Court of Appeal for Ontario

Date: 2019-02-25 Docket: C65602

Judges: Simmons, Tulloch and Brown JJ.A.

Between

Sohan Singh Plaintiff (Appellant)

and

Stephen Dennis James Braithwaite Defendant (Respondent)

Counsel

Patrick Di Monte, for the appellant

Brian Pickard, for the respondent

Heard and released orally: February 25, 2019

On appeal from: the order of Justice Benjamin Glustein of the Superior Court, dated June 21, 2018.

Reasons for Decision

[1] The appellant appeals from the order dated June 21, 2018 dismissing for delay his action for solicitor negligence against the respondent.

[2] We see no merit in the appeal. The solicitor negligence action was commenced in August 2009 and related to the dismissal of a motor vehicle accident action that related to two accidents that occurred in 2001.

[3] The appellant has provided no meaningful response to the motion judge's finding of inordinate and inexcusable delay giving rise to a strong presumption of prejudice.

[4] Concerning the solicitor negligence action, the motion judge found it took the appellant more than five years to answer his undertakings and that this delay was unexplained. These conclusions are well supported by the record.

[5] Moreover, we see no error in the motion judge's conclusion that actual prejudice resulted from the delay. Given the passage of time and missing evidence there was no realistic possibility that a trial within a trial could occur.

[6] The appeal is therefore dismissed. Costs of the appeal are to the respondent on a partial indemnity scale in the agreed upon amount of $10,000.00 inclusive of disbursements and applicable taxes.

"Janet Simmons J.A."

"M. Tulloch J.A."

"David Brown J.A."