Ontario's top court affirms refusal to restore action to trial list due to delay

An appellant’s unexplained, inordinate and inexcusable delay has jeopardized the likelihood of a fair trial, the Court of Appeal for Ontario has found in upholding a motion judge’s conclusion.

Ever Fresh Direct Foods Inc. v. Jamia Islamia Canada Ltd., 2022 ONCA 185 involved the underlying issue of the validity of an original agreement. The appellant granted an alleged loan facility to the respondent in 2008. The appellant brought an application raising this issue in October 2012 and acquired a certificate of pending litigation in November 2012, which was registered against the respondent’s property.

The respondent successfully sought the conversion of the application into an action in March 2013. The parties exchanged pleadings in August and September 2013.

The appellant only attempted to schedule discoveries in November 2017. The respondent refused to participate in the discoveries scheduled for March 2018 because of an unpaid costs order for over $56,000 in a related proceeding between the parties. The appellant also failed to serve an affidavit of documents.

The appellant set down the action for trial in April 2018. However, the action was struck from the trial list in August 2018 for not being trial-ready, given that the appellant still wanted to conduct discoveries. The appellant advised the respondent of its intention to file a motion to restore the action to the trial list in May 2019, proposed a discovery plan in July 2019 and arranged to proceed with the motion in September 2019.

The appellant’s motion and the respondent’s cross-motion to dismiss for delay, which was initially scheduled for May 2020, were only heard in November 2020 due to the impacts of the COVID-19 pandemic. The motion judge declined to restore the action to the trial list, dismissed it for delay and discharged the certificate of pending litigation.

The Court of Appeal for Ontario dismissed the appeal. The appellant did not explain why it failed to take steps to move the action forward between the delivery of its statement of claim in August 2013 and its attempt to schedule discoveries in November 2017 or why there was another delay in the period from August 2018 to September 2019, the appellate court said.

The appellate court added that the respondent was reasonable to refuse to participate in discoveries after November 2017, considering the delay and the parties’ litigation history.

Cross-examinations on affidavits that occurred in connection with converting the application to an action and an unserved affidavit of documents that lacked a lawyer’s certificate were not adequate substitutes for a proper discovery process, the appellate court concluded.