Court File and Parties

COURT FILE NO.: CV-07-CV008578-CM00

DATE: 20220823

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Richard Paliani, Ron Cimino, Aurel Pauser, and Bradley Doyle

Plaintiffs

– and –

G. Dewar Laing, Stanley Dickson, 1433322 Ontario Limited, 1443120 Ontario Limited, and Windsor Hospitality Development Corporation

Defendants

COUNSEL:

Gino Morga, Q.C., Counsel for Richard Paliani

Steven D. Gadbois, Counsel for Aurel Pauser

Ron Cimino, Action has been dismissed

Bradley Doyle, Action has been dismissed

Charles Sinclair, Counsel for the defendant G. Dewar Laing

No One appearing for Stanley Dickson, 1433322 Ontario Limited, 1443120 Ontario Limited, and Windsor Hospitality Development Corporation

HEARD: June 2, 2022

REASONS ON MOTION TO DISMISS FOR DELAY

VERBEEM J.

A. Nature of the Motion

[1] The defendant, G. Dewar Laing (“Laing”), moves for an order dismissing this action for delay, pursuant to the court’s inherent jurisdiction to control its own process. Alternatively, Laing requests that his motion be treated as a status hearing, pursuant to r. 48.14 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, (“the Rules”), with the plaintiffs bearing the onus to show cause why the action should not be dismissed.

[2] The action is old. It was commenced over 15 years ago. It arises from events said to have occurred over two decades before it was argued. In the action, the only remaining plaintiffs, Aurel Pauser (“Pauser”) and Richard Paliani (“Paliani”), allege that during the time that Laing, a solicitor, represented them in matters related to commercial real estate and development transactions, he engaged in professional negligence, breached fiduciary duties owed to them, preferred the interests of the other named defendants, and engaged in “oppressive” conduct related to certain corporations in which the plaintiffs were officers, directors, and/or shareholders.

[3] Laing submits that the plaintiffs’ delay in the conduct of this action is inordinate, inexcusable and has resulted in an unrebutted presumption that his ability to have a fair trial has been irreparably compromised. He says the action should be dismissed against him.

[4] Conversely, Paliani and Pauser posit that the delay, while lengthy, is adequately explained by exceptional circumstances beyond their control including: the respective practice suspensions of two of their former counsel; and the ongoing unwillingness of the defendants, other than Laing, to disclose documentation that the plaintiffs say is necessary for the proper adjudication of damages. They also say Laing has not evidenced actual prejudice from the delay and any presumption of prejudice is rebutted because the parties were examined for discovery and affidavits of documents have been exchanged. They assert the motion should be dismissed.

[5] For the reasons that follow, I find the action should be dismissed against Laing. The plaintiffs’ delay in prosecuting this action is: inordinate; inexcusable because it is not adequately explained by the evidence; and has resulted in an unrebutted prejudice to Laing’s ability to have a fair trial.

[6] In explaining my conclusion, I will begin by detailing the nature of the parties’ pleaded factual disputes, the determination of which will likely turn, in part, on the respective abilities of Laing, the remaining plaintiffs and other non-party witnesses to accurately recall the details of events that occurred more than 20 years ago. I will then set out the uncontested history of this proceeding over the past 15 years. Next, I will detail the main aspects of the affidavit evidence offered by Paliani and Pauser, including their respective explanations for the delay. I will then set out the parties’ positions and identify the legal principles applicable to the moving parties’ remedial request. Finally, I will explain why the application of those principles to the factual matrix disclosed by the evidence justifies the dismissal of the action against Laing.

B. Nature of the Action and the Pleaded Factual Disputes

[7] In their statement of claim, the plaintiffs allege that Laing and the other named defendants (collectively referred to as the “Dickson defendants”) engaged in oppressive conduct pursuant to the provisions of the Ontario Business Corporations Act, R.S.O. 1990, c. B.16, (“OBCA”), and that Laing, in his capacity as the plaintiffs’ solicitor, was negligent and breached the fiduciary duties he owed to them. In addition to certain share purchase/sale remedies, the plaintiffs each seek: damages in the amount of $5,000,000 payable by Laing on a several basis; and additional damages in the amount of $5,000,000 for each plaintiff, payable by all of the defendants on a joint and several basis, for “unjust enrichment”. Accordingly, while only two plaintiffs remain in the action, the monetary claims against Laing are substantial and total at least $20,000,000.

[8] The plaintiffs’ pleaded claims centre around the assembly of various parcels of land in the City of Windsor and other related activities, to support the development of a hotel. In that regard, the plaintiffs allege that:

(i) In 1999, Pauser devised a plan to purchase and assemble lands for the development of a hotel property. He subsequently entered into several agreements to purchase real property and he engaged in negotiations with various hotel chains to develop it. In 2000, Pauser and the former plaintiff Cimino invited Paliani to join the venture and they all engaged in further efforts to purchase lands, acquire financing, and obtain a commitment from a hotel chain, including the Hilton Corporation (“Hilton”).

(ii) All of the named plaintiffs and a fifth individual not named as a plaintiff retained Laing to incorporate an entity to take title to the lands and engage in related hotel development activities. Laing did so.

(iii) In 2000, the defendant Stanley Dickson (“Dickson”), who was acquainted with one of the plaintiffs, indicated that he was willing to lend money to the plaintiffs’ corporation to finance the acquisition and development of the subject properties. The plaintiffs and Dickson entered into an agreement whereby Dickson would become a shareholder of the new corporation, without any control, and he would receive a collateral mortgage secured against the subject properties in exchange for advancing funds. The corporation’s obligation to repay Dickson would commence 15 months after the properties were acquired. The plaintiffs allege that Laing failed to prepare documentation that accurately memorialized their agreement with Dickson. They allege that instead Laing prepared documentation transferring a class of shares to Dickson that gave him control over the new corporation. The plaintiffs further allege that Laing directed them to sign that documentation without explaining it or recommending that they obtain independent legal advice. Finally, they allege that Laing “forced” them, in their personal capacities, to sign a promissory note in favour of Dickson in the principal amount of $1,500,000.

(iv) Some time later, Hilton advised the plaintiffs that it would establish a hotel on the properties, provided that the plaintiffs financed its construction. The plaintiffs allege that they eventually obtained a construction financing commitment from a third-party lender, but Dickson refused to agree to the terms of same, on the basis that the associated fees and interest rate were too high. Dickson then offered to provide financing for the plaintiffs’ venture himself at what he described as a favourable rate.

(v) In late June 2001, Dickson instructed Laing to make a demand of the plaintiffs on the $1,500,000 promissory note, even though payment was not yet due. Dickson subsequently threatened litigation against the plaintiffs if they did not transfer their shares in the subject corporation to him. In his capacity as the plaintiffs’ counsel, Laing advised them that they had no choice but to surrender their shares to Dickson, in exchange for a release on the promissory note. At that time, Laing was purporting to act for both Dickson and the plaintiffs. He failed to advise the plaintiffs of his conflict of interest or to recommend that they seek independent legal advice. The plaintiffs allege that in so doing, Laing breached his fiduciary duties to them and that he was negligent both through his advice and his failure to disclose his conflict of interest.

(vi) Subsequently, Laing and Dickson wrongfully transferred the plaintiffs’ shareholdings in the new corporation to Dickson. Laing then incorporated the defendant Windsor Hospitality Development Corporation, which proceeded to construct a hotel suitable to Hilton, on the lands owned by the plaintiffs’ former corporation.

(vii) As a result of the foregoing, the plaintiffs allege that Laing engaged in oppressive conduct pursuant to the OBCA.

[9] In his statement of defence, Laing denies all of the plaintiffs’ allegations of malfeasance. He pleads a factual matrix as follows:

(i) In September 2000, the four plaintiffs named in the title of proceeding, together with a fifth individual, entered into an agreement to purchase three parcels of land in the City of Windsor “in trust”. Then, all five of them retained him to incorporate a corporation to take title to the lands. He did so, with the incorporation of 1433322 Ontario Limited (“143”).

(ii) In November 2000, the five individuals made an agreement to purchase two additional parcels of land. The closing dates for all five transactions varyingly fell between November 3 and November 17, 2000. The total purchase price for all of the lands was $1,800,000. On or shortly before the first scheduled closing date (November 3, 2000), the plaintiffs advised Laing that they did not have funds to close any of the transactions and they were seeking an investor. On or shortly before November 3, 2000, the five individuals attended Laing’s office, accompanied by Dickson, who was then introduced to Laing for the first time. The plaintiffs advised Laing that they had obtained financing for the purchase of the various parcels of land through Dickson.

(iii) The plaintiffs instructed Laing to take the following steps, which they said were necessary in order to secure financing from Dickson:

1. Amalgamate 143 with a new company, which became 1443120 Ontario Limited (“144”).

2. Place title to the subject real properties in 144.

3. Have 144 make a promissory note in the amount of $2,311,406 in favour of Dickson, secured by a collateral mortgage against the five properties, with Dickson as mortgagee. The terms of the note were to include fixed monthly payments and a due date of February 15, 2002.

4. Prepare personal guarantees for the five individuals together with their spouses in the same amount as the promissory note.

5. Issue common shares in 144 to the five individuals and Dickson with Dickson’s interest equal to one-third of the total issued shares.

6. Prepare a resolution appointing Dickson as president and operational manager of 144, with control over its day-to-day operations.

(iv) Laing advised the plaintiffs to obtain independent legal advice with respect to the foregoing. They declined to do so based on their concerns that Dickson would change his mind about providing financing. Instead, the plaintiffs instructed Laing to prepare the foregoing documentation “as quickly as possible”.

(v) In November 2000, Dickson advanced funds to close the pending real estate transactions and Laing prepared the documentation to give effect to the plaintiffs’ bargain with Dickson, as he was instructed by the named plaintiffs and the fifth individual. The plaintiffs executed, among other things, resolutions: issuing Dickson one-third of 144’s common shares; appointing Dickson both as a director of 144 and its president; providing Dickson with management authority over 144’s day-to-day business operations; and authorizing the requisite promissory note and collateral mortgage. Laing denies that he or anyone else, forced the plaintiffs to execute the documentation. Rather, they did so of their own volition.

(vi) Subsequent to closing the five real estate transactions, the plaintiffs advised both Laing and Dickson that they did not have financing to construct a hotel on the assembled parcels. The only lender prepared to offer any funding for that purpose insisted that Dickson would have to assume personal liability for the entire construction loan. Dickson was not prepared to agree to that term.

(vii) Laing never demanded payment on the promissory note on behalf of Dickson, or at all, and he was never instructed to do so. Further, the plaintiffs did not seek legal advice from Laing with respect to surrendering their shares to Dickson in exchange for a release from their personal liabilities on the promissory note. Instead, before the loan was due, the plaintiffs advised Laing that they intended to offer their shares to Dickson in exchange for a release from such liability. They instructed Laing to take their offer of a share exchange for a release to Dickson. Laing did so, and Dickson eventually agreed. The plaintiffs were elated by Dickson’s response and instructed Laing to prepare the requisite documentation to affect their bargain.

(viii) Pursuant to the plaintiffs’ instructions, Laing prepared documents necessary to give effect to the shares for debt release exchange. On June 22, 2001, the plaintiffs executed: the share transfer provision on the back of their respective share certificates; resignations as directors; and a resolution appointing Laing as an officer and director of 144.

[10] Laing also pleads that because the original statement of claim was issued on February 2, 2007, the action was commenced after the expiration of the applicable limitation period.

[11] With the parties’ pleaded factual disputes defined, I will now turn to the chronology associated with the action’s initial progress and its subsequent substantial delay.

C. The Action’s Chronology

[12] The timing of the material events associated with the conduct of this action are not contentious. The parties generally agree, subject to additions by Paliani and Pauser, which are set out further below, that the moving party has accurately summarized the chronology of the action at paragraph 11 of his factum as follows:

Date Event

February 2, 2007 Statement of Claim issued. (Paliani, Pauser and Cimino are named plaintiffs)

April 30, 2007 Mr. Laing delivered his defence.

July 27, 2007 The defendants Stanley Dickson, 1433322 Ontario Limited, 1443120 Ontario Limited and Windsor Hospitality Development Corporation (the “Dickson defendants”) delivered their Statement of Defence.

August 9, 2007 The plaintiffs’ Statement of Claim was amended to include an additional plaintiff, Bradley Doyle.

August 14, 2007 Mr. Laing delivered his Statement of Defence to the Amended Statement of Claim. Pleadings closed in the action.

June 24, 2010 The defendants obtained an Order for Security for Costs as against the plaintiffs Ron Cimino and Bradley Doyle which required Cimino and Doyle to pay $40,000.00 into court collectively as security for costs of the proceeding up to and including the pre-trial. The court also ordered that until security was given, Cimino and Doyle could not take any step except to appeal from the order.

July 14, 2010 Mr. Laing served his affidavit of documents and Schedule ‘A’ productions.

July 29, 2010 Mr. Laing provided revised Schedule “A” productions.

October 20, 2010 Plaintiffs served a draft Affidavit of Documents with Schedule “A” productions.

July-November, 2010 Examinations for discovery occurred.

September 1, 2011 The parties completed mediation, which was unsuccessful.

October 21, 2011 Plaintiffs’ then counsel, Claudio Martini, served the plaintiffs’ trial record.

August 2012 The parties exchanged pre-trial memorandums.

February 7, 2013 At the first pre-trial, the action was set down for trial in November 2013. Later correspondence between the parties indicates that at the first pre-trial, the plaintiffs’ counsel suggested the matter should proceed to trial on a bifurcated basis with the liability portion of the trial scheduled to commence on November 4, 2013 for 9 to 10 days. Following the pre-trial, counsel for Mr. Laing wrote to the plaintiffs’ and Mr. Dickson’s lawyers to ask the plaintiffs to confirm the expected issues at the liability and damages stages of a bifurcated trial.

April 19, 2013 The parties attended a case conference before Master Pope at which the defendants sought clarification on the issues to be determined in the liability portion of the bifurcated trial, however plaintiffs’ counsel did not have instructions to respond to Mr. Greenaway’s February 7, 2013 letter. Plaintiffs’ counsel agreed to clarify the issues by responding to Mr. Greenaway’s February 7, 2013 letter within 30 days of the case conference.

June 5, 2013 Plaintiffs’ counsel, Maria Marusic, wrote to the defendants stating the plaintiffs were no longer interested in bifurcating the trial.

June 28, 2013 At a case conference before Justice Carey, the November trial dates were vacated because the plaintiffs were unwilling to proceed based on a bifurcated trial and the November 2013 dates were insufficient for a trial on both liability and damages. Justice Carey set a further pre-trial date, at which time a new trial date would be obtained.

February 13, 2014 By order of Master Pope on consent, the actions of plaintiffs Ron Cimino and Bradley Doyle were dismissed without costs.

March 3, 2014 Plaintiffs’ counsel served an amended trial record.

June 4, 2014 Counsel for Mr. Laing wrote to Master Pope advising he had consulted with other counsel and that there was little hope of settlement in the action. He requested that the June 13, 2014 pre-trial date be used to schedule a trial date on liability and damages.

June 13, 2014 At a pre-trial, Master Pope was unwilling to schedule a trial date because the plaintiffs did not confirm whether an expert report would be prepared before trial. The pre-trial was adjourned.

July 18, 2014 The plaintiffs confirmed they would be delivering an expert report from a Mr. Pontoni and the pre-trial was adjourned to October 8, 2014. To date, the plaintiffs have not served an expert damages report from Mr. Pontoni, or from any other expert.

October 8, 2014 At the 4th pre-trial, the plaintiffs advised that their expert, Mr. Pontoni, had not yet begun work on his expert report because he required further information from Mr. Dickson. The pre-trial was adjourned on consent to December 17, 2014 for the plaintiffs’ counsel to advise whether further documentation was required for the expert to complete the report, and when the expert’s report was expected.

December 17, 2014 At the 5th pre-trial, Master Pope was advised that Claudio Martini, counsel for the plaintiffs was temporarily suspended by the Law Society and that a Notice of Change of Lawyers needed to be served. The pre-trial was adjourned to a date to be set by the trial coordinator.

January 15, 2015 The plaintiffs’ former counsel, Claudio Martini of Shulgan Martini Marusic LLP, was removed as lawyer of record. Maria Marusic of Marusic Law was appointed as counsel for the plaintiffs.

May 6, 2015 The Law Society Tribunal placed interlocutory restrictions on Ms. Marusic’s licence to practice law.

July 29, 2015 A pre-trial was scheduled for July 29, 2015 for the plaintiffs to advise if and when they would deliver Mr. Pontoni’s expert report, and to set a trial date. However, the pre-trial was cancelled due to lack of judicial availability. A further pre-trial conference date was eventually scheduled for January 13, 2016.

January 5, 2016 Ms. Marusic served the plaintiffs’ last pre-trial brief.

January 13, 2016 At the 6th and final pre-trial, Justice Verbeem noted that the matter was still not ready for trial as Mr. Dickson was completing productions to the plaintiffs in order for the plaintiffs to obtain an expert valuation opinion. Justice Verbeem ordered a further judicial pre-trial to be held in October 2016 in order to allow the productions to be made.

September 28, 2016 Mr. Greenaway, counsel for Mr. Laing, wrote to the trial coordinator seeking a pre-trial conference to be schedule at the first possible date available. Mr. Greenaway also asked the parties to ensure production was complete and for the plaintiffs to be in a position to advise when the expert valuation could be complete.

November 22, 2016 Counsel for Mr. Laing re-iterated his request to the trial coordinator for a pre-trial conference to be scheduled.

October 31, 2016 The appeal division of the Law Society Tribunal ordered a full interlocutory suspension of Ms. Marusic’s licence however the suspension was stayed pending a judicial review by the Divisional Court.

November 2016 Mr. Greenaway retired and Michael Stocks assumed carriage of Mr. Laing’s defence.

February 16, 2017 The Divisional Court upheld Ms. Marusic’s interlocutory suspension, and the suspension took effect from the date of the judgment.

January 17, 2019 On or around this date, Mr. Stocks made contact with Ms. Marusic who advised that she would be bringing in new counsel, or be removed as counsel of record. A lawyer named Gino Morga indicated that he represented the plaintiff Paliani, and that he would be reviewing the file with a view to bringing a motion to compel Mr. Dickson to produce financial documentation which the plaintiffs required to prepare an expert report. However...a motion [has never] been brought to compel production from Mr. Dickson.

August 10, 2020 The defendants Stanley Dickson, 1433322 Ontario Limited, 1443120 Ontario Limited and Windsor Hospitality Development Corporation, formerly represented by David M. McNevin, appointed James H. Cooke of Miller Canfield LLP as counsel of record. [Eventually, Pauser retained Benjamin Tinholt to represent him in this action.]

December 18, 2020 Miller Canfield LLP was removed as lawyers of record for the Dickson defendants.

February 8, 2022 Benjamin Tinholt, counsel for the plaintiff Mr. Pauser obtained an order removing his firm as lawyers of record for Mr. Pauser.

[13] Some additional developments occurred after the moving party delivered its factum. Specifically, in March 2022, Mr. Gino Morga, Q.C., delivered a notice of change of lawyers from Ms. Marusic (who has not practiced since 2017) to himself, and began to formally represent the plaintiff, Paliani, in this proceeding. Further, Mr. Steven Gadbois began to formally represent the plaintiff, Pauser, in this proceeding in March 2022. Both have filed material in response to this motion.

[14] Although a new trial date was never assigned after the November 2013 trial date was “vacated”, there is no formal order striking the action from a trial list.

[15] In my view, the undisputed history of this proceeding demonstrates that Pauser and Paliani have taken no action through a court process to advance this litigation since January 2016. They have not requested a further pre-trial conference or case conference to address the alleged outstanding documentation they seek from the Dickson defendants, they have not brought a motion for production of same, and they have made no efforts to schedule a new trial date. The plaintiffs’ potential expert damages report has still not been prepared and the case does not appear to have progressed in any meaningful way since mid-2014 when the plaintiffs’ then counsel disclosed the plaintiffs’ intent to obtain such a report.

[16] In addition to the chronology, Paliani and Pauser have adduced evidence in response to the motion, which I will review below.

D. Mr. Paliani’s Evidence

[17] Paliani has delivered an affidavit in which he amplifies the surrounding circumstances of some aspects of the chronology set out above. Specifically, he deposes that:

(i) The plaintiffs’ file languished in Ms. Marusic’s office following her suspension in 2016. He understood that carriage of the file was assumed by Ms. Marusic’s associate, but that lawyer ultimately went on a “disability leave”. No further evidence in that regard has been adduced.

(ii) In early 2018, he engaged in discussions with Mr. Morga to determine whether he would assume carriage of the action. Subsequently, in 2019, Mr. Morga received and reviewed “two bankers boxes of material” related to the proceeding. Mr. Morga advised him that further documentation was required from the Dickson defendants in order to obtain an expert report quantifying the scope of the plaintiffs’ losses. According to Mr. Morga, the expert report was “all that was needed to proceed to trial”. In my view, this appears to essentially be the same circumstances that have prevailed since at least 2014.

(iii) In early 2019, Mr. Morga spoke with the Dickson defendants’ counsel, Mr. McNevin, who advised that he would follow up with the Dickson defendants to obtain the requested documentation.

(iv) Mr. McNevin passed away in June 2019.

(v) Eventually, Mr. Morga was advised that Mr. McNevin’s colleague, Mr. Cooke, had taken over carriage of the action on behalf of the Dickson defendants. Mr. Cooke advised Mr. Morga that he would do everything he could to obtain the requested documentation from Dickson.

(vi) Throughout 2019 and 2020, Mr. Morga, who was still not the plaintiffs’ lawyer of record, engaged in a number of conversations with both Mr. Cooke and Mr. Stocks who had taken over carriage of the action on behalf of Laing, after Laing’s previous counsel, Mr. Greenaway, retired.

(vii) In March 2020, Benjamin Tinholt, filed a notice of change of lawyer on behalf of the plaintiff, Pauser. Mr. Morga spoke to Mr. Tinholt who confirmed that Pauser would contribute to the costs of the anticipated economic loss report.

(viii) In August 2020, Dickson had still not produced the documentation requested by the plaintiffs’ expert and, as a result, Mr. Stocks (on behalf of the defendant Laing) attempted to arrange for the proceeding to come before an assignment court on October 26, 2020.

(ix) Mr. Cooke then brought a motion to remove himself as solicitor of record for the Dickson defendants on the basis that he could not obtain instructions. An order to that effect was made on December 15, 2020. The Dickson defendants have not complied with the terms of that order, which required them to appoint new counsel within 30 days of same. Further, Dickson has not responded to various emails and telephone messages from Mr. Morga.

(x) In February 2021, Laing changed his lawyer from Mr. Stocks to Mr. Sinclair of Goldblatt Partners LLP, who subsequently brought this motion to dismiss the action.

(xi) On February 8, 2022, Mr. Tinholt obtained an order removing himself as Pauser’s lawyer. In March 2022, Pauser retained Mr. Gadbois to act on his behalf.

(xii) Paliani has advanced approximately $10,000 toward the cost of the economic loss report and he wishes to proceed to trial. He has instructed Mr. Morga to obtain an expert report forthwith, even if it is only based on pro forma information disclosed by Dickson at his examination for discovery (i.e. without production of the additional documentation, which the plaintiffs have identified as the reason why the action has been stalled since 2014).

(xiii) Paliani believes there is no actual prejudice to Laing resulting from the delay because “all of the evidence is still available”. He also suggests that COVID-19 caused some additional delays from 2020 to 2022. He seeks the imposition of a judicial timetable designed to move the action to trial.

[18] Paliani’s affidavit was sworn in March 2022. At the time this motion was argued, in June 2022, there was no indication that an economic loss report, in any form, has been completed or obtained by the plaintiffs, despite Paliani’s sworn evidence that he authorized the report to be obtained forthwith based only on the information that the Dickson defendants have disclosed to date.

E. Mr. Pauser’s Evidence

[19] Pauser also amplifies the factual matrix set out above, through his affidavit evidence that:

(i) In 2013, the plaintiffs were not aware of Mr. Martini’s difficulties with the Law Society.

(ii) The trial of the liability issues scheduled in November 2013 did not proceed because Mr. Martini “changed the plaintiffs’ position with respect to bifurcation”. Pauser did not want to delay the liability trial date but the plaintiffs trusted Mr. Martini, who advised them at the time, that the matter “would likely be settled soon”.

(iii) The pre-trial conference on June 13, 2014, did not meaningfully proceed because Mr. Martini would not confirm whether the plaintiffs intended to obtain an expert report on damages. This caused further delay. Subsequently, Mr. Martini advised counsel for the other parties that a report would be obtained and a further pre-trial conference was scheduled for October 8, 2014. Mr. Martini advised the plaintiffs that that pre-trial conference was adjourned to December 2014 because their expert had not started work on the report.

(iv) The pre-trial conference schedule in December 2014 did not proceed because Mr. Martini was suspended by the Law Society. His suspension has continuously remained in place up to the time this motion was argued. The plaintiffs were initially advised that Mr. Martini’s suspension was only “temporary” and, as a result, they replaced him with Ms. Marusic of the same firm in January 2015. Unbeknownst to the plaintiffs, restrictions were then placed on Ms. Marusic’s licence in May 2015.

(v) A further pre-trial conference was scheduled for June 29, 2015, but did not proceed owing to a lack of judicial resources. The conference was adjourned to January 13, 2016.

(vi) At the January 13, 2016 conference, the court was advised that Dickson was completing the productions that would enable the plaintiffs to obtain the identified expert report. At the parties’ request, the pre-trial conference was adjourned to a new date to be scheduled in October 2016.

(vii) Paliani understood that the plaintiffs requested further financial records from Dickson, but they were difficult to obtain because: Dickson had sold the subject hotel; he resided in the United States of America; and he had no other ties to Canada.

(viii) Despite requests made by Laing’s counsel, the court did not schedule a further pre-trial conference in October 2016.

(ix) Unbeknownst to the plaintiffs, Ms. Marusic’s licence to practise law was temporarily suspended by the Law Society on October 31, 2016. The suspension was stayed pending a judicial review by the Divisional Court. Again, unbeknownst to the plaintiffs, the Divisional Court upheld Ms. Marusic’s suspension as of February 16, 2017. At the time this motion was argued in June 2022, her suspension was still in effect.

(x) Pauser first learned of Ms. Marusic’s suspension in 2019, when Paliani advised him that she could not represent them anymore. Paliani indicated that he would try to find someone else to represent the remaining plaintiffs. After hearing nothing further from Paliani, Pauser retained Mr. Tinholt in October 2019. COVID-19 negatively impacted their communication and eventually Mr. Tinholt secured an order removing himself as Pauser’s lawyer of record. Pauser then retained Mr. Gadbois in March 2022.

(xi) Pauser feels “betrayed” by Laing, Mr. Martini, Ms. Marusic, and Mr. Tinholt (the latter of whom, he asserts, took his money and does not appear to have done anything to move the matter along).

(xii) Pauser does not recall the issue of delay being raised in a serious manner by any party in the proceeding prior to this motion being brought.

(xiii) Pauser believes that all material witnesses that would be called at the trial are still alive, and affidavits of documents and discovery transcripts have preserved all of the relevant evidence.

F. The Parties’ Positions

[20] Laing submits that despite the action being commenced in 2007, it has not meaningfully progressed since the November 2013 liability trial date was vacated as a result of the plaintiffs changed position on bifurcation. Over eight years ago, the plaintiffs indicated that they required expert evidence to quantify damages. That evidence has still not been developed. Although the plaintiffs posit that they require additional documentation from the Dickson defendants to do so, they have never brought a motion to compel production.

[21] In the foregoing context, Laing asserts that: the delay in this matter is inordinate and not adequately explained by the plaintiffs; and the passage of over 15 years since the action was commenced results in a strong presumption of prejudice, in the sense that there is a substantial risk that a fair trial may no longer be possible. The remaining plaintiffs have failed to rebut that presumption.

[22] Laing submits that unlike the other defendants, he bears no responsibility for the inordinate delay in the action’s progress. In the first four years after the action was commenced, he: delivered pleadings; served an affidavit of documents; attended and participated in examinations for discovery; and attended a mandatory mediation. He is not in default, in any way, in this proceeding. The action should be dismissed against him.

[23] The plaintiffs acknowledge that a lengthy period of time has passed since the action was commenced. They identify three main reasons for their failure to advance the case to trial:

(i) Despite assurances and efforts made by two successive lawyers representing the Dickson defendants, the additional documentation required for an expert damages report has not been provided;

(ii) The plaintiffs have been forced to change their own counsel a number of times in this proceeding; and

(iii) Covid-19 caused inherent delays in the progress of the action.

[24] In addition, the plaintiffs submit that Laing has not adduced any evidence of actual prejudice arising from the lengthy delay. To the extent that there is a presumption of prejudice, it is rebutted by the following:

(i) The parties have exchanged affidavits of documents and productions, and there is no evidence that any relevant documentation is unavailable because of the passage of time;

(ii) The parties have been examined for discovery and the related transcripts are available;

(iii) Laing was prepared to proceed to trial on the issue of liability in 2013 on the record then available. There is no evidence that the complete record that was available in 2013 is no longer available;

(iv) In order to move the action forward, the plaintiff Paliani is prepared to obtain an expert report based only on the incomplete productions that have been made available by Dickson to date; and

(v) Laing did not complain about delay at any time prior to bringing this motion, which was originally returnable in July 2021.

[25] The remaining plaintiffs submit the motion should be dismissed and a timetable to ready the action for trial be imposed.

G. The Applicable Legal Principles

[26] Laing’s request for a dismissal of the action against him for reasons other than the adjudication of the plaintiffs’ claim on its merits, warrants a cautious judicial approach. Nonetheless, “there is a strong public interest in promoting the timely resolution of disputes... Litigants are entitled to have their disputes resolved quickly so that they can get on with their lives. Delay multiplies costs and breeds frustration and unfairness."[^1]

[27] The applicable case law recognizes that both the public interest and the fairness of the civil justice process demand that courts dismiss actions for delay in cases where the delay is inordinate, inexcusable, and a dismissal is necessary to protect the fair trial process. There are clearly instances where “an order dismissing an action for delay is the only order that can adequately protect the integrity of the civil justice process and prevent an adjudication on the merits that is unfair to a defendant."[^2] [Emphasis Added.]

[28] Rule 24.01 of the Rules permits a defendant who is not otherwise in default to move to have an action dismissed for delay in a number of circumstances, including: where a plaintiff has failed to move for leave to restore to a trial list, an action that has been struck off the trial list, within 30 days after it was struck off; or when circumstances described in paragraphs 1 and 2 of subrule 48.14(1) apply to an action, unless the plaintiff demonstrates that the dismissal of the action would be unjust. Paragraphs 1 and 2 of subrule 48.14(1) respectively apply to circumstances in which: an action has not been set down for trial or terminated by any means, by the fifth anniversary of the commencement of the action; and an action that has been struck off a trial list has not been restored to a trial list or otherwise terminated, by the second anniversary of being struck. The plaintiffs’ onus to demonstrate that the dismissal of the action would be unjust only applies to motions premised on circumstances described in the foregoing paragraphs of subrule 48.14(1). Otherwise, the onus rests on the defendant moving for a dismissal to establish that the action should be dismissed for delay.

[29] As I understand it, Laing does not rely directly on either rr. 24.01 or 48.14 to support his remedial request because an order striking this action off a trial list has not been made. Instead, Laing urges the court to exercise its inherent discretionary power to dismiss an action for delay, in order to grant the relief he seeks. The power of the Superior Court to dismiss an action for delay is not limited to powers conferred by any specific rule in the Rules, but “flows from the inherent power of the court to prevent an abuse of its own process."[^3] Courts may dismiss actions for delay even when the Rules do not mandate a dismissal.[^4]

[30] I accept Laing’s submission that the exercise of the court’s inherent jurisdiction to dismiss for delay should be guided by the same principles that apply to a motion for dismissal under r. 24.02(2). Specifically, an action should not be dismissed for delay unless:

(i) the plaintiff’s default has been intentional and contumelious; or

(ii) the plaintiff or the plaintiff’s lawyers are responsible for an inordinate, inexcusable delay that gives rise to a substantial risk that a fair trial might not now be possible.

[31] I do not give effect to Laing’s alternative request to treat this motion as a status hearing under r. 48.14(5) of the Rules, in which the plaintiffs are required to “show cause” as to why the action should not be dismissed for delay. The triggering timelines set out in r. 48.14(1) have not been breached in this instance. The action had already been set down for trial by the time the current provisions of r. 48.14 came into effect and the action has never been ordered to be “struck off” a trial list. In my view, the appropriate method by which to determine the effect and consequences of the extraordinary delay in this action remains the application of the court’s inherent jurisdiction guided by the principles applicable to a motion brought pursuant to r. 24.01 of the Rules. I shall apply those principles below.

H. The Principles Applied

[32] I am satisfied that the available evidence does not establish that the delay in this action results from an intentional and contumelious default on the part of the plaintiffs, nor is this a case where the plaintiffs have breached court orders resulting in inordinate delay. Therefore, the issues on this motion are as follows:

(i) Has the moving party met his onus to establish that the plaintiffs or the plaintiffs’ lawyers are responsible for inordinate and inexcusable delay?

(ii) Has the moving party met its onus to demonstrate that the delay gives rise to a substantial risk that a fair trial might not now be possible?

[33] I am satisfied that both questions must be answered in the affirmative. I will explain.

1. Has the moving party met his onus to establish that the plaintiffs or the plaintiffs’ lawyers are responsible for inordinate and inexcusable delay?

[34] Inordinate delay is measured by reference to the length of time from the commencement of a proceeding to the motion to dismiss. In this case, the delay measures more than 15 years. Coincidentally, in Langenecker, at para. 8, the court held that:

[E]ven accepting that litigation customarily moves at a somewhat stately pace and that this kind of litigation [medical malpractice] can move even more slowly than most, there can be no doubt that 15 years from the commencement of the action to the motion to dismiss constitutes inordinate delay.

[35] Similarly, I find that the delay in this action is inordinate. The action was commenced in February 2007, and concerns factual events that occurred in 2000 and 2001. The limitation periods applicable to the asserted causes of action against Laing have long since expired. The action is still not scheduled for trial.

[36] The next issue is whether the inordinate delay is “inexcusable”. The determination of that issue requires an assessment of the reasons for the delay and whether those reasons adequately explain the delay. Explanations that are “reasonable and cogent” or “sensible and persuasive” generally will excuse the delay, at least to the extent that an order dismissing the action would be inappropriate. In assessing the adequacy of the explanations for the delay, the court ought to consider the explanations offered for individual parts of the delay, the overall delay and the effect of the individual explanations that are offered, when considered as a whole. An action may still be dismissed for delay in circumstances where a plaintiff offers a sensible and persuasive explanation for part of a lengthy delay but fails to provide cogent explanations for many other lengthy delays in the course of a proceeding that has been outstanding for an inordinately lengthy period of time.[^5]

[37] In applying the foregoing principles, I find that the present action proceeded at a tolerable pace from its commencement in February 2007 until October 21, 2011, when the original trial record was served, after which the parties participated in a pre-trial conference and agreed to a bifurcated 10-day trial on the issue of liability, which was scheduled for November 2013. For reasons that are not adequately explained in the record before me, the plaintiffs or, at the very least, the plaintiffs’ counsel, resiled from the bifurcation agreement with the result that on June 28, 2013, the November 2013 trial date was “vacated” without a new date being fixed. Since that time, the plaintiffs have taken no steps to obtain a new trial date.

[38] Instead, despite signalling their readiness for trial through the delivery of a trial record in October 2011, the plaintiffs, through their counsel, determined some time in 2013 that they required further opinion evidence on the issue of damages.

[39] The action has remained at a standstill since 2014. The plaintiffs, through their counsel, claimed their potential expert required additional productions from the Dickson defendants in order to prepare an expert report. I find that in the almost nine-year period since the scheduled liability trial date was vacated, the plaintiffs have taken no meaningful steps to advance the progress of this action. I make that finding notwithstanding the plaintiffs’ explanations with respect to aspects of the delay that they attribute to: the successive suspensions of two of their former counsel; their asserted inability to obtain additional documentation from the Dickson defendants; and the consequences of COVID-19.

[40] Notably, none of the plaintiffs’ explanations are premised on evidence or submissions that the moving party Laing is responsible for, or has contributed to, any aspect of the delay in this matter.

[41] The plaintiffs have a duty to diligently advance their action. The primary responsibility to move the action forward rests with them. They assert that their failure to do so has largely been caused by the Dickson defendants’ ostensible unwillingness or inability to produce additional documentation despite assurances from their counsel that they would use their best efforts to do so. The difficulty with that explanation is that those assurances have been continuously offered by Dickson’s counsel dating back, at the very least, to the January 2016 pre‑trial conference, if not earlier, but actual production has never been made. It ought to have been obvious to the plaintiffs and/or their counsel that assurances from Dickson’s counsel alone were not sufficient to obtain the documentation they sought. Yet, the plaintiffs made no further efforts to obtain the documentation, other than to periodically repeat their ineffectual requests for same.

[42] In a plaintiff’s reasonable, diligent, and timely conduct of an action there comes a time when ongoing reliance on unfulfilled assurances by the defendants’ counsel to produce additional requested documentation can no longer serve as a cogent or reasonable explanation for the ongoing delay in the action’s progress. That time came in this case. In the face of a continued lack of production of the documentation the plaintiffs say they needed in order to proceed to trial, it was incumbent on the plaintiffs to do something more than to continue to “ask and wait”, for nearly a decade, for productions that were never forthcoming. The plaintiffs should have taken steps to move the action forward either by bringing a motion to compel production from the Dickson defendants in the eight-plus years since their asserted need for further documentation was identified, or by proceeding to trial with expert evidence developed only from the existing evidentiary record (a position Paliani adopted for the first time in response to this motion). After this motion was brought in 2021, the plaintiffs still did not bring a motion to compel the Dickson defendants to produce the documentation that they ostensibly seek.

[43] The lack of urgency surrounding the plaintiffs attempts to obtain additional documentation from the Dickson defendants is astonishing. The plaintiffs depose that once they obtain the economic loss report they will be ready for trial. They have been in that exact same position for the past eight-plus years. It is, in my view, inexcusable that that much time has passed without the plaintiffs taking meaningful additional steps to either obtain the documentation they say they require, or to proceed to trial without it.

[44] The plaintiffs argue that the issue of production from the Dickson defendants is complicated by the fact that Dickson resides in Michigan. I do not give effect to that position. The Dickson defendants have all attorned to the jurisdiction of this court. If the plaintiffs brought a motion for production of documentation from the Dickson defendants and an order in that regard was made, the Dickson defendants would be obligated to comply. If compliance was not forthcoming, the plaintiffs would have been in a position to seek various remedies for non-compliance including, but not limited to, a request to strike the Dickson defendants’ pleadings. Dickson’s residency in the State of Michigan has no impact on the foregoing litigation dynamics and it does not justify or explain any aspect of the delay in this proceeding.

[45] Further, whatever the production issues were and are between the plaintiffs and the Dickson defendants, it remains that there is no evidence that those issues were caused or exacerbated by the moving party’s conduct. There is no evidence that Laing possesses, controls, or has independent access to the documents or information sought by the plaintiffs nor that he is better positioned than the plaintiffs to obtain the subject documents and information from the Dickson defendants. There are no crossclaims between the moving party and the Dickson defendants, and the moving party does not independently suggest that he requires the documentation sought by the plaintiffs.

[46] Ultimately, I conclude that while the Dickson defendants’ ostensible unwillingness or inability to voluntarily produce the additional documentation originally requested by the plaintiffs, over eight years ago (albeit after the action was set down for trial), may explain a discrete aspect of the overall delay for a reasonable period of time after the request was initially made, it cannot excuse nearly a decade of delay in the conduct of this action. The plaintiffs had mechanisms available to them pursuant to the Rules of Civil Procedure to seek court assistance in obtaining the production they sought. They did not avail themselves of those procedures at any time, including after this motion was brought. Acting reasonably, and with a view to discharging their responsibilities to move the action along, they ought to have done so, long ago, or alternatively, they ought to have proceeded to trial without the additional production, as Paliani indicates he is now prepared to do.

[47] Similarly, I am not persuaded that the respective suspensions of Mr. Martini and Ms. Marusic in 2015 and 2016/2017, respectively, together with Pauser’s suggestion that Mr. Tinholt effectively did nothing to advance this matter from 2019 to 2022, adequately explain any significant portions of the delay in this action, in a manner that would excuse the overall inordinate delay.

[48] The evidence discloses that there may have been a brief delay attributable to Mr. Martini’s suspension in late 2014, but Ms. Marusic quickly assumed carriage of the file and actively participated in the proceeding up to the point of the Divisional Court’s affirmation of her suspension in 2017. It does not appear that any substantive efforts to advance the action were made by the plaintiffs during the period between the pre-trial conference in January 2016 and 2019, when Pauser retained Mr. Tinholt and Paliani began to consult with Mr. Morga. There is no evidence with respect to the inquiries and efforts the individual plaintiffs made from 2016 to 2019 to advance the progress of the action. The evidence does not disclose the specific content and/or timing of inquiries they may have made to whomever they perceived to be their counsel during that time period, with respect to the status of the matter, nor the specific content of any responses that they may have received. Moreover, in the period between 2016 and the time this motion was brought in mid-2021, it ought to have been patently obvious to both Paliani and Pauser that effectively nothing had occurred in this proceeding since the January 2016 pre-trial conference. They ought to have taken proactive steps to ensure that their counsel did something to move the matter forward at some point in the more than half a decade between the January 2016 pre-trial conference and the date the moving party’s motion was served in mid-2021. However, they did not.

[49] Pauser deposes that he feels he was deceived by Mr. Martini, Ms. Marusic, and Mr. Tinholt with respect to the conduct and progress of the proceeding. On the evidence before me, I am unable to find that he was, in fact, deceived. The plaintiffs have not adduced any evidence from any of their former solicitors explaining the delay or confirming the plaintiffs’ evidence with respect to same, including their own asserted inaction.

[50] In any event, whatever the issues were between the plaintiffs and their former solicitors, it is clear that those issues were not caused or contributed to by the moving party. Instead, Laing appears to be the only party that took tangible steps through the court, designed to move the matter forward after the January 2016 pre-trial conference. Laing alone sought further pre-trial conference dates from the court and Laing alone requested that the action be added to an assignment court list.

[51] Even in the context of the suspensions of Mr. Martini and Ms. Marusic, the plaintiffs’ efforts to advance the litigation after the 2013 trial date was vacated demonstrate, at a minimum, a lack of urgency together with a minimal if any concern over the potential for trial unfairness that their extreme delay may ultimately visit on the defendant, Laing.

[52] Finally, the plaintiffs point to COVID-19 as a partial explanation for their delay. Unquestionably, the pandemic resulted in a delay of all civil matters in Ontario for a period of time. Regular court operations were suspended from March 2020 to July 2020. In early July, 2020, the court resumed regular operations albeit with some proceedings conducted virtually or on a hybrid basis. With the resumption of regular operations, parties had the ability to bring a non-urgent motion in a civil proceeding for production of alleged relevant documentation, and the plaintiffs could have done so. They never did.

[53] Pauser also indicates that COVID-19 impacted his ability to communicate, to some extent, with his lawyer Mr. Tinholt. However, that aspect of the explanation for delay is not cogently particularized in the evidence before me and I am unable to place weight on it.

[54] Ultimately, I am satisfied that the moving party has met his onus to demonstrate that the totality of the circumstances surrounding the conduct of this action cannot excuse the over-15-year period of time between the initiation of the action and the motion to dismiss. While I am satisfied that the evidence discloses explanations for discrete periods of that delay, I am not satisfied that the evidence adequately explains the totality of the inordinate delay in this action, in a sensible or persuasive manner. Even accepting that some discrete periods of the delay are adequately explained, the balance of the delay remains inordinate and inexcusable. The evidence does not offer a cogent explanation as to why the prosecution of this action could not have advanced in a meaningful way had the plaintiffs acted with reasonable diligence in that regard over the course of the last eight years. To be clear, the moving party has met its onus to demonstrate that the plaintiffs’ explanations for the inordinate delay are not adequate and, as a result, the delay is inexcusable.

[55] I will now proceed to the issue of prejudice and the risk to Laing’s ability to have a fair trial.

2. Does the plaintiffs’ inordinate and excusable delay give rise to a substantial risk that a fair trial of the issues in litigation will not be possible?

[56] Laing, submits that his ability to have a fair trial on the merits of this case has been presumptively prejudiced by the plaintiffs’ inordinate and inexcusable delay. He reasons that the plaintiffs’ causes of action arose over 20 years ago and it is unreasonable to expect that material witnesses will still have reliable recollections of the facts in issue. Pleadings in the action closed almost 15 years ago and examinations for discovery were completed in 2010. None of the counsel who conducted the examinations for discovery remain involved in the action. There has been almost a nine-year delay since the last scheduled trial date. The plaintiffs have failed to adduce any cogent evidence rebutting the presumption of prejudice.

[57] Conversely, the plaintiffs submit that Laing has failed to establish that his ability to have a fair trial has been prejudiced by delay because:

(i) he has failed to adduce any evidence establishing actual prejudice;

(ii) any presumption of prejudice has been rebutted by the plaintiffs’ evidence that Laing’s ability to have a fair trial is adequately preserved by the availability of documentary evidence and transcripts from examinations for discovery; and

(iii) Laing has effectively acquiesced to the delay because he did not express any concern about it, prior to bringing this motion.

[58] In my view, in the context of the available evidence, none of the plaintiffs’ submissions, either individually or collectively, rebut the presumption of prejudice to Laing’s ability to have a fair trial. I will explain.

[59] When determining whether an action ought to be dismissed for delay, the concept of prejudice refers to the prospect that the plaintiffs’ delay has adversely affected the prospects for a fair trial.[^6] Actual prejudice, or the absence of any prejudice, to a defendant arising from the delay are obviously important factors in determining whether to dismiss an action. However, in a case such as this, where the plaintiffs have failed to prosecute their action in a timely manner and without a satisfactory justification for the totality of their inordinate delay, the court may dismiss the action even if there is no proof of actual prejudice to the moving party.[^7] Inordinate delay from the time the cause of action arose and, more particularly, delay after the passing of a limitation period gives rise to a presumption that the defendant is prejudiced by the delay. To overcome the presumption, the plaintiffs must show that no injustice would arise by permitting the action to proceed.[^8] The longer the delay, the stronger the inference of prejudice.

[60] I find that there is a very strong presumption of prejudice against Laing arising from the plaintiffs’ delay in the conduct of this action. The causes of action asserted against him are said to have arisen approximately 22 years ago. While I have been provided with very little information concerning the nature of the evidentiary record that was developed through the discovery process, the pleadings make clear that the parties advance mutually exclusive positions with respect to, among other things, the advice and directions Laing, as solicitor, gave to the plaintiffs, as clients, and the plaintiffs’ corresponding responses and instructions to him concerning several different issues and transactions, at various times during 2000 and 2001. Although the evidence on the motion does not directly address the issue, I also infer that the anticipated liability evidence at trial will be relatively voluminous because the parties previously scheduled a ten-day trial on that issue alone (which also included liability issues concerning the Dickson defendants).

[61] At the time the plaintiffs’ causes of action allegedly arose, Laing is said to have taken instructions from five different clients, one of which was never a plaintiff in this proceeding (and was not examined for discovery), and two of which were, but no longer are, named plaintiffs. Based on the nature of the pleaded factual disputes, I infer that there are also persons other than the parties themselves who can reasonably be anticipated to give evidence at trial, including the fifth client of Laing, the alternative construction financier and representatives of the Hilton Hotel chain. I am, therefore, satisfied that: the viva voce evidence at trial will likely include testimony from non-party witnesses who have not been examined for discovery; and key issues in the determination of the liability allegations made against Laing will be dependent not only on the ability of the remaining parties to accurately recall details of events that occurred nearly a quarter of a century ago, but the ability of non-parties to do so as well, assuming they are all still available to testify (which is not a fact that is unequivocally disclosed by the evidence on this motion).

[62] Finally, the limitation period applicable to the causes of action asserted against Laing expired over 15 years ago.

[63] The factors set out above give rise to a strong presumption that Laing’s ability to have the case fairly determined on its merits has been prejudiced by the plaintiffs’ delay. I make that finding while remaining mindful that inordinate delay alone does not always establish the requisite element of prejudice that is necessary to support a dismissal for delay and in certain cases it may be necessary for a moving party seeking a dismissal to show actual prejudice. However, in the totality of circumstances of this case, I am satisfied that the presumption of prejudice to Laing is sufficient to support a dismissal of the action against him.

[64] To rebut the presumption of prejudice, the plaintiffs must demonstrate that no injustice would arise by permitting the case to proceed.[^9] The longer the delay, the stronger the inference of prejudice given the tendency of memories to fade, witnesses to be unavailable and the tendency of documents and exhibits to go missing.

[65] The plaintiffs have attempted to rebut the presumption of prejudice, in part, by deposing to the existence of affidavits of documents and the fact that examinations for discovery were held approximately 12 years ago. Their conclusory statements in that regard do not adequately displace the operable presumption, in the context of the passage of over 20 years since the material factual events occurred. At best, the evidence of Pauser and Paliani in that regard demonstrates that aspects of the evidentiary record have been preserved, but their evidence on this motion fails to persuasively establish that the available evidence, including the anticipated viva voce evidence at trial, remains reliable despite the passage of time.

[66] In their respective evidence, neither Pauser nor Paliani: identify the material witnesses anticipated to be called at trial; describe their actual efforts, if any, to determine whether those witnesses remain available and competent to testify; describe the nature of the evidence anticipated at trial; indicate whether the former plaintiffs, Doyle and Cimino, were examined for discovery; or, set out any efforts they had made to determine the extent to which the anticipated witnesses have the ability to provide a complete and accurate account of the factual transactions upon which the causes of action against Laing are founded.

[67] The pleaded factual transactions associated with Laing’s asserted misconduct relate, among other things, to: relatively complex issues concerning the negotiation of transactional financing terms; the circumstances surrounding the execution of corporate governance documentation; attempts to secure construction financing and the terms associated with such financing; whether demand was made on a promissory note and, if so, the circumstances surrounding the demand (and by whom); and the circumstances surrounding the plaintiffs’ surrender of shares to Dickson and the execution of documentation related to same.

[68] Given the stark contrast in the factual narratives pleaded by the plaintiffs and Laing, respectively, this will likely be a case where the determination of liability turns on the witnesses’ ability to recall the disputed events in a clear, complete, and accurate manner and, potentially, the level of detail the witnesses are able to provide with respect to those events, during their trial testimony. Their abilities to do so will not only be important when the witnesses testify at trial but it will also impact the parties’ respective abilities to meaningfully challenge the direct evidence offered by adverse parties. Laing’s counsel’s ability to conduct fully informed cross-examinations of adverse parties and witnesses will be dependent on Laing’s own ability to accurately, completely, and clearly recall the circumstances surrounding events that occurred over 20 years ago.

[69] Without cogent evidence to the contrary, I am satisfied that the respective abilities of the parties and other material witnesses to accurately and fully recall the material aspects of the relevant factual transactions have invariably been eroded by the passage of over two decades since they occurred.

[70] In all the circumstances, I find that there is a significant risk that Laing’s ability to: have a fair trial; answer the significant allegations of professional misconduct made against him; and defend himself against an asserted damages claim in excess of $20,000,000 has been substantially compromised and prejudiced as a result of the plaintiffs’ delay. On the evidentiary record before me, I am not persuaded that that prejudice can be attenuated in any meaningful way. The deterioration of the parties’ and non-party witnesses’ abilities to accurately recall events material to the determination of the issues in this proceeding is not wholly remedied by the fact that the parties (and not the non-party witnesses) have been examined for discovery 12 years ago.

[71] Finally, I give no effect to the suggestion that Laing has been complicit in the delay because he did not complain about the pace of the litigation or threaten to bring a motion to dismiss for delay before doing so. Based on the evidence adduced on the motion, it is clear that Laing bears no responsibility for any aspect of the delay and he is the only party that took any steps through the court, to move the matter forward after the January 2016 pre-trial conference. The responsibility to advance the litigation in a timely manner rests with the plaintiffs, in any event of whether Laing complained about their failure to do so or threatened a motion to dismiss. Moreover, nearly one year passed between the time the motion was served and the time it was argued. The plaintiffs did nothing more to advance the litigation during that time. Laing has not been complicit in the plaintiffs’ delay, and he has not acquiesced to same.

I. Conclusion

[72] The delay in this proceeding is inordinate, inexcusable, and it has resulted in a substantial risk that a fair trial of the issues in the litigation will not be possible for the defendant Laing. Laing is not responsible for any of the delay. Instead, the delay is attributable to the actions and/or inactions of the plaintiffs themselves, and possibly the plaintiffs’ former solicitors, and Laing’s co-defendants (the Dickson defendants).

[73] As a result of the foregoing, an order will go dismissing the action for delay against the defendant, G. Dewar Laing, which is made pursuant to the court’s inherent jurisdiction to control its own process.

J. Costs of the Motion

[74] Laing, as the successful party, is presumptively entitled to costs of the motion fixed and payable within 30 days.

[75] Laing, Pauser, and Paliani have all delivered costs outlines referrable to the motion.

[76] The parties agree that the issues on the motion were extremely important.

[77] Mr. Sinclair, who argued the motion on behalf of Laing, has 22 years of experience. He expended approximately 13 hours of time in relation to the motion. His hourly rate is $350. He was assisted by Ms. Philipupillai, who has four years of experience, bills at the rate of $205 per hour, and expended approximately 35 hours of time in relation to the motion (although three of her docketed hours appear to be duplicative of Mr. Sinclair’s claimed fee for appearing at the motion).

[78] The moving party’s total claim for partial indemnity costs with respect to the motion are $7,224 in fees, $939.12 for HST, and disbursements of $469.55.

[79] I find that the rates and time spent by the moving party’s counsel are reasonable (excepting the duplication noted above), as are the disbursements. The total partial indemnity costs, inclusive of HST and disbursements claimed by moving party’s counsel is $8,632.67. By comparison, Paliani’s counsel submitted a costs outline totalling approximately $3,640 inclusive of HST and disbursements associated with the motion, and Pauser’s counsel submitted a costs outline totalling $11,410.91 inclusive of HST and disbursements in relation to the motion.

[80] Fixing costs is not simply a mathematical function of the amount of hours expended by a party’s counsel and the rate charged by that counsel. While those are important considerations, the court must also be guided by concepts of fairness, proportionality, and the quantum that a party could reasonably expect to pay in the event they were unsuccessful.

[81] In this instance, I am satisfied that the sum of $7,500, inclusive of HST and disbursements, in favour of the moving party Laing, is a fair, reasonable and proportional amount and one which the plaintiffs ought to have anticipated that they would be required to pay, in the event they were unsuccessful on the motion.

[82] As a result, an additional term of the order dismissing the action against Laing will go that the plaintiffs, Richard Paliani and Aurel Pauser, shall pay, on a joint and several basis, the sum of $7,500 as costs of this motion, inclusive of HST and disbursements, to the defendant, G. Dewar Laing, within 30 days.

[83] Order to go in accordance with the foregoing.

“Original electronically signed and released by Verbeem J.”

Gregory J. Verbeem

Justice

Released: August 23, 2022

COURT FILE NO.: CV-07-CV008578-CM00

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Richard Paliani, Ron Cimino, Aurel Pauser, and Bradley Doyle

Plaintiffs

• and -

G. Dewar Laing, Stanley Dickson, 1433322 Ontario Limited, 1443120 Ontario Limited, and Windsor Hospitality Development Corporation

Defendants

REASONS ON MOTION to dismiss for delay

Verbeem J.

Released: August 23, 2022

[^1]: Marché D’Alimentation Denis Thériault Ltée v. Giant Tiger Stores Limited, 2007 ONCA 695, 87 O.R. (3d) 660 (“Giant Tiger”), at para. 25. [^2]: Langenecker v. Sauvé, 2011 ONCA 803, 208 O.A.C. 268 (“Langenecker”), at para. 3. [^3]: Giant Tiger, at para. 24. [^4]: Giant Tiger, at para. 24. [^5]: Langenecker, paras. 9-10. [^6]: Prescott v. Barbon, 2018 ONCA 504, 141 O.R. (3d) 616, at paras. 33-34. [^7]: 1196158 Ontario Inc. v. 6274013 Canada Ltd., 2012 ONCA 544, 112 O.R. (3d) 67, at paras. 31-42. [^8]: McDowell v. Cavan-Millbrook - North Monaghan (Municipality), 2016 ONCA 193 (“McDowell”), at para. 19. [^9]: McDowell, at para. 19.