The Various Tests for Dismissal for Delay
In Alvi v. YM Inc., 2025 ONSC 2041, the Ontario Superior Court of Justice refused to restore an action to the trial list, and simultaneously, dismissed an action due to delay. The case reinforces the importance of taking positive actions to move files forward without delay throughout the course of the litigation, and illustrates the willingness of the Superior Court to dismiss actions that have extended well beyond the expected timeframe for completion.
History of the Action and Underlying Delay
The action in Alvi v. YM Inc. was a claim for wrongful dismissal. The statement of claim was issued in April 3, 2014. The action moved at a slow but steady pace from that time on. Examinations for discovery occurred in May of 2016, and a mediation was held on November 28, 2016. No settlement was reached.
The file then entered into a period of inactivity. No steps were taken for nearly one and a half years. Plaintiff’s counsel filed a trial record on June 22, 2018, more than five years after the commencement of the action.
The Trial Scheduling Office provided the Trial Certification Form. The form is to be completed jointly by counsel and specifically noted a date at which, if not completed, the matter would be struck from the trial list, being June 28, 2019. No steps were taken to advance the matter until October 29, 2018, when a series of emails were exchanged between the parties regarding the filling out of the Trial Certification Form. The Trial Coordinator requested that the plaintiff complete the certification form in an email dated May 23, 2019, but no completed form was ever received. The Trial Coordinator struck the matter from the list on June 28, 2019.
On December 11, 2019, a motion by the defendants for answers to undertakings and a re-attendance at discoveries was heard. The continued examination occurred on February 11, 2020, and undertakings were answered on May 13, 2020.
It was now over 6 years since the matter was initially commenced in April of 2014. At this time, a second period of inactivity commenced. There was no advancement of the claim between May 2020 and February 2023. In February of 2023, the defendants advised the counsel of their intentions to proceed with a motion to dismiss the matter for delay. On July 6, 2023, a Notice of Motion to Dismiss the Action for Delay was served.
On June 10, 2024, one week before the motion to dismiss was to be heard, the plaintiff filed responding materials and a motion seeking to restore the matter to the trial list. The motions were adjourned to be heard together on December 12, 2024, over 10 years after the matter was commenced.
Brief Notes on the Law
Rule 48.11 of the Rules of Civil Procedure requires leave for a struck action to be placed back on any trial list.
Rule 24.01(e) of the Rules of Civil Procedure provides that a defendant who is not in default under the Rules or an order of the court may move to have an action dismissed for delay where the plaintiff has failed to move for leave to restore to a trial list an action that has been struck off the trial list, within thirty days after the action was struck off.
The final relevant rule in this matter is Rule 48.14(1), paragraph 2, which states:
Unless the court orders otherwise, the registrar shall dismiss an action for delay in either of the following circumstances, subject to subrules (4) to (8):
…
2. The action was struck off a trial list and has not been restored to a trial list or otherwise terminated by any means by the second anniversary of being struck off
These timelines are not necessarily strictly enforced, and the court will still apply the appropriate test for dismissal, depending on which Rule the dismissal is sought under, to ensure that the dismissal is in the interests of justice. In motions to restore an action to the trial list, the test used to determine if a motion was brought in a timely manner, the Nissar test is used. The Nissar test requires that a plaintiff provide an acceptable explanation for the delay in the action, and subsequently demonstrate that the defendant will suffer no non-compensable prejudice if the action is allowed to proceed.
In motions to dismiss pursuant to Rule 24.01, the Langenecker test is used. This test requires that the delay be inordinate, inexcusable and such that it gives rise to a substantial risk that a fair trail of the issues in the litigation will not be possible because of the delay. However, in motions under Rule 48.14, after there have been procedural timelines missed and cases have had extensive periods of time to be argued, the Faris test may be applied, which is identical to the Nissar test.
In this matter, the plaintiff had not moved to restore the matter to the list in the 5 years between June 2019 and June 2024.
Motion to Restore
Associate Justice R. Frank reviewed the case law and performed the analysis on the matter. He noted immediately that the matter was struck from the trial list more than two years before the motion to restore the matter to the list was brought. As a result, he decided to forego any analysis regarding the matter’s readiness for trial, immediately moving into an analysis pursuant to the Nissar test.
Associate Justice Frank focused his analysis on the two defined periods of inactivity separately, noting that there is no reason for the delay that took place between November 2016 and June 2018, which took place prior to the action being set down for trial.
Regarding the delay from May 2020 to June 2024, the plaintiff attempted to use health issues and the COVID-19 pandemic to justify the delay. The argument regarding the pandemic was not accepted. Associate Justice Frank pointed out that there was a six month extension to procedural timelines provided to account for delays and that further delay, this one lasting 3 years, remained unexplained.
Regarding the plaintiff’s argument that health issues prevented the pursuit of the claim, Associate Justice Frank acknowledged that the stress and difficulties with health in the plaintiff’s family could have caused some degree of difficulty and delay in their advancement of the litigation, it was ultimately not sufficient to explain the length of the delay.
Associate Justice Frank was equally as skeptical in his analysis of the plaintiff’s delay in submitting a motion to restore the matter to the trial list. Associate Justice Frank determined that “the plaintiff lost sight of the need to restore the action to the trial list and failed to bring the motion to restore promptly after the action had been struck.” He determined that there was no reasonable explanation for the delay in bringing the motion to restore.
Although not necessary, Associate Justice Frank also determined that the long passage of time caused by the delays did in fact cause prejudice to the defendant, stating that the presumed prejudice is inherent in the length of the delay, and not rebutted by the evidence provided.
The motion to restore the matter to the trial list was denied.
Motion to Dismiss
Associate Justice Frank noted that the test applied by the courts on motions to dismiss under Rule 24.01 and Rule 48.14 are actually two different rules and reasons and, as noted above, have two different tests.
Associate Justice Frank focused on the Langenecker test applied under the motion to dismiss pursuant to Rule 24.01(1)(e). Associate Justice Frank determined that the delay was inordinate and inexcusable. There was no reasonable or cogent explanation for the delay provided. Finally the delay was found to be so prejudicial that there was a substantial risk that a fair trial was not possible due to the inherent prejudice caused by a 9 year delay.
Finally, he briefly addressed the Faris test and noted that he would come to the same conclusion for the reasons outlined when he applied the Nissar test to the plaintiff’s motion to restore the action to the trial list.
Conclusion and Takeaways
The result of the motions was the dismissal of the action for delay. Beyond the obvious reminder to all counsel to check up on files that they may have left on the back burner while juggling a busy practice, this decision contains some very interesting commentary on the tests applied, and the differences in the types of motion to dismiss for delay.
It is important to note that courts may be willing to apply the less lenient Faris test when considering motions to dismiss under Rule 48.14. The reason for this being that these motions can only be brought at later stages of the proceeding, when procedural deadlines have been missed and the matter has been struck from the trial list, whereas motions to dismiss under Rule 24.01 can, in theory, be brought very shortly after an action is commenced and before a plaintiff has had a reasonable opportunity to advance their claim.
Counsel seeking to bring a motion to dismiss for delay should remain wary of the generally high bar such motions have, and they should be aware of any delay caused by their own conduct, as well as the nature of the prejudice caused by the delay. Prejudice from the delay is especially pertinent in matters that may not have as extreme a delay as the one seen in this action.