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Court of Appeal Upholds Dismissal for Delay

The Court of Appeal’s decision in Mugizi v. Ngo, 2022 ONCA 595, shows the risks of not moving actions forward.

The plaintiff was involved in a motor vehicle accident in January 2014. An action was commenced in March 2015. The action was struck from the trial list in December 2019 because the plaintiff had not served an expert report.

In February 2021, the defendant filed a motion to dismiss the action for delay, returnable in July 2021. The plaintiff brought a motion to restore the action to the trial list. Both motions were heard at the same time. The motion judge dismissed the plaintiff’s action.

On appeal, the Court of Appeal noted that a decision to restore an action to the trial list is a discretionary one. The burden is on the plaintiff to explain the delay and to satisfy the court that the defendant has not suffered non-compensable prejudice.

The motion judge had found that the plaintiff’s delay was inordinate. The plaintiff did not adduce evidence to explain the delay, beyond a bare reference to the COVID-19 pandemic. Further, the plaintiff did not demonstrate that the defendant had not suffered non-compensable prejudice as a result of the delay.

The Court of Appeal held that there was no basis to interfere in the motion judge’s decision. The motion judge did not exercise her discretion unreasonably, nor did she act on an incorrect principle or make a palpable and overriding error on a factual matter.

As a result, the plaintiff’s appeal was dismissed.