By Ankita Abraham, Student-at-Law
The court’s decision in Levant v. Gilbert Studios Limited, 2020 ONSC 1528, provides a summary of the test for dismissing an action for delay. The defendant brought a motion to dismiss the plaintiff’s action under rule 24.01(1)(c) of the Rules of Civil Procedure , on the basis that the plaintiff failed to set the action down for trial within six months of the close of pleadings.
The plaintiff had commenced a claim against his grandparents and their photography studio on the basis that the defendant grandfather had promised to give the studio to the plaintiff.
The statement of claim was issued in March 2016, and the statement of defence was delivered in April 2016. Examinations for discovery of the defendant grandfather and the plaintiff were held shortly thereafter. In January 2018, the defendant grandmother passed away, and in January 2019, the defendant grandfather passed away.
Master Graham, citing a Court of Appeal decision, summarized the test to dismiss an action for delay under rule 24.01, as follows:
There are two situations in which a court should dismiss a claim for delay: (i) the delay is caused by the intentional conduct of the plaintiff or its counsel that demonstrates a disdain or disrespect for the court process; or (ii) the delay must be inordinate, inexcusable and such that it gives rise to a substantial risk that a fair trial of the issues in litigation will not be possible because of the delay.
The Master concluded that the second test is relevant in this matter. He found that the first two elements of the second test were satisfied as there was no activity whatsoever in the action for 2.5 years between the plaintiff’s examination for discovery and the plaintiff’s counsel’s letter to the defendants’ counsel following the death of the defendant grandfather. Moreover, the plaintiff acknowledged there was no reasonable explanation for the 2.5 years of delay.
The Master also found there was a substantial risk to the defendants that a fair trial will not be possible because of the delay, due to the death of the defendant grandfather. Specifically, the defendants can no longer respond at trial to evidence from the plaintiff or any witnesses regarding any promises the defendant grandfather made to the plaintiff.
As a result, Master Graham found that the defendants satisfied the applicable test, and the action was thereby dismissed due to delay.