Court of Appeal for Ontario

Date: 20220817 Docket: C69756

Huscroft, Harvison Young and Sossin JJ.A.

Between

Abeli Mutete Mugizi Plaintiff (Appellant)

and

Hoang Hong Ngo and Ba Van Huynh Defendants (Respondents)

Counsel: Samuel J. Petrillo, for the appellant Alexander Reyes, for the respondents

Heard: August 15, 2022

On appeal from the order of Justice Cynthia Petersen of the Superior Court of Justice, dated July 20, 2021.

Reasons for Decision

[1] The appeal was dismissed with reasons to follow. These are our reasons.

[2] The action arises out of a motor vehicle accident in January 2014. The action was commenced in March 2015, but was struck from the trial list on December 5, 2019 because no expert report was provided. Over one year later no report had been filed, and on February 17, 2021 the respondent brought a motion to dismiss the action for delay, returnable on July 20, 2021.

[3] An expert report was provided to the respondent on March 23, 2021 and the appellant brought a motion to restore the matter to the trial list. That motion was combined with the respondent’s motion to dismiss, and both were heard on July 20, 2021. The motion judge dismissed the appellant’s motion to restore the matter and granted the respondent’s motion dismissing the action for delay.

[4] The appellant argues that the only delay was caused by the COVID-19 pandemic. The appellant says that no deadlines were missed and the motion was brought promptly, within 30 days of the motion judge’s dismissal order. The appellant argues, further, that the motion judge erred in not weighing the actual and significant prejudice to the appellant caused by dismissing his action against possible prejudice to the respondent.

[5] We do not accept these arguments.

[6] The decision whether to restore the action to the trial list is a discretionary one. The burden was on the appellant to explain the delay and satisfy the court that it would not be unfairly prejudicial to the respondent to have the action restored to the trial list.

[7] The motion judge found that the delay was inordinate whether it began in December 2017, when a prior motion to dismiss was resolved, or December 2019, when the matter was struck from the trial list. The appellant adduced no evidence explaining the delay, beyond a bare reference to the COVID-19 pandemic. Nor was there evidence showing that the respondent had not suffered non-compensable prejudice as a result of the delay. In sum, the appellant failed to meet his burden and the motion judge dismissed his motion as a result. She made no error in doing so and there is no basis for this court to interfere with her decision in this regard.

[8] Nor is there any basis to interfere with the motion judge’s decision to dismiss the appellant’s action. The motion judge did not exercise her discretion unreasonably, nor did she act on an incorrect principle or make a palpable and overriding error on a factual matter: Sickinger v. Krek, 2016 ONCA 459, 132 O.R. (3d) 548, at para. 31. It was open to her to find that the delay was inordinate and that no evidence was offered to explain the lengthy periods of inactivity. Among other delays, the appellant did not seek to restore the action to the trial list for over 14 months after it was struck off. It was over seven years since the motor vehicle accident, and the appellant did not adduce any evidence that there would be no prejudice to the respondent as a result of the delay.

[9] The appeal is dismissed. The respondent is entitled to costs fixed in the amount of $10,000, all inclusive.

“Grant Huscroft J.A.”

“A. Harvison Young J.A.”

“L. Sossin J.A.”