The court rejected arguments that difficulties in securing legal counsel justified the delays
The Ontario Superior Court of Justice dismissed a 2011 parking lot accident lawsuit due to over a decade of excessive delays, repeated non-compliance with court orders, and the plaintiff’s failure to justify the delays or demonstrate that a fair trial remained possible.
The motion to dismiss, brought by the defendant in November 2022, alleged the plaintiff had failed to comply with multiple court orders and allowed significant delays to stall the litigation. The plaintiff had not fulfilled obligations imposed by a 2017 timetable order to respond to discovery undertakings, a 2020 pretrial order to produce financial documentation supporting an income loss claim, and a 2021 removal order requiring him to appoint counsel or file notice of intent to represent himself. The plaintiff further delayed the case by failing to restore it to the trial list after the court struck it in 2021.
The court determined the delay, spanning more than ten years from the start of the case to the dismissal motion, was excessive. The court noted that the litigation stalled for 17 months after the plaintiff’s first lawyers withdrew in 2015 and for 43 months after his second lawyers withdrew in 2021 before he secured new legal representation in 2024. The court noted that even when the plaintiff had legal counsel, there was minimal progress in the case, indicating a lack of effort to comply with procedural obligations.
The Superior Court rejected arguments that the plaintiff’s difficulties securing legal representation justified the delays. While the plaintiff’s new counsel argued that the plaintiff struggled to navigate the legal process, the court found no supporting evidence, such as affidavits or records detailing efforts to engage lawyers or advance the case. The judge emphasized that the plaintiff’s failure to explain the delay adequately was a critical factor in the decision to dismiss the action.
The court also examined whether the delays had prejudiced the defendant. While recent case law from the Ontario Court of Appeal has moved away from a presumption of prejudice due to delay, the court underscored that the burden remained on the plaintiff to demonstrate that a fair trial was still possible. The plaintiff provided no evidence addressing the preservation of witnesses, the availability of documents, or the readiness of the case for trial, leaving the potential prejudice unresolved.
The court concluded that the delays and procedural non-compliance made the case impossible to proceed and dismissed the action under rules 24.01 and 60.12 of the Ontario Rules of Civil Procedure.
