The Ontario Court of Appeal has emphasized that a motion
judge's decision on whether to restore an action to the trial
list is entitled to deference. But in its September 2, 2015
decision in Carioca's Import & Export Inc. v.
Canadian Pacific Railway Limited, the Court held that even
though a motion judge had correctly stated the test as to whether
an action should be restored to the trial list, he made errors in
principle applying it. This allowed the Court of Appeal to re-weigh
the evidence and ultimately allow the action to proceed to trial.
The decision could prove to be a valuable framework for future
appeals of decisions deciding whether to restore an action to the
The Legal Framework and the Motion Judge's Decision
It was agreed by all concerned that, to restore an action to the
trial list, a plaintiff must show, on the balance of probabilities,
"that there was a reasonable explanation for the delay; and
that if the action were allowed to proceed, the defendant (the
respondent) would suffer no non-compensable prejudice" (para.
The motion judge held that the plaintiff failed to meet either
branch of this test, holding that the delay – several years
since first being put on the trial list, including being struck and
restored on one previous occasion, as well as a very lengthy delay
in answering undertakings – was mostly, if not entirely,
attributable to the plaintiff. The motion judge also found that the
defendant would be prejudiced by the restoration of the action to
the trial list, as a witness's memory would have faded, nearly
ten years after the events underlying the dispute.
The Standard of Review
For a unanimous Court of Appeal, Justice van Rensburg held,
"[a] decision on a rule 48.11 motion is discretionary and
entitled to deference by this court. It may therefore only be set
aside if made on an erroneous legal principle or infected by a
palpable and overriding error of fact" (para. 4).
Notwithstanding this standard, Justice van Rensburg allowed the
appeal. She summarized:
 Although the motion judge set out
the correct test, his analysis reveals errors in legal principle in
applying both parts of the test. He decided the delay issue based
on an allocation of blame for delay rather than whether there was a
reasonable explanation for it. He decided the prejudice issue by a
mechanical application of a presumption based on the passage of
time, rather than considering prejudice as a question of fact in
the particular circumstances of this case.
In Justice van Rensburg's view, the motion judge ignored the
factual circumstances of this case, which must always be analyzed
in deciding whether to restore an action to the trial list. His
failure to do so amounted to an error in principle. In particular,
Justice van Rensburg noted that the motion judge merely assumed a
witness's memory would render him less reliable in the absence
of any evidence to that effect. She further held that the motion
judge erred in principle in ignoring the defendant's expressing
concern about delay only at a very late hour, and the great deal of
evidence that indicated that the action was ready for trial
(including the completion of oral discoveries and transcripts being
Rather than return the matter to the Superior Court, the Court
of Appeal is to re-weigh the evidence upon allowing an appeal in
these circumstances. (This is not surprising, given that this will
always be occurring in the midst of an action at least somewhat
delayed.) In this case, Justice van Rensburg held that there was a
reasonable explanation of the delay – while, to some extent,
the plaintiff should have moved the action along more quickly, it
was always attempting to move it along, and was delayed at least in
part by the defendant (a well-resourced corporation) insisting upon
very specific answers to undertakings that the plaintiff (a small
business) could not answer on its own. In any event, the action was
now ready for trial. Moreover, Justice van Rensburg held that the
fact that witnesses' memories fade over time is insufficient to
establish prejudice in this respect. She also was skeptical that
the witness whose memory was said to have faded in this case would
prove crucial given that it took the defendant over seven years to
In the result, therefore, the appeal was allowed and the action
was restored to the trial list.
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