Court File and Parties

COURT FILE NO.: 10-20364

DATE: 2013/12/02

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Ann Lamb, Plaintiff

AND:

Bank of Montreal and Jane Bank Employee, Defendants

BEFORE: The Honourable Mr. Justice Robert J. Nightingale

COUNSEL:
Counsel, William G. Scott for the Plaintiff

Counsel, Laura White for the Defendants

HEARD: September 26, 2013

ENDORSEMENT

[1] The Defendants at this contested status hearing under Rule 48.14 seek a dismissal of the Plaintiff’s action which the Plaintiff opposes.

Factual background

[2] The status hearing proceeded on the affidavit evidence of the lawyers for the parties. The facts were not materially in dispute.

[3] The Statement of Claim issued on June 1, 2010 alleged that some time before a motor vehicle accident of September 24th 2004, almost six years earlier, the Defendant bank was negligent or breached its duty owed to the Plaintiff by not offering disability insurance coverage for her mortgage held by the bank if she was unable to work. The Statement of Claim was served three and half months later on September 22, 2010 along with a Request to Admit.

[4] The Defendants served a Notice of Intent to Defend in October 5, 2010 and their response to that Request to Admit on October 22, 2010. Because of the significant deficiencies of the Statement of Claim, the Defendants’ lawyers (“KRMC”) served a Demand for Particulars on November 3, 2010.

[5] The Plaintiff’s lawyers, Ferro and Co. (“Ferro”) did not respond to that initial request within the twenty day time period required under the Rules or to two follow-up letters from KRMC. No explanation at all was provided for that by the Plaintiff. This required the Defendants to bring a motion to compel the Plaintiff to respond to the Demand for Particulars that was served on March 10, 2011 returnable on March 29, 2011.

[6] Ferro only then provided his reply to that Demand for Particulars on March 24, 2011 which was clearly inadequate. It included thirteen bald statements that the “Defendant should do its own research” or “the particulars are in the Defendant’s file” and eight similarly bald statements that “the Statement of Claim is clear “.

[7] The Defendants’ motion was then adjourned on consent to the week of April 25, 2011 for a long motion but had to be further adjourned because of the failure of Ferro to deliver a Factum as required under the Rules. No explanation for that failure to comply with the rules was provided.

[8] Milanetti J., on the hearing of the motion on May 19, 2011 found that the Plaintiff’s responses that the “Defendants do their own research” were inadequate, rude and contained none of the material facts that were required to be provided to the Defendants. She also found that the other responses did not satisfactorily respond to any of the Defendants’ demand for particulars regarding the alleged advice provided by its employees to the Plaintiff. She stated clearly that it was insufficient to say that the particulars are in the Defendants’ file or that the Defendants should do their own research and that other responses were too vague and did not provide the material facts required in the pleading.

[9] She ordered that the Plaintiff provide a better response to the Demand for Particulars within twenty days unless a better Statement of Claim was forthcoming as required under her reasons. She also ordered that the Plaintiff pay the Defendants’ costs of the motion fixed at $2500.

[10] Ferro’s lawyer at the hearing clearly understood the terms of and reasons for the order at the hearing and agreed and undertook then to comply with the twenty day time limit. However, Ferro did not amend the fresh Statement of Claim until June 28, 2011 and only then after he received the Defendants’ letter of June 22, 2011 confirming that the Plaintiff was in default of Milanetti J.’s timeframe and costs order and threatening to bring a motion to dismiss the action. However, the Plaintiff did not then pay the costs that were immediately payable under that order and did not serve that fresh Statement of Claim until July 5, 2011, without any explanation for either delay.

[11] KRMC ordered the transcript of the hearing before Milanetti J. to determine if the fresh Statement of Claim complied with her Order as their student’s notes were not suffice. They received it on November 2, 2011.

[12] On Nov. 2, 2011, KRMC provided the draft Order of Milanetti J. requesting Ferro approve it and also payment of the $2500 costs. Ferro asked for the Defendants’ Statement of Defence on November 3, 2011 and KRMC immediately replied that the fresh Statement of Claim should be struck out for failure to comply with the Order of Milanetti J. KRMC then had to follow up with Ferro on four occasions for his return of the approved Order but Ferro, despite promising a reply “shortly” on December 16, 2011 and “within 24 hours” on January 26, 2012, did not forward any such approval until March 6, 2012.

[13] That approval response, however, was also clearly inadequate as it did not provide a signed approval of the Order as to form and content nor authorization to KRMC to approve it as the Plaintiff’s agent. KRMC were then required on four further occasions to write to Ferro for authority to approve the Order which, inexplicably, Ferro simply ignored until May 2, 2012, which was six months after it was originally sent to them.

[14] The Plaintiff, on May 7, 2012 almost one year after the Order of Milanetti J., paid the costs of the motion of $2500 after three demands including the Defendants’ notification of their intention to proceed with a motion to dismiss the action.

[15] On May 12, 2012 Ferro demanded a Statement of Defence as it had earlier on December 16, 2011 and March 2, 2012. KRMC’s position since November 3, 2011, however, had been that the fresh Statement of Claim that they received in July, 2011 simply repeated many of the same errors and deficiencies in the original Statement of Claim and did not comply with the terms of the Order of Milanetti J. KRMC again notified Ferro accordingly of those deficiencies on March 6, May 24 and June 4, 2012 and their intention to bring an immediate motion to strike out the fresh Statement of Claim because of them. Ferro agreed on May 28, 2012 not to note the Defendants in default pending that motion.

[16] On June 18, 2012 Ferro impliedly but essentially admitted that the Defendants were correct in their position that the fresh Statement of Claim was also improper by agreeing to bring a motion within four weeks to amend the fresh Statement of Claim. However, Ferro did not in fact do so, again without explanation, until September 18, 2012, three months after the initial undertaking to do so within four weeks, and even though a motion was not required as pleadings remained open.

[17] Reid J. made an Order on October 4, 2012 granting the Plaintiff leave to deliver an amended fresh Statement of Claim. Reid J. ordered that his Order and amended claim be served on the Defendants’ lawyer forthwith. Again, inexplicably, Ferro did not comply with that Order either, not serving it until January 7, 2013.

[18] A status hearing was issued by the court on October 22, 2012.

[19] On December 4, 2012 Ferro wrote to KRMC purporting to serve the amended fresh Statement of Claim but failed to enclose it. KRMC wrote to Ferro four times after that in December and in January 2013 asking for it. However, Ferro only sent a draft copy on January 11, 2013 but did not formally amend and serve the amended fresh Statement of Claim until April 4, 2013, after the status hearing was scheduled to proceed. This was nine and a half months after they agreed to amend it and over six months after Reid J.’s Order requiring it be done forthwith. Again, no explanation was provided.

[20] Shortly after receiving the Status Notice from the Registrar in late October 2012, on December 7, 2012, Ferro forwarded a written status hearing consent form to KRMC asking that they consent to the adjournment of the status hearing to early October 2013 with the terms that the Statement of Defence be filed by February 21st 2013, examinations for discovery of the parties be completed by May 10, 2013 and that the Trial Record be filed by September 20, 2013. KRMC objected to that proposal on December 11, 2012, in part because they had not yet received the Order of Justice Reid of October 4, 2012 or the fresh Statement of Claim as amended pursuant to that Order.

[21] On December 19, 2012, the court issued a Notice of Status Hearing returnable January 22, 2013. Parayeski J. ordered that the Plaintiff’s affidavit material had to be served by February 12, 2013 and Factum by March 22, 2013 and adjourned the status hearing to April 16 or 18, 2013.

[22] The Plaintiff did not file her affidavit material as required by Parayeski J. by February 12, 2013 or her Factum by March 22, 2013. Ferro’s explanation was that he had to report this matter to his insurer on January 28, 2013 and have the insurer’s counsel assist him. However, no request was made to extend the timelines of that Order. Mr. Ferro filed his affidavit on this motion sworn April 5, 2013. On April 18, 2013 Reid J. accordingly ordered a new timetable and the status hearing was again adjourned.

[23] The Plaintiff has not delivered a sworn Affidavit of Documents nor have the Defendants. Examinations for discovery have not even been scheduled.

Applicable Law

[24] The Ontario Court of Appeal since 2011 has clearly confirmed the test applicable to a Rule 48.14 hearing. The onus is on the Plaintiff to show cause why the action should not be dismissed for delay and must demonstrate that:

a) There is an acceptable or reasonable explanation for the litigation delay; and

b) If the action was allowed to proceed, the Defendant would suffer no non-compensable prejudice. Faris v. Eftimovski https://www.canlii.org/en/on/onca/doc/2013/2013onca360/2013onca360.html; 1196158 Ontario Inc. v. 6274013 Canada Limited https://www.canlii.org/en/on/onca/doc/2012/2012onca544/2012onca544.html; Khan v. Sun Life Assurance Canada https://www.canlii.org/en/on/onca/doc/2011/2011onca455/2011onca455.html.

[25] The additional principles from those cases confirm that the test is conjunctive not disjunctive. Even if the Plaintiff could provide a satisfactory explanation for the delay, the action will be dismissed if there would be prejudice to the Defendant. If the Plaintiff is not able to provide a satisfactory explanation for the delay, it is still open to the judge to dismiss the action even if there is no proof of actual prejudice to the Defendant. 1196158 Ontario Inc. As noted in Faris, status hearings are no longer to be treated by judges as an opportunity to provide a mechanism to manage the action or to get it back on track.

[26] Timelines imposed by the Rules of Civil Procedure or judicial orders should be complied with although the court should allow some latitude for unexpected and unusual contingencies that make it difficult or impossible for a party to comply with. Technical noncompliance should not penalize the parties and frustrate the fundamental goal of resolving disputes on their merits. The rules and procedural orders are to be construed in a way that advances the interests of justice. Finlay v. Paassen, https://www.canlii.org/en/on/onca/doc/2010/2010onca204/2010onca204.html.

[27] However, at some point, the party who has failed to respect the rules designed to ensure timely and efficient justice loses the right to have its dispute decided on the merits. Otherwise, the rules and timelines imposed would cease to have any meaning and any hope of ensuring timely and efficient justice would be seriously jeopardized. 1196158 Ontario Inc.

[28] The Plaintiff submitted that that the test established by the Ontario Court of Appeal in these cases was not rigid i.e. that the court should consider, in addition, the “contextual approach” to account for all relevant factors for a balancing approach, relying on March d’Alimentation Denis Theriault Ltd v. Giant Tiger Stores Ltd. (2007) https://www.canlii.org/en/on/onca/doc/2007/2007onca695/2007onca695.html, 87 O.R. (3d) 660 (C.A.) and Pouget v. Hynes https://www.canlii.org/en/on/onscdc/doc/2013/2013onsc487/2013onsc487.html.

[29] The Court of Appeal in Marche, as confirmed in Finlay, was specifically dealing with a motion to set aside the Registrar’s order dismissing the action for delay by not setting it down for trial under rule 48.14 (4). The court approved the four factors that were to be considered on such a motion on a contextual basis being explanation of the litigation delay, inadvertence in missing the deadline, whether the motion was brought promptly and whether there was any prejudice to the Defendant.

[30] The Court of Appeal in those two cases did not suggest that that contextual approach would also apply to status hearings under rule 48.14(8) and (13). In addition, the Court of Appeal in Khan, 1196158 Ontario Inc., and Faris did not state that that contextual approach was to be applied under that rule in addition to the clear two-part conjunctive test it mandated. It did state in Bolahan v. Hull, https://www.canlii.org/en/on/onca/doc/2012/2012onca121/2012onca121.html that the defendant’s conduct in the litigation could still have a bearing on the assessment of the reason for the delay and how the court should exercise its discretion under rule 48.14.

[31] Although the Court of Appeal in Faris referred to the Wellwood v. Ontario Provincial Police https://www.canlii.org/en/on/onca/doc/2010/2010onca386/2010onca386.html, Scaini v. Prochnecki https://www.canlii.org/en/on/onca/doc/2007/2007onca63/2007onca63.html and Marche decisions, all three of which involved setting aside Registrar’s dismissal orders and the contextual approach test , it simply referred to their main principle that since the purpose of Rule 48 was to enable the court to control the pace of litigation, prevent abuse of its processes and ensure disputes are resolved in an effective manner, the Plaintiff bears the primary responsibility for its progress and the consequences of conducting the action in a dilatory manner.

[32] Similarly in 119615 Ontario Ltd., the Court of Appeal confirmed the principles that justice delayed is justice denied and that litigants were entitled to have disputes resolved quickly so they can get on with their lives. These principles were found in the Marche and Hamilton (City) v. Svedas Koyanagi Architects Inc. https://www.canlii.org/en/on/onca/doc/2010/2010onca887/2010onca887.html decisions which involved motions to set aside Registrar’s dismissal orders and the contextual approach test. However, the Court of Appeal in 119615 Ontario Ltd. made it clear that the two- part conjunctive test from Khan was the determining test under a Rule 48.14 status hearing.

[33] The Court of Appeal in Bolohan again reiterated the two-part conjunctive test from Khan as being the required test. It only referred to the Master’s decision of Koepcke v. Webster ONSC 357, which applied a contextual approach, as confirming the usual practice at the initial status hearing was to proceed on the basis of oral submissions and a full hearing thereafter on affidavit evidence if contested.

[34] The Divisional Court in Pouget v. Hynes https://www.canlii.org/en/on/onscdc/doc/2013/2013onsc487/2013onsc487.html recently suggested that the two-part conjunctive test from Khan was not a rigid test but one which includes the Khan criteria and a contextual approach as advocated in Scainini v. Prochnecki, taking into account all relevant factors to arrive at a just order in the circumstances.

[35] Even if there was some basis for that conclusion at the time of that decision in February 2013 based on earlier case law, the subsequent Court of Appeal decision of Faris in June 2013 now makes it clear that the two-part conjunctive test in Khan is the applicable one under Rule 48.14(13) without any application of the contextual approach as used previously in the Registrar’s dismissal orders line of cases.

[36] In that regard, I note and agree with the recent decision of MacKinnon J. of the Divisional Court in Deverett Professional Corporation v. Canpages Inc. https://www.canlii.org/en/on/onscdc/doc/2013/2013onsc6954/2013onsc6954.html which upheld a Master’s decision dismissing an action at a status hearing. In that case, the action was started in December 2009 and the Statement Defence and Counterclaim was served in February 2010. There was no communication then between the parties prior to the receipt by the plaintiff of the status notice from the court 23 months later in January 2012. Similar to this case, the plaintiff then contacted defendant’s counsel to request his consent to a timetable for the further steps in the action to which the defendant did not consent.

[37] The Master found that the plaintiff had not provided an acceptable explanation for the litigation delay which was sufficient reason to dismiss the action which he did even though the Master found that the plaintiff had only “partly” met its onus to demonstrate that if the action proceeded there would be no prejudice to the defendant.

[38] MacKinnon J. confirmed that the Master, who had followed the two-part conjunctive test reiterated on several occasions in the Court of Appeal in dealing with status hearing matters, was correct and that the “balancing approach” decisions, giving some consideration to the principle in favour of cases being determined on the merits, have been overtaken by recent decisions of the Court of Appeal.

[39] I agree and I prefer and am required to follow the reasoning and principles enunciated in Faris and the other decisions of our Court of Appeal.

Analysis

[40] With respect to the second part of the test, the Plaintiff’s evidence and position was that the Defendants have suffered no prejudice by any delays in the proceeding. The only relevant witnesses are the Plaintiff and the Defendants’ representative, the Plaintiff is still available for examination for discovery, both parties still have possession of all relevant documents and the Defendants still have full information and documents with respect to the Defendants’ dealings with the Plaintiff at the relevant time.

[41] The Defendants provided no evidence with respect to the issue of prejudice contrary to that evidence (even though there is no onus on them to demonstrate prejudice) and conceded that the Plaintiff had met the second part of the test that if the action is allowed to proceed, the Defendants will suffer no compensable prejudice.

[42] The real issue in this hearing is whether the Plaintiff has met the additional burden of demonstrating that there is an acceptable explanation for the litigation delay.

[43] It is significant in this case that the Statement of Claim was issued in June 2010, some six or more years after the cause of action arose. No explanation or evidence was provided as to whether Ferro’s office was only retained recently before June 2010 to commence this action or whether they had been retained shortly after the motor vehicle accident in 2004 to act for the Plaintiff on that matter and potentially this one but simply delayed this one for tactical reasons until June 2010.

[44] In either case, it was incumbent on the Plaintiff to proceed expeditiously with her action within the timelines stipulated under the Rules of Civil Procedure. Stale dated claims are more difficult to defend even if documents are not lost. As memories of witnesses fade over time, the passage of an inordinate length of time after a cause of action arises or after an applicable limitation period expires gives rise to trial fairness concerns. This is so even when timely notice of the claim has been provided. 1196158 Ontario Inc., p.20.

[45] There is no evidence in this case that timely notice of this claim was provided to the Defendants shortly after the motor vehicle accident of September 2004 or at any time prior to the issuance of the Statement of Claim in June 2010.

[46] The main cause of the delay in this action was the Plaintiff’s failure to deliver an adequate or proper Statement of Claim in the first place and her failure to properly and punctually amend it in a reasonable time after being served with the Demand for Particulars in early November 2010.

[47] No explanation at all, let alone an adequate one, was given by the Plaintiff or Ferro for:

a) Delaying service of the Statement of Claim for three and a half months;

b) Not responding to the Defendant’s Demand for Particulars for over four months and only then after being served with a motion requiring those particulars. In addition, her response to that Demand for Particulars was totally inadequate as found by Milanetti J.;

c) Not serving a Factum for the demand for particulars motion resulting in a delay of approximately three and a half weeks;

d) Not complying with the timelines of Milanetti’s, J.’s Order regarding the delivery of a fresh amended Statement of Claim, missing it by approximately twenty days, and then providing one which was also inadequate and did not comply with her Order. e) Ignoring for six months KRMC’s request to approve the draft Order of Milanetti J. so KRMC could have it issued and entered;

f) Not admitting her fresh Amended Statement of Claim was also inadequate and did not comply with the Order of Milanetti, J from November 11, 2011 to June 2012;

g) Her delay in preparing the last amended fresh Statement of Claim for three months from the time her lawyer promised to do so in June 2012 within four weeks.

h) Not actually amending and serving the amended fresh Statement of Claim pursuant to the Order of Reid, J. of October 4, 2012 for six months until April 4, 2013, (a draft copy was provided to the Defendant in that Motion Record).

[48] No affidavit from the Plaintiff herself that explains the delays or provides evidence confirming the merits of her action against the defendants was provided which absence is a significant factor to be considered. Counsel placing a file in advance, being negligent, or having a lack of proper organization bordering on negligence is not an acceptable explanation for delay. Marche; Saini v. Sun Life Assurance Co. https://www.canlii.org/en/on/onsc/doc/2013/2013onsc4463/2013onsc4463.html at para https://www.canlii.org/en/on/onsc/doc/2013/2013onsc4463/2013onsc4463.html#par1212</https://www.canlii.org/en/on/onsc/doc/2013/2013onsc4463/2013onsc4463.html#par12>. In any event, Ferro does not suggest in his affidavit that the delay occurred because the file “fell through the cracks”. This case is not the first time that Ferro has been found to not follow timelines required under the Rules.

[49] In addition, the Plaintiff has not served her sworn Affidavit of Documents and examinations for discovery have not yet been held.

Defendants’ Conduct and Delay

[50] The Plaintiff submits that the conduct of the Defendants in this litigation has a bearing on the court’s assessment of the reason for the delay and how it should exercise its discretion under Rule 48.13. Bolohan; Faris. The submission was that the Plaintiff faced some resistance from the Defendants to move the action forward and that the delay was not exclusively attributable to the Plaintiff.

[51] The record of the correspondence confirms however that the Defendants were trying to push the action forward by simply requiring the Plaintiff to provide a proper Statement of Claim so that they could deliver their Statement of Defence. It was the Plaintiff and Ferro who resisted those straightforward requests and initially ignored them for undue and unreasonable lengths of time and then didn’t comply with a court order requiring her to provide proper particulars or a properly amended Statement of Claim within twenty days. The Defendants’ waiting to receive the transcript of the hearing before Milanetti J. for approximately four months and their several requests thereafter for a proper Statement of Claim did not cause any significant delay and did not excuse Ferro from delivering a properly amended Statement of Claim in the first place as their offices fully understood the terms and reasons for that Order and what was required having been present for that motion.

[52] This in turn resulted in a further one year delay by Ferro until Ferro finally accepted the Defendants’ position as being correct. Nevertheless, Ferro still delayed in obtaining the appropriate Order for the amendment for another three and a half months thereafter when it could and should have been done so on consent within a matter of days. Ferro then did not formally amend the Statement of Claim for another six months.

[53] Accordingly, Ferro’s several requests for delivery of the Statement of Defence were effectively meaningless. This does not mean that it was the Defendants who were delaying the proceeding as they were perfectly entitled, as it turned out, to insist on the properly pled Statement of Claim which should not have been ignored by Ferro’s office.

[54] What is significant is that Ferro in his affidavit does not allege that the Defendants were resisting the Plaintiff’s attempts to move the action along (other than it refused to consent to his timetable noted below) which in turn provided some cause or excuse for the Plaintiff’s dilatory conduct. The affidavit simply discloses the history of the proceeding without any explanation for that dilatory conduct which is not satisfactory.

[55] Although Ferro did propose a timetable in December 2012 to have the action proceed and set down for trial by September 2013, which the Defendants did not consent to because of the outstanding status hearing, his doing so appears to be simply an attempt to avoid the consequences of the status hearing due to his previous dilatory conduct. This appears similar to what Plaintiff’s counsel did in the Khan decision by delivering his Trial Record in an attempt to avoid the status hearing and in the Deverett decision by requesting defendant’s counsel’s consent to a timetable for further steps in that action after being served with a Status Notice.

[56] Notwithstanding the onus on the Plaintiff, she did not provide her Affidavit of Documents or attempt to arrange examinations for discovery or take any steps to require the Defendants to provide a Statement of Defence after the status hearing was arranged.

[57] Even though KRMC saw a draft of the final amended fresh Statement of Claim in the Plaintiff’s Motion Record of September 2012 that was acceptable to them, their insisting on receiving a copy of the Order allowing it to be amended and the formally amended fresh Statement of Claim pursuant to that order was certainly understandable and reasonable given the history of the proceedings to that date caused by Ferro’s offices’ conduct. The Defendants caused no delay in that regard.

[58] This was not a case, unlike Bolohan, where the Defendants were resisting the Plaintiff’s attempts to move the action forward. Similar to Faris, it is the Plaintiff and Ferro who bear the primary responsibility for the progress of this action and who must conduct it in a proactive manner. The Defendants’ behaviour in this litigation was not by any means tantamount to their “lying in the weeds” and hoping to gain a tactical advantage as noted in 119158 Ontario Ltd and they did not delay the action to any significant extent or excuse the dilatory conduct of the Plaintiff and Ferro.

[59] Although this case does not involve proof of prejudice to the Defendants unlike the decision in Khan, it is similarly a first time status hearing involving an approximate two and a half year time period from the commencement of the action until the Status Notice being issued. The Plaintiff’s action in that case was dismissed.

[60] The action commenced in December 2007 in Faris claimed breach of contract damages occurring in 2003 and 2005. The status hearing was set for June 29, 2011 and adjourned to February 2, 2012. At that time, pleadings had not been finalized, no documentary production had been exchanged and no examinations for discovery had been taken place. The Plaintiff’s action was dismissed at the status hearing.

[61] Since Faris, our courts have recognized that the onus on the Plaintiff to show cause for the action should not be dismissed for delay is fair and must be met with specific evidence justifying the delay. The judge or master presiding at the status hearing is not to aim at fixing a tardy action but to dismissing it unless there is cogent evidence in the record establishing a reason not to do so. Saini at para s 3 and 8; 1745361 Ontario Inc. v. St.Paul’s Investments, https://www.canlii.org/en/on/onsc/doc/2013/2013onsc4642/2013onsc4642.html; Seaman et al. v. OneWord Energy Inc.et al., https://www.canlii.org/en/on/onsc/doc/2013/2013onsc5585/2013onsc5585.html.

[62] In my view, the Plaintiff is required to address by adequate and specific evidence the relevant time gaps and why the various steps in the litigation were not completed as required by the time frames impose. There simply is no evidence or explanation, let alone any compelling and convincing evidence or adequate explanation for those gaps and delays.

[63] This was not a case that involved unexpected and unusual contingencies or technical non-compliance with the Rules that would require some flexibility by the court in dealing with the Plaintiff’s failure to comply with those timelines as required under the rules.

[64] The Plaintiff has not provided a satisfactory explanation for the numerous delays in the proceeding and accordingly has not satisfied both parts of the two-part conjunctive test.

[65] Even though there may be no actual prejudice to the Defendants, approximately eight and half or more years had expired by the date of the original status hearing in January 2013 from the date of the cause of action in 2004. Even if the relevant documents are still available, memories of witnesses fade and the documents’ significance becomes shrouded. As noted in 1196158 Ontario Ltd, the more time that passes, the more difficult it is to defend the case and even more so by the time the trial would actually be held. In any event, there being no acceptable explanation for the delay by the Plaintiff is sufficient to result in a dismissal of the plaintiff’s action.

[66] The Plaintiff’s action is accordingly dismissed. Absent any relevant offers to settle, the Defendants would be entitled to their costs of this action including this motion on a partial indemnity basis.

[67] If the parties are unable to agree on those costs, the Defendants can make their brief written submissions of no more than three pages in length plus their bill of costs within 10 days with the Plaintiff to respond similarly within 7 days after that.

The Honourable Mr. Justice Robert J. Nightingale

Date: December 2, 2013