statement of claim within the requisite 30-day deadline under r. 14.03(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[2] The appellant alleges that the respondent sold him defective dairy cows. In response to the appellant’s complaint, on September 26, 2013, the respondent provided two new dairy cows. The respondent alleges that on that day, the parties concluded a settlement agreement and the appellant provided the respondent with a release. The appellant sold his farm and cows on October 4, 2013, went into receivership on October 23, 2013, and was discharged on May 26, 2015. There is no evidence that the appellant sought leave from the receiver or the court to commence a claim. It is not disputed that there was no further communication between the appellant and the respondent until November 11, 2015 when the appellant served its notice of motion for leave to file his statement of claim.

[3] The appellant concedes that the motion judge applied the correct test and considered the relevant factors, as set out in Nugent v. Crook, 1969 CanLII 389 (ON CA), 1969 CarswellOnt 951, 40 O.R. (2d) 110 (C.A.), at para. 2. However, he submits that the motion judge erred in rejecting the appellant’s explanation for the delay in filing his statement of claim and in finding that there was prejudice to the respondent as a result of the delay.

[4] We do not accept these submissions.

[5] First, it was open to the motion judge to find that the appellant’s explanation for the failure to file within the requisite time was inadequate because it lacked the necessary detail to explain the delay. Specifically, the motion judge noted the absence of the following particulars:

The plaintiff’s request for an extension is made without: (i) any suggestion of inadvertence; (ii) a statement as to when the plaintiff requested documents; (iii) information as to when the plaintiff received documents; and (iv) and explanation why after the plaintiff filed a notice of action to protect against an upcoming limitation period, it failed for months to file a statement of claim.

[6] Further, we see no error in the motion judge’s conclusion that there was prejudice to the respondent because, at the very least, the respondent had lost the opportunity to investigate the appellant’s claim, assess the validity of the appellant’s assertions regarding the health and productivity of the cows, and evaluate the reasonableness of the steps taken by the appellant in purported mitigation of his damages.

[7] While it is common ground that the appellant’s action was commenced within the relevant two-year limitation period, his failure to file the statement of claim on a timely basis brought his action to an end, absent the respondent’s consent or leave of the court. The expiry of the relevant two-year limitation period, on September 26, 2015 (two years after the appellant advanced a complaint and two new cows were provided to him) or on October 4, 2015 (two years after his damages crystallized on the sale of his farm and cows), gave rise to a rebuttable presumption of prejudice to the respondent. The appellant did not file any evidence to rebut this presumption nor does the recitation of the relevant events serve to do so. The onus is not on the respondent to put forward positive evidence that it was prejudiced: Nugent, at para. 3.

[8] As this court also noted in Nugent, at para. 3: “It is the plaintiff who is seeking the indulgence and it is for the plaintiff to establish proper grounds for the exercise of the discretion of the court.” The motion judge determined that the appellant failed to do so in this case. We see no basis to interfere with his discretionary decision.

[9] For these reasons, the appeal is dismissed.

[10] The respondent is entitled to its partial indemnity costs of the appeal, in the amount of $7,000.00, inclusive of disbursements and all applicable taxes.

“E.A. Cronk J.A.”

“R.G. Juriansz J.A.”

“L.B. Roberts J.A.”