Court of Appeal Applies Contextual Approach to Restore a 2007 Action to the Trial List
October 29, 2015
In Cariocas’ Import and Export Inc. v. Canadian Pacific Railway Limited, the Court of Appeal unanimously allowed an appeal restoring a 2007 action to the trial list pursuant to Rule 48.11 of the Rules of Civil Procedure. The decision is significant because it provides a more expansive and liberal interpretation of the test to restore actions to the trial list than the Court of Appeal’s prior decision in Nissar v. Toronto Transit Commission, 2013 ONCA 361 (CanLII).
This case arose from a fire which took place in August 2006 on railway lands owned or occupied by the Respondent, Canadian Pacific Railway (the “Respondent”). The fire spread to the Appellant’s business, causing alleged damages. The action was issued in March 2007, alleging negligence and asserting a claim of $125,000.
The action initially moved in a timely manner with affidavits of documents and examinations for discovery being completed by September 2008. The Appellant set the action down for trial on June 11, 2009, although some undertakings remained outstanding at that time. The Respondent refused to sign the certification form to set pre-trial and trial dates because there were outstanding undertakings. As a result, the action was struck from the trial list, but was then restored to the trial list in January 2012 on an unopposed motion by the Appellant. However, the action was struck from the trial list a second time in October 2013 at “to be spoken to” court because expert reports on damages remained outstanding.
In May 2014, the Appellant again moved to restore the action to the trial list. This motion was dismissed, and the action was administratively dismissed on September 9, 2014. The appellant appealed the Court’s refusal to restore the action to the trial list.
As identified by the Court of Appeal, the applicable test to restore an action to the trial list requires the moving party to establish that:
- there has been a reasonable explanation for the litigation delay; and
- the Respondent would suffer no non-compensable prejudice.
The Court of Appeal allowed the appeal of the motion judge’s refusal to restore the action to the trial list holding that the motion judge’s decision was infected by palpable and overriding errors of fact and contained erroneous application of legal principles.
It was found that the motion judge erred by focusing his analysis on the allocation of blame for delay rather than assessing whether there was a reasonable explanation for the litigation delay. Further, he decided the issue of prejudice predominantly based on a mechanized assessment of the passage of time rather than considering prejudice as a question of fact.
In assessing litigation delay, the Court of Appeal held that the Plaintiff is not required to account for delay on a month-to-month basis and that applying too exacting a standard to restore actions to the trial list undermines the efficient use of judicial resources by encouraging contested motions to restore actions to the trial list. The motions judge was also found to have erred by focusing on the Plaintiff’s conduct rather than the overall dynamics of the litigation. While the Plaintiff has the primary responsibility to move the litigation forward, the Court rejected that it still remains an acceptable practice for a defendant to wait until the Plaintiff makes the next move. Rather, all parties play an important role in moving actions forward. In allowing the appeal, the Court of Appeal held the litigation delay had been adequately explained and the just order was to restore the action to the trial list for the following non-exhaustive reasons:
- the case was ready for trial at the time the motion was heard, and “keeping an action that is ready for trial off the [trial] list is punitive rather than efficient”.;
- the Appellant had an unwavering intention to proceed to trial and had no motive to delay the action; and
- the Respondent expressed no concern regarding the speed of litigation until the motion to restore the action to the trial list was opposed.
The Court of Appeal reiterated that the relevant consideration in evaluating the issue of prejudice is the Respondent’s ability to defend the action occasioned by litigation delay. The mere passage of time is generally insufficient to establish prejudice. While the Respondent argued that one “key” witness may not be available for trial, the Respondent only attempted to contact this witness on the eve of the motion to restore the action to the trial list, namely, approximately 7 years after the action was commenced. Further, the Court held that mere speculation in a case may depend upon oral evidence together with the assumption that witnesses memories generally fade over time, without more, is not sufficient to prevent the Plaintiff from satisfying the prejudice aspect of the test.
As the test applied in this case to restore an action to the trial list is the same as the test utilized on a status hearing, the Court of Appeal is signaling that a more liberal and contextual approach ought to be taken to avoid a mechanical application of the test to dismiss actions for delay that would otherwise result in unjust consequences and hinder, rather than enhance, the goals of providing timely, efficient, and cost-effective access to justice.
Cariocas’ Import and Export Inc. v. Canadian Pacific Railway Limited, 2015 ONCA 592