Court File and Parties
CITATION: 1781808 Ontario Ltd. v. Chahbar, 2017 ONSC 556
COURT FILE NO.: 4011/11
DATE: 20170127
CORRECTED RELEASED: 20170203
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: 1781808 Ontario Ltd, Plaintiff
AND:
Adnan Chahbar, Defendant
BEFORE: The Honourable Mr. Justice J. Donohue
COUNSEL: H. Ahmad Counsel, for the Plaintiff
M. Butkus and J. McNair Counsel, for the Defendant
HEARD: November 30, 2016
ENDORSEMENT
A. Ruling on Motion to Dismiss
[1] Defendant moves for dismissal based on delay pursuant to R. 24.01. Defendant’s motion is dismissed.
[2] To succeed Defendant must show either that delay has been;
a. Intentional or contumelious or;
b. Inordinate or inexcusable such that it gives rise to the substantial risk that a fair trial of the issues will not be possible. (ie. Prejudice to the Defendant)
See Langenecker v. Sauve, 2011 ONCA 803 at par 5
[3] Grounds “a” and “b” will be considered separately.
Ground “a”
[4] Defendant’s arguments do not establish that delay has been intentional or contumelious. No disdain or disrespect for the court process or violation of court orders is shown against the Plaintiff.
[5] The history of the proceedings reveals that the Plaintiff has taken substantial efforts to move the litigation forward. The details of those efforts are shown by the court records.
Ground “b”
[6] The delay herein, approximated at three years, has not been as lengthy as other cases in which courts have refused to dismiss.
[7] Much of the delay herein was occasioned by the unavoidable requirement of two former counsel for the Plaintiff to withdraw due to conflict of interest.
Assessing prejudice:
[8] I find that the delay is not inordinate or inexcusable. Accordingly there is no presumption of prejudice to the Defendant. Has there been proven prejudice to the Defendants?
[9] It is noted that:
a) All witnesses are available;
b) All documents have been preserved;
c) The matter in issue is largely documentary;
d) In commercial cases witnesses may review documents to refresh memory;
e) Recollections of parties are preserved in discovery transcripts from 2012;
f) Defendant has not been pressing this matter forward throughout its history.
[10] Prejudice to the Defendant is not proven.
B. Ruling on Plaintiff’s Request for an Extension of Time to Restore the herein Action to the Trial List
[11] The Plaintiff’s request is granted.
[12] The Court adopts the reasoning of paragraphs numbered 6 through 11 of Tab 3 of Further Written Submissions of the Plaintiff dated December 7, 2016.
[13] Those submissions are preferred to those of the Defendant, paragraphs numbered 17 through 24 at Tab 3 of written submissions of the Defendant dated Dec 13, 2016.
[14] Particularly persuasive submissions for granting the Plaintiff’s request are the factors already mentioned above in dismissing the Defendant’s motion for dismissal as well as the demonstrated intention of the Plaintiff to move this matter forward henceforth. It is noteworthy that two related actions are committed to further steps at the end of March and June of 2017 respectively.
[15] The Plaintiff is granted until June 30th, 2017 to set the herein action down for trial.
Costs
[16] Plaintiff submitted its outline on Dec 7, 2016. No response was received from the Defendant. Accordingly, I am fixing costs at this time. Making allowance for a certain degree of duplicated effort costs of the Plaintiff are fixed at $20,000.00 all inclusive of fees, disbursements and H.S.T., payable within 30 days of the date of this order.
Original Signed by Donohue, J.
The Honourable Justice J. Donohue
Date: January 27, 2017
Corrected Released: February 3, 2017
Corrigendum
Counsel for Plaintiff was listed incorrectly listed as M. Fleishchmann therefore the
following changes were made:
“COUNSEL: H. Ahmad Counsel, for the Plaintiff”