Timely Justice Key Factor in Dismissal for Delay

In American Environmental Container Corp. v. Kennedy, 2020 ONSC 1662, the plaintiffs’ action was dismissed for delay at a status hearing.

The action was commenced in July 2014. There was activity in the case for the first two years of the action. However, there was thereafter a 30 month period in which no steps were taken to advance the action.

The plaintiffs attempted to set the action down for trial in June 2019, but the trial record could not be filed because a mediation had not taken place, which is required in Toronto before an action can be set down for trial.

The plaintiffs’ lawyer then requested a mediation. The defendants refused to schedule a mediation or fix a timetable. The plaintiffs then served a notice of motion in July 2019 seeking an extension of time to set the action down for trial. The motion was heard by Master Muir as a status hearing.

Master Muir noted that, at a status hearing, the onus is on the plaintiff to show cause as to why the action should not be dismissed for delay. The plaintiff must provide a satisfactory explanation for any delay. The plaintiff must also demonstrate the defendant will not be prejudiced in the sense that a fair trial would not be possible.

The plaintiffs did not provide an adequate explanation for the 30 month period of inactivity. They simply gave a bald assertion that they always intended to pursue the action.

Master Muir indicated that, as a general rule, civil disputes should be determined on their merits, but consideration must also be given to the equally important objective of timely justice.

Master Muir stated that litigants are entitled to have disputes resolved within a reasonable period of time so that they can get on with their lives. There comes a point in time where parties who fail to comply with rules designed to promote timely and efficient justice lose the right to have their disputes decided on the merits.

Otherwise, the Rules and time limits would have no meaning, and the goal of ensuring timely and efficient justice would be seriously eroded.

Due to the lengthy unexplained delay in advancing the litigation, the plaintiffs’ action was dismissed for delay, even though Master Muir was satisfied that the defendants would not suffer any prejudice.