By: Michael C. Brown
In a previous RP Blog post, we discussed the Ontario Court of Appeal decision in Mugizi v. Ngo, 2022 ONCA 595, but we wish to expand on that post given the importance of the message it carries from the Court.
Litigating in a post-COVID-19 era has proven to be a difficult transition period for many. It is no secret the justice system was overwhelmed with backlogs and delays even before the pandemic began. However, this was exacerbated over two long years of lockdowns, illnesses, and other pandemic-related complications.
Throughout 2020 and 2021, COVID-19 became the apparent primary cause for delays in the courts and files between counsel. Until recently, it was difficult to argue that such a cause was invalid or that it should be questioned, given the status of ongoing lockdowns in Ontario and the harm the pandemic caused people both personally and professionally. In other words, we accepted that the pandemic was a valid reason for the delay, no matter the circumstance.
Fast forward to August 2022, the Court of Appeal has taken a position regarding the use of COVID-19 as an excuse for delay, particularly in actions dismissed for delay during the pandemic.
In Mugizi,the Court denied the appellant’s request to have his matter restored to the trial list after being dismissed for delay in July 2021. The action stemmed from a motor vehicle accident in January 2014 and subsequent action that was ultimately struck from the trial list in December 2019 for failure to serve an expert report.
In February 2021, the respondent moved to dismiss the action for delay. The appellant delivered an expert report shortly before the motion was to be heard and brought a motion to restore the action to the trial list. Despite the appellant’s efforts, the motion judge dismissed the motion and the action for delay.
On appeal, the appellant argued that the COVID-19 pandemic caused the only delay, that he missed no deadlines and brought his motion promptly following the dismissal order. The appellant also argued that the motion judge erred in not weighing the actual and significant prejudice to him caused by dismissing his action against the possible prejudice to the respondent.
The Court of Appeal disagreed.
In its decision, the Court reaffirmed that the deciding factor of restoring an action to the trial list is discretionary. Ultimately, it is the burden of the appellant to explain his delay and satisfy the court that it would not be unfairly prejudicial to the respondent to have the action restored. In this case, the motion judge found that the delay was inordinate, whether it began when a prior motion to dismiss was resolved in 2017 or in 2019 when the matter was first struck from the trial list.
Of note, the Court cited the fact that the appellant produced no evidence explaining his delay beyond a “bare reference” to the COVID-19 pandemic, nor did he produce evidence showing that the respondent had not suffered non-compensable prejudice because of the delay. As such, the Court determined that the motion judge did not err in her decision to dismiss the appellant’s action.
The Court also determined that there was no basis to interfere with the motion judge’s decision to dismiss the appellant’s action because her Honour did not exercise her discretion unreasonably or act on an incorrect principle or make a palpable and overriding error on a factual matter.
Ultimately, it was within the motion judge’s authority to find that the delay by the appellant was inordinate, and she did so when he gave no explanation for lengthy periods of inactivity, including when the appellant did not seek to restore the action to the trial list for more than one year after being struck, at which point it had been seven years since the accident occurred.
As such, the appeal was dismissed with costs to the respondents.
The lesson of this decision is although COVID-19 was a relevant factor in causing delays throughout the pandemic and, in the proper context, could still form part of an argument, it should not be the scapegoat. Moreover, as society, including the courts, continues to transition to functioning at pre-pandemic levels, arguments blaming the pandemic for delay will be scrutinized and may be given less weight. As such, litigants should consider its relevance carefully before use.
Mugizi v. Ngo, 2022 ONCA 595 at para 2.
 Ibid at para 3.
 Ibid at para 4.
 Ibid at para 7.
 Mugizi at para 8.