Court of Appeal for Ontario
Date: 2019-01-24 Docket: C65449
Judges: Sharpe, Juriansz and Roberts JJ.A.
Between
Eddie Figueroa Plaintiff/Appellant
and
Narendrabhai Patel and Wawanesa Insurance Company Defendants/Respondent
and
Fenchurch General Insurance Company, added by an Order pursuant to Section 258(14) of the Insurance Act, R.S.O. 1990, c. 18 Third Party/Respondent
Counsel
William G. Scott, for the appellant
A. Charles Gluek, for Wawanesa Insurance Company
John K. Downing and Hermina Nuric, for Fenchurch General Insurance
Heard and released orally: January 18, 2019
On appeal from: the order of Justice Kofi N. Barnes of the Superior Court of Justice, dated May 2, 2018.
Reasons for Decision
[1] In our view, this appeal from the dismissal of the action for delay must be dismissed. This personal injury action arises from an accident that occurred in 2002. The claim was issued in 2004 and served late. It is now 14 years since the action was commenced and almost 17 years since the accident. As the appellant concedes, the delay is inordinate.
[2] The case law establishes that it is the primary responsibility of the plaintiff to move the action forward. The motion judge found that the plaintiff was responsible for the overall delay in this case. We do not accept the submission that the motion judge ignored evidence of the defendant's conduct and responsibility for some of the delay. The record supports the conclusion that the delay was inexcusable.
[3] Prejudice is presumed from the delay of this length. Moreover, there is clear evidence of actual prejudice in this case.
[4] Accordingly, the appeal is dismissed. Costs to Fenchurch General Insurance Company fixed at $10,000 inclusive of costs and disbursements, and costs to Wawanesa Insurance Company fixed at $4,000 inclusive of taxes and disbursements.
Robert Sharpe J.A.
R.G. Juriansz J.A.
L.B. Roberts J.A.