Legal Blog

Delay Dismissal

Samuels v. Mai 2020 Ont CA

2011 action for $50,000 under the Simplified Procedure Rules. Nothing happened for four years after pleadings closed; both parties obtain new counsel by 2017. A Master, at a status hearing, extended the time for the action to be set down for trial to June 1, 2018. The plaintiff did nothing. In January 2018 the defendants moved to dismiss the action for delay. Between January and August 2018, the parties delivered affidavits of documents. Ultimately, the motion was adjourned to July 2019 and both parties delivered materials. The motion judge dismissed the plaintiff’s action for delay, but the counterclaim remained. The Court of Appeal set aside the decision because the motion judge failed to consider “a critical contextual factor: the dismissal of the appellant’s claim left the respondents’ counterclaim alive.” The court held that it was not in the interests of justice to dismiss a plaintiff’s claim while permitting the defendants to litigate the same issues in their counterclaim.

Written by Jonathan Speigel, the founding partner of Speigel Nichols Fox LLP, leads the litigation and construction practices.