In its recent decision Carioca's Import & Export
Inc. v. Canadian Pacific Railway,1 the Ontario
Court of Appeal has sent a clear message that the passage of time
– albeit egregious – is not sufficient to dismiss an
action for delay. In that case, the Court restored an action
to the trial list, despite a five year delay, holding that the
overall conduct of all parties in the litigation must be examined
to determine if such a dismissal is warranted.
The Delayed Undertakings
The Plaintiff in Carioca's had initially prosecuted
its action with reasonable diligence. The Statement of Claim
was issued in early 2007. Documentary and oral discoveries
took place in 2008. The action was set down for trial in
mid-2009, but ultimately stalled at the undertakings
Defendant's counsel refused to execute the relevant
certification form because of certain outstanding undertakings
given by the Plaintiff at examination for discovery. Between
2010 and 2013, Defendant's counsel continued to press the
Plaintiff to answer outstanding undertakings. When partial
answers were provided, Defendant's counsel made further
requests for complete answers and clarifications.
Defendant's counsel insisted that it could not obtain an expert
report quantifying the Plaintiff's alleged damages until the
outstanding undertakings were satisfied.
The Action is Struck Off the Trial List
The action was struck off the trial list in late 2013. The
Plaintiff's motion to restore the action to the trial list was
dismissed in late 2014, with the result that the action was
administratively dismissed shortly thereafter. The Plaintiff
appealed the dismissal of its motion to restore the action to the
The Test to Restore an Action to the Trial List
Writing for a unanimous court, van Rensburg J.A. confirmed that
the test to restore an action to a trial list is whether the
Plaintiff can demonstrate, on a balance of probabilities, that (1)
there was a reasonable explanation for the delay; and (2) if the
action were allowed to proceed, the Defendant would not suffer
Van Rensburg J.A. held that a motion to restore an action to the
trial list is not a "blame game." Rather, the
motion judge must consider the overall conduct of the litigation in
the context of local court practices. This will involve an
assessment of the conduct of the Defendant as well as the
Plaintiff, as all parties must "play their part in moving
Application to the Facts
Although van Rensburg J.A. noted that the Plaintiff
"should have moved this case along to trial more
briskly", she held that when, all the circumstances were
considered, the action ought to be restored to the trial
list. In particular, she noted that the Plaintiff, a small
business with limited resources, struggled to fulfill its
Van Rensburg J.A. rejected the Defendant's assertions of
prejudice, noting that the mere passage of time alone was
insufficient to prove prejudice to the Defendant's case.
The Appellate Court in Carioca essentially excused the
Plaintiff from an exorbitant delay in answering its
undertakings. While van Rensburg J.A. noted that the
Plaintiff was a small business with limited resources, the
undertakings themselves related to the production of rather
unremarkable documents, i.e., tax returns and inventory
Carioca's is an instructive decision for Defendants
highlighting how best they can position themselves for success on
dismissal for delay motions:
1. Be persistent, but not overzealous, in insisting that
the Plaintiff satisfy its outstanding undertakings.
The Defendant in Carioca's was diligent in requesting
that the Plaintiff satisfy its outstanding undertakings.
However, it may have crossed the line in making requests for
clarifications, which may have been perceived as an attempt to
"bury" the Plaintiff in an avalanche of undertakings.
2. Make your position on delay clear. The
Defendant in Carioca's was penalized because its
objection to the restoration of the action to the trial list was
late. Defendants might be better positioned on motions of
this type if they explicitly state their objection to the
Plaintiff's dilatory prosecution of the action well before such
3. Actively document any prejudice to your case
arising from the delay in the progress of the
action. The Defendant in Carioca's was
unable to present much in the way of cogent evidence proving the
prejudice to its case arising from the delay in the progress of the
action. Defendants should actively document any prejudice to
their case when an action is delayed for use at any future motion
of this type.
1 2015 ONCA 592 (CanLII).
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