Executive Summary: Key Legal and Evidentiary Issues

• Plaintiff failed to advance the action for prolonged periods, including gaps from 2016–2018 and 2020–2024.

• No acceptable or cogent explanation was provided for the cumulative 4.5-year delay in restoring the action to the trial list.

• Assertions of medical and COVID-related challenges were unsupported or insufficient to excuse delay.

• Defendant would suffer non-compensable prejudice due to faded memories and unavailability of evidence from events dating back to 2013.

• Court applied the Nissar two-part conjunctive test and found both delay and prejudice to be present.

• Action dismissed for delay under Rules 24.01(2) and 48.14(1); plaintiff ordered to pay $15,105.84 in costs.

Facts of the Case

Asim Alvi filed a wrongful dismissal action against his former employer, YM Inc., in April 2014, claiming he was terminated in 2013 without just cause. He alleged that YM Inc. had made gross misrepresentations and breached its duty of good faith. The allegations targeted several senior personnel, including the CEO and multiple VPs.

Initial litigation steps—including discoveries and mediation—occurred between 2014 and 2016. Mediation was unsuccessful, and then the case stalled. A period of inactivity followed from November 2016 to June 2018, when Alvi filed a trial record unilaterally. However, the Trial Certification Form required to proceed to trial was never properly completed. The action was struck from the trial list on June 28, 2019.

Another extended period of inactivity lasted from May 2020 to February 2023. The plaintiff’s counsel only reinitiated contact in 2023, expressing a renewed desire to move the case forward. However, Alvi did not bring a motion to restore the case until June 10, 2024, five years after it had been struck from the list.

In response, YM Inc. filed a motion to dismiss the action for delay under Rules 24.01(2) and 48.14(1) of the Rules of Civil Procedure.

Court's Analysis

1. Motion to Restore the Action to Trial List

The court applied the Nissar test, which requires:

1. A reasonable explanation for the delay.

2. Proof that the defendant would suffer no non-compensable prejudice if the action proceeds.

The court found that:

• The delay between 2016 and 2018 had no reasonable justification. Defendant’s passivity did not excuse the plaintiff’s inactivity.

• From 2020 to 2024, Alvi relied on personal and family health issues and the COVID-19 pandemic. However, the court found no contemporaneous or compelling evidence that these issues prevented him from litigating, except for a brief hospital stay in 2021.

• The plaintiff’s medical assertions were unsupported by expert rebuttal. In contrast, the defendant's expert (Dr. David Eisen) concluded there was no medical reason that prevented Alvi from prosecuting the case.

• The 4.5-year delay in bringing the Motion to Restore was especially problematic. Plaintiff’s lawyer was aware the matter would be struck if not set down by June 2019, and failed to act for years.

Ultimately, the court held that Alvi did not meet either prong of the Nissar test.

2. Motion to Dismiss for Delay

Even if the Motion to Restore failed, the court also independently analyzed whether the case should be dismissed under Rule 24.01(2) and Rule 48.14(1). It considered both the Faris test (similar to Nissar) and the Langenecker test, which requires:

• Inordinate delay

• Inexcusable delay

• Substantial risk that a fair trial is no longer possible

The court concluded:

• The delay from 2014 to 2024 was inordinate (even excluding COVID-related suspension periods).

• The explanations for delay were inexcusable.

• Given the time lapse, the action—centered on events from 2013—posed a substantial risk of unfair trial due to faded memories, unavailability of witnesses, and reliance on oral representations.

Outcome

The Court ruled as follows:

• Motion to Restore: Dismissed

• Motion to Dismiss for Delay: Granted

• Action: Dismissed

• Costs Awarded: $15,105.84 to the defendant for the motions, payable within 30 days

On the matter of overall action costs, the parties were invited to submit further written materials if no agreement was reached.

Conclusion

This case is a stark reminder of the importance of prosecuting civil litigation diligently. Even in situations involving real personal hardship, a plaintiff must provide substantiated, timely, and continuous action to prevent dismissal. The court emphasized that while some delay is understandable, years of dormancy and last-minute motions filed in reaction to dismissal proceedings are insufficient to preserve an action.