Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20240202 DOCKET: COA-23-CV-0949

Benotto, Roberts and Sossin JJ.A.

BETWEEN

Kenneth James Plaintiff (Appellant)

and

Rattan Gupta aka Ray Gupta, 2339011 Ontario Inc., April Vuong aka April Quach, Vectorspace Game Studios Inc., Jacinto Vieira aka Jay Vieira, and Fogler, Rubinoff LLP Defendants (Respondents)

Counsel: Michael R. Kestenberg, for the appellant Alfred J. Esterbauer and Niki Manwani, for the respondent, Fogler, Rubinoff LLP

Heard: January 31, 2024

On appeal from the order of Justice A. Duncan Grace of the Superior Court of Justice dated July 31, 2023.

Reasons for Decision

[1] The appellant appeals the dismissal for delay of his action and the dismissal of his motion to extend the time to set the action down for trial. He argues that the motion judge erred in his application of the governing principles. The appellant further argues that the motion judge erred in dismissing his entire action when only one respondent, Fogler, Rubinoff LLP (“the law firm”), sought to dismiss the action for delay.

[2] At the conclusion of the appellant’s submissions, we dismissed the appeal with reasons to follow. These are our reasons.

[3] In our view, the appellant’s submissions do not reveal any reversible error with the motion judge’s decision but effectively argue that the motion judge should have weighed the evidence and considered the applicable governing principles differently and come to a decision in the appellant’s favour. We are not persuaded that appellate intervention is warranted.

[4] The respondent law firm brought a motion to dismiss for delay the appellant’s action under r. 24.01(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg 194. The applicable provisions of r. 24.01(2) compel a court to dismiss an action for delay if the action has not been set down for trial or terminated by any means by the fifth anniversary of the commencement of the action, “unless the plaintiff demonstrates that dismissal of the action would be unjust.”

[5] The motion judge detailed the history of these proceedings. In particular, he highlighted the failure of the appellant to take any steps to move the action forward following the close of pleadings in 2017, notwithstanding the allegations that the action was statute-barred. He noted the further delay by the appellant in taking any further steps to seek a status hearing notwithstanding the respondents’ refusal to consent to any extension, as well as receipt in December 2022 of the law firm’s motion record seeking dismissal of the action for delay. It was not until March 20, 2023 that the appellant’s responding and cross-motion record, seeking a status hearing and an order extending the time to set the action down for trial, was served.

[6] The motion judge considered the appellant’s reasons for the more than five years of delay and rejected them as unacceptable. He concluded that the delay was inordinate and inexcusable. He stated:

This is not a close call. Nothing in [the appellant’s] list of explanations is acceptable for the period to, let alone beyond, September 17, 2021. Until March 2023, this action was treated as a placeholder. Long silence was briefly broken by sporadic communications, some of which promised action that was not taken. Bluntly, I am staggered by the apathy shown, even in the face of clear and unmistakable messages from the moving party and Vieira that delay was a crucial issue from their perspective.

[7] The motion judge noted the prejudice to the professional reputations of Mr. Vieira and the law firm, as well as to the administration of justice, because of the passage of time. As the motion judge further observed, “the proper adjudication of disputes and the administration of justice demands that matters progress. The alternative is complacency which, in turn, places an additional burden on a justice system that is already stretched too far. Further it is unfair to the [respondents].”

[8] The motion judge adverted to r. 24.01(2) and the correct legal principles and considered all the relevant circumstances. On any view of the evidence, the long and inadequately explained delay and the ensuing prejudice in this case supported the motion judge’s dismissal of the entire action. Absent reversible error, which we do not see here, the motion judge’s decision is subject to considerable appellate deference.

[9] Nor do we see any error in the motion judge’s dismissal of the entire action notwithstanding that the other respondents did not bring a motion to dismiss for delay. The inordinate delay, the inadequacy of the appellant’s explanations for the delay and the prejudice arising by the delay apply to all of the respondents.

[10] Accordingly, the appeal is dismissed. As agreed, Fogler, Rubinoff LLP, the only respondent appearing, is entitled to costs of the appeal in the all-inclusive amount of $15,000.

“M.L. Benotto J.A.”

“L.B. Roberts J.A.”

“L. Sossin J.A.”