Court of Appeal for Ontario

Date: 2022-03-07 Docket: C69254

Before: Simmons, Harvison Young and Zarnett JJ.A.

Between:

Ever Fresh Direct Foods Inc. Plaintiff (Appellant)

and

Jamia Islamia Canada Ltd. Defendant (Respondent)

Counsel: Haider Bahadur and Yingjun Huang, for the appellant Anser Farooq and Shivani Balcharan, for the respondent

Heard: February 25, 2022 by video conference

On appeal from the order of Justice Peter A. Daley of the Superior Court of Justice, dated February 19, 2021.

Reasons for Decision

[1] We see no basis on which to interfere with the motion judge's order declining to restore this action to the trial list, dismissing it for delay and discharging a certificate of pending litigation registered by the appellant.

[2] The proceeding was commenced by notice of application issued in October 2012 and was converted to an action at the request of the respondent in March 2013. The proceeding related to an alleged loan facility granted by the appellant to the respondent in 2008. After commencing the application, the appellant obtained a certificate of pending litigation in November 2012 and registered it against property owned by the respondent. The parties exchanged pleadings in August and September 2013.

[3] The appellant never served an affidavit of documents [1] and made no attempt to schedule discoveries until November 2017. The respondent declined to participate in discoveries, which the appellant scheduled for March 2018, among other reasons because of an unpaid costs order in a related proceeding between the parties for over $56,000 and because the appellant had not served an affidavit of documents.

[4] The appellant responded by setting the action down for trial in April 2018. However, it was struck from the trial list in August 2018 as it was not trial ready, including because the appellant still wished to conduct discoveries. The appellant first advised the respondent of its intention to move to restore the action to the trial list in May 2019, and proposed a discovery plan in July 2019, but did not arrange to proceed with a motion until September 2019. The appellant’s motion and the respondent’s cross-motion to dismiss for delay were originally scheduled for May 2020 but were not heard until November 30, 2020 because of the Covid-19 pandemic.

[5] The motion judge found that, apart from the relatively brief delay caused by the pandemic, the delay in the prosecution of the action was entirely the appellant’s responsibility, that the appellant had provided no reasonable explanation for its delay in moving the action forward and that such delay was both inordinate and inexcusable. He also concluded that an inference of prejudice arose from the lengthy delay. He said, “there is more than a reasonable likelihood that given the passage of time and its impact on witnesses’ memories, and the lack of documentary and oral discoveries, there is a substantial risk that a fair trial of the issues at stake will not be possible.”

[6] We see no error in the motion judge’s conclusions that responsibility for the delay lay with the appellant and that such delay was unexplained, inordinate and inexcusable. The appellant offered no explanation for the complete failure to take any steps to move the action forward between delivery of its statement of claim in August 2013 and November 2017 or for the delay between August 2018 through to May and then September 2019 after the action was struck from the trial list. Given the litigation history between the parties and the then existing delay, the motion judge was entitled to treat as reasonable the respondent’s refusal to participate in discoveries post-November 2017 based on the unpaid costs order in related proceedings and the appellant’s failure to serve an affidavit of documents.

[7] Concerning prejudice, as we have said, the action related to an alleged loan facility arranged in 2008. The disputed issues included the validity of the original agreement. We reject the appellant’s arguments that the motion judge should have concluded that cross-examinations on affidavits that occurred in relation to converting the application to an action and an unserved affidavit of documents lacking a lawyer’s certificate prepared in November 2013 could somehow ensure trial fairness. Simply put, they were not an adequate substitute for a proper discovery process. We see no basis for interfering with the trial judge’s conclusion that the appellant’s delay jeopardized the likelihood of a fair trial.

[8] Based on the foregoing reasons, the appeal is dismissed with costs to the respondent on a partial indemnity scale fixed in the amount of $10,000 inclusive of disbursements and applicable taxes.

"Janet Simmons J.A."

"Harvison Young J.A."

"B. Zarnett J.A."

Footnote:

[1] An affidavit of documents lacking a lawyer’s certificate sworn in November 2013 by the president of the appellant was included in the appellant’s material on the underlying motions. No proper affidavit of documents has ever been served.