Legal Blog

Trial Delay

On occasion a legal action languishes. The plaintiff loses interest or there is miscommunication between the plaintiff and its solicitor. Then, after a long time, the sleeping giant awakens and wants to push its action on for trial. The defendant claims that it is prejudiced and brings a motion to dismiss the action. Such was the case in Burdi v. Yorkstar Development, a 2002 decision of a Master of the Ontario Superior Court of Justice.

Time

The action related to the construction of a driveway. The plaintiff claimed $250,000 in damages. It must have been quite a driveway.

The plaintiff did the work in 1987 and commenced the action in 1992; the parties conducted examinations for discovery in 1993; the action then languished for 9 years. In 2002, the plaintiff shook off its lethargy and set the action down for trial and the defendant immediately moved to have the action dismissed.

Presumption

Had the plaintiff not commenced its action in 1992, the 6-year limitation period would have passed in 1993. The Master decided that a delay of 15 years (1987 to 2002) from the time the cause of action arose and 10 years from the time that the plaintiff commenced the action was inordinate. Accordingly, the Master could presume that the delay prejudiced the defendant unless the plaintiff was able to submit sufficient evidence to rebut that presumption. The plaintiff would have to demonstrate, for example, that the issues in the action were not heavily dependent on the recollection of witnesses or that all witnesses were still available and still remembered what happened.

In this case, the plaintiff provided an affidavit containing only a bald statement that the defendant was not prejudiced by the delay. This self-serving statement was insufficient. Accordingly, the Master dismissed the action.

The Master would have also held that there was actual, not just presumed prejudice. The defendant’s affidavit demonstrated that the project engineer could no longer remember important facts relating to the case and that the defendant could no longer locate the tenants who had used the driveway.

Moral

Commence the action and then get on with it.