On June 4, 2013, the Ontario Court of Appeal released two
decisions about dismissals for delay. In Faris v. Eftimovski, the Court upheld
a status hearing dismissal. In Nissar v. The Toronto Transit
Commission, the Court upheld a refusal to restore the
action to the trial list. I think the decisions confirm the Court
of Appeal’s continuing desire to see actions prosecuted more
vigorously and its support for lower courts that hold plaintiffs
accountable for delay.
Faris arose from a real estate deal gone bad. In 2007,
the former property owner sued his real estate agent and lawyers.
By the date of the status hearing over four years later, pleadings
were not yet finalized, no document productions had been exchanged,
and no examinations for discovery had taken place. Meanwhile, the
real estate agent and lawyer had both died. The status hearing
judge held that there were many periods of unexplained delay and
that the deaths of the agent and lawyer prejudiced the defendants.
She dismissed the plaintiff’s action.
In Nissar, the plaintiff commenced her action in 2001
alleging injury suffered on a TTC bus. Discoveries occurred in
2002, but the plaintiff’s lawyer never requested a transcript
of the bus driver’s examination with the result that no
record of his examination existed. The action was set down for
trial in 2004 but struck off the trial list in 2005. Seven years
later, the plaintiff moved to restore the matter to the trial list.
The motions judge dismissed the motion because the plaintiff had
not explained her seven-year delay in moving to restore the matter
to the trial list and the delay had prejudiced the defendants since
the bus driver could hardly be expected to remember 13-year-old
On appeal, Faris and Nissar both argued that the lower court had
applied the wrong test by placing the onus on them to explain the
delay and lack of prejudice rather than on the defendants. They
argued that the Court of Appeal should apply the test used on
motions to dismiss for delay under Rule 24.01.
Justice Tulloch rejected the appellants’ approach. He held
that Rule 24.01 (motions for dismissal by a defendant) and Rule 48
(status hearings and administrative dismissals) “each offer
distinct means that may lead to the same end; the dismissal of the
plaintiff’s action for delay.” But Rule 48 motions,
such as status hearings and motions to restore a matter to the
trial list, require plaintiffs to convince the court why
actions should be allowed to proceed. In contrast, Rule
24.01 motions require defendants to convince the court why
actions should be dismissed. That conclusion results
the plain wording of Rule 48 which puts the onus on plaintiffs
the fact that Rule 48 motions occur much later in a proceeding
than Rule 24.01 motions, indicating that plaintiffs must bear the
consequences of their failure to advance the action.
Accordingly, Justice Tulloch held that that test for status
hearings and motions to restore an action to the trial list –
both Rule 48 motions – are the same. The plaintiff must show
there is a reasonable explanation for the litigation delay
no non-compensable prejudice will result to the defendant if
the action continues.
In the result, Justice Tulloch agreed with the lower courts that
Faris and Nissar had not met that test. He dismissed the appeals
effectively ending their claims.
Some take-aways from these decisions:
There is a new test on motions to restore a matter to the trial
list. Do not rely on the old test developed by Master Graham in Ruggiero v. FN Corporation.
These decisions are the latest in a series of decisions in
which the Court of Appeal has taken a hard line against plaintiffs
who have failed to diligently prosecute actions. Continuing
appellate support of lower courts that dismiss actions for delay
may increase the frequency with which Masters and Judges dismiss
borderline cases. When acting for plaintiffs, make sure you keep
actions moving forward.
The onus on Rule 24.01 motions makes them hard to win except in
cases of egregious delay. When acting for defendants, forget Rule
24.01. Focus on getting contested status hearings or having actions
struck off of the trial list. That will put the plaintiff under the
gun to explain the delay and why there is no prejudice.
The deferential standard of review of Rule 48 dismissals
increases the importance of the lower court hearing because an
appeal is so hard to win. The Court of Appeal will only overturn an
administrative dismissal if the lower court made a palpable and
overriding error of fact or based its decision on an erroneous
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Under the Income Tax Act, the Employment Insurance Act, and the Excise Tax Act, a director of a corporation is jointly and severally liable for a corporation's failure to deduct and remit source deductions or GST.
Under the Income Tax Act, the Employment Insurance Act, the Canada Pension Plan Act and the Excise Tax Act, a director of a corporation is jointly and severally liable for a corporation's failure to deduct and remit source deductions.
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