The decision in Sokoloff v. Bateriwala, 2019 ONSC 5442, is another example of the courts cracking down on delay in litigation.
The lawsuit in question was commenced in April 2013. It was dismissed for delay by the registrar in April 2018. The plaintiffs sought to set aside the dismissal. This request was denied.
Master Jolley stated that there was no reasonable explanation for the delay. By the time the action was dismissed, it was “just barely out of the gate”.
The plaintiffs had yet to serve an Affidavit of Documents. Other than sending a few letters, the plaintiffs did nothing to advance the action. A timetable had not been proposed, and discoveries had not been arranged.
Master Jolley rejected the plaintiffs’ argument that the deadline was missed through inadvertence. The evidence did not support the plaintiffs’ bald statement in this regard.
Moreover, the plaintiffs did not move promptly to set aside the dismissal order. A notice of motion was served almost nine months after receiving the dismissal order. The motion was argued 16 months after the action was dismissed.
Master Jolley indicated that, although a two year delay in bringing a motion to set aside a dismissal has been accepted in other cases, those cases were in the context of an action where the lawsuit had been proceeding reasonably promptly.
Lastly, the plaintiffs did not rebut the presumption of prejudice. Some relevant Blackberry messages had gone missing.
In light of the history of the action, Master Jolley had no confidence that a litigation timetable, as requested by the plaintiffs, would be adhered to.
Therefore, Master Jolley determined that the action must remain dismissed.