Court of Appeal for Ontario

CITATION: Deutsche Postbank AG v. Kosmayer, 2020 ONCA 410

DATE: 20200622

DOCKET: C67913

Juriansz, Pardu and Huscroft JJ.A.

BETWEEN

Deutsche Postbank AG

Plaintiff (Appellant)

and

David Kosmayer, Dan Kosmayer, Kosmayer Enterprises Inc., Marketing Extensions Inc. and Kroum Vassilev

Defendants (Respondents)

Jonathan Bell, for the appellant

Douglas B.B. Stewart, for the respondents

Heard by video conference: June 18, 2020

On appeal from the order of Justice Bernadette Dietrich of the Superior Court of Justice, dated December 20, 2019, with reasons reported at 2019 ONSC 6997.

REASONS FOR DECISION

[1] We dismissed the appeal in this matter following the hearing. These are our reasons.

[2] The appellant appeals from the motion judge order dismissing its action against the respondents. The motion judge found that the delay caused by the appellant was inordinate and inexcusable and put the possibility of a fair trial for the respondents at risk and dismissed the action as a result.

[3] The appellant argues that the motion judge failed to consider the conduct of the respondents at various stages of the litigation and the contribution they made to the delay and erred in finding that the presumption of prejudice was not rebutted.

[4] We disagree.

[5] The motion judge addressed the appellant’s argument that both parties had contributed to the delay. She set out a chronology of the relevant events and the time taken for each. The motion judge found that “the action virtually ground to a halt” following delivery of the appellant’s initial affidavit of documents, and that the delay of over nine years since the commencement of the action was inordinate.

[6] The motion judge considered the appellant’s excuses for its delay and found that they were neither reasonable nor persuasive. For example, she found that the respondents’ request to translate documents was reasonable and that the delay caused in translating the documents ought to have been foreseen.

[7] The motion judge applied the relevant legal principles and made no error in doing so. Her decision that the appellants did not rebut the presumption of prejudice caused by the delay is a discretionary decision that is entitled to deference from this court. There is no basis to interfere with it.

[8] The appeal is dismissed. The respondent is entitled to costs of $20,000, inclusive of taxes and disbursements.

“R.G. Juriansz J.A.”

“G. Pardu J.A.”

“Grant Huscroft J.A.”