Skip to main content

The Difference between Some Prejudice and Substantial Prejudice

By Jordan Petruska

In Tsivaras v. The Cadillac Fairview Corporation, 2023 ONSC 3973, the defendant, Cadillac Fairview Corporation (“Cadillac”), brought a motion to dismiss the action for delay under subrule 24.01(1)(c) of the Rules of Civil Procedure, RRO 1990, Reg 194(“the Rules”).

The court did not dismiss the action for delay despite there being a fairly lengthy delay in the proceeding. The court was not convinced that the delay was sufficiently inordinate or gave rise to a substantial risk that a fair trial would not be possible. The court allowed the action to proceed and ordered a fixed timetable and awarded costs in favour of the defendants.

Summary of Facts

This action was commenced in December 2018 and the pleadings were not closed until November 2019. The action was not set down for trial, although it had proceeded to the examination for discovery stage. The plaintiff was examined in October 2020, and the defendants were not yet examined.

The action was stalled since December 2020, when the plaintiff’s lawyer sent an email requesting that the upcoming defendants’ examinations be rescheduled, as they were in the process of transferring the file to another lawyer in their law firm.

The Court found that there was a lengthy delay from December 2, 2020 towards the motion being brought, during which time, Cadillac provided numerous follow up emails to the plaintiff’s lawyers on the status of the action, whether a removal motion would be brought or a notice of change of lawyers served, and whether new counsel had been appointed. Most of these emails were met with silence.

It was not until April 2022 that the lawyer with carriage for the plaintiff provided an email response stating that the plaintiff would be represented by a new lawyer shortly, after which nothing further occurred.

Court’s Analysis

Under subrule 24.01(1)(c) of the Rules permits a defendant who is not in default, to move to have an action dismissed for delay where the plaintiff has failed to set the action down for trial within six months after the close of pleadings.

An order dismissing an action for delay under subrule 24.01(1) is warranted where:

  1. the default is intentional or contumelious; or
  2. the delay is inordinate, inexcusable, and prejudicial to the defendant, in that it gives rise to a substantial risk that a fair trial of the issues will not be possible[1].

Cadillac pursued a dismissal under the second branch. Under the second branch, the delay must be inordinate, inexcusable, and prejudicial to the defendant by giving rise to a substantial risk that a fair trial of the issues will not be possible.

Inordinance of delay is measured by reference to the length of time from the commencement of the proceeding to the motion to dismiss[2]. A delay is inexcusable where there is no “reasonable and cogent” explanation for it[3].

In the case at bar, there was a lengthy delay from December 2, 2020 to this motion, during which Cadillac provided follow up emails to plaintiff’s counsel on the status of the action.

The Court then went on to consider subrule 48.14(1), which contemplates an action being set down for trial within five years of its commencement. With the consideration of the regulatory suspension of the limitation period during Covid-19, the action had to be set down for trial by June 17, 2024[4].

The Court could not reconcile the proposed compliance with the presumptive five-year period to set an action down for trial with Cadillac’s position that there was “inordinate” delay. The Court was not convinced that the delay resulted in a substantial risk of an unfair trial.

As confirmed by the Ontario Court of Appeal, the prejudice factor is directed at the prejudice caused by the delay to the defence’s ability to put its case forward for adjudication on the merits[5]. Cadillac had the burden of demonstrating prejudice giving rise to a substantial risk that a fair trial of the issues would not be possible. During the motion, Cadillac failed to tender any positive evidence of substantial prejudice. In their affidavit, Cadillac only made submissions to the procedural delay, and not its impacts of the delay.

Cadillac also failed to discuss how their potential witnesses may or will be impacted by the delay. Accordingly, Cadillac failed to demonstrate that there were any witnesses with direct knowledge of the plaintiff’s accident whose testimony may be impacted by the plaintiff’s delay.

Further, the Court found there was no evidence that the defendants have been unable to preserve relevant evidence on what was observed and the then-current maintenance systems in place. There was no evidence on what document collection was done and whether relevant witness statements were obtained. Justice Robinson emphasized that “All parties to civil litigation have obligations to preserve relevant evidence”.

The Court agreed that Cadillac’s onus may have been met through the presumption of prejudice as there was an inherent delay. However, the test is not that there is “some prejudice”. The test is that there is prejudice giving rise to “a substantial risk that a fair trial of the issues will not be possible.”

The presumption of prejudice in this case was not sufficiently strong to support a substantial impact on the defendants’ ability to put forward their cases.

The motion for a dismissal of the action was dismissed.


The takeaway from this decision is that there is a significant difference between a presumption of prejudice and substantial prejudice. When bringing a motion to dismiss due to delay, the Court will likely consider rule 48.14(1) and whether the five-year period to set an action down for trial has expired.

When a party is facing a delay from the other side and the presumptive five-year period has passed, a party may still need to provide sufficient evidence to demonstrate that the delay has impacted their ability to preserve relevant evidence, impacted the effectiveness of their witnesses, or ultimately inhibited their ability to build their case and move it forward.

[1] Langenecker v. Sauvé, 2011 ONCA 803 at para. 5

[2] Ticchiarelli v. Ticchiarelli, 2017 ONCA 1 at para. 15.

[3] Ibid at para. 16.

[4] Near the outset of the pandemic-related lockdowns, the Legislature enacted O Reg 73/20 under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, SO 2020, c 17, which suspended limitation periods and statutory deadlines in Ontario from March 16, 2020, until September 14, 2020. As a result of that suspension, deadlines for existing civil actions were effectively extended by approximately six months.

[5] Langenecker, supra at para. 11.