COURT FILE NO.: CV-15-520443 (Toronto) MOTION HEARD: 2020 01 22
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: J.M.L. Holding Corporation and Gary Muchula v. David Ryan and The Estate of William Colvin
BEFORE: MASTER R. A. MUIR
COUNSEL: Sabrina A. Lucenti for the defendant David Ryan, moving party Michael W. Carlson for the plaintiffs, responding parties
SUPPLEMENTARY REASONS FOR DECISION - COSTS
[1] On January 22, 2020, I heard a motion brought by the defendant David Ryan seeking a status hearing pursuant to Rule 48.14(5) of the Rules of Civil Procedure, RRO 1990, Reg. 194 (the “Rules”). The moving defendant requested a dismissal of this action.
[2] I released my reasons for decision on January 29, 2020. I made an order permitting this action to continue in accordance with a timetable established by Justice Firestone. I also requested written costs submissions. I have now received and considered those submissions.
[3] In my view, the plaintiffs have received a significant indulgence from the court. This action was approaching its fifth anniversary and had not advanced any further than the pleadings stage. A plaintiff bears the primary obligation to move an action forward but most of the efforts to do so were made by the defendants, at least until the fall of 2019. I also made a finding that the plaintiffs were not as responsive to the defendants’ communications as they should have been.
[4] The Rules require an action to be set down for trial within five years. This is a generous amount of time in most cases. The onus is on a plaintiff to explain why an action should be permitted to continue after the expiry of the five-year deadline. I found that plaintiffs met this onus in this action but in my view, it was not unreasonable for the moving defendant to have opposed an extension of time given the overall delay and lack of progress with this claim.
[5] For these reasons, I have concluded that it is fair and reasonable that there be no order for the costs of this motion.
Master R. A. Muir
DATE: 2020 03 03