Yesterday, I blogged about motions to dismiss an application for delay. Today, I will discuss the recent decision in Estate of Angela Sebanc v Peter Sebanc, released on May 8, 2024, which dealt with a motion to dismiss an action for delay, and provided a summary of the principles and tests governing such motions.

Procedural Background

Victor and Peter Sebanc are two of Angela and Felix Sebanc’s five children. Victor was appointed Angela’s Estate Trustee and on April 30, 2018, issued a Statement of Claim naming Peter as the Defendant.

The litigation progressed slowly over a period of approximately 5 years, from April 2018 to June 2023. During this time, the Plaintiff attempted to examine the Defendants but twice they failed to appear for examinations.

In June 2023, the Plaintiff served motion materials for summary judgment and on August 23, 2023, the Defendants served a motion to dismiss the action for delay under Rule 24.01 of the Rules of Civil Procedure.

How is the Delay Classified?

In this case, Justice Bloom referred to The Law of Civil Procedure in Ontario by Paul M. Perell and John W. Morden wherein they discussed the principles that govern motions to dismiss actions for delay.

Perell and Morden state that it is a matter of the court’s judicial discretion to dismiss an action for delay. It is a high bar to meet, and courts are generally reluctant to dismiss an action without a hearing on the merits.

They also discuss the approach Ontario courts have adopted from Allen v Sir Alfred McAlpine and Sons Ltd which is that for an action to be dismissed for delay, the plaintiff’s delay must: “(a) be shown to have been intentional and contumelious; or (b) inexcusable and prejudicial to the defendant’s right to have a fair trial of the action.”

A delay will be found to be intentional and contumelious if the plaintiff has deliberately contravened a peremptory order of the court. If that is not the case, the party moving to dismiss the action must show that: “(a) the delay was inordinate or unreasonable; (b) the delay was inexcusable; and (c) the delay would give rise to a substantial risk that a fair trial of the issues in the litigation would not be possible”

If a delay is found to be inordinate and inexcusable, there is a presumption of prejudice against the moving party.

Prejudice

The longer a delay is, the stronger the inference of prejudice the court will draw. The plaintiff can displace the presumption of prejudice by showing that the determination of the issue has not been adversely impacted by the delay.

While prejudice to the defendant is an important consideration in dismissing an action, if a party fails to provide a reasonable explanation for the delay, the court may dismiss the action even without proof of prejudice.

Although the plaintiff bears primary responsibility for moving along the litigation, the defendant cannot rely on a delay that they caused.

Decision

Justice Bloom ultimately found that in the case at bar, the defendants had not proven a dismissal was warranted for delay. The delay was not intentional, contumelious, unreasonable or inexcusable. Justice Bloom also found that the Defendant’s conduct placed them in default under the Rules and therefore barred them from the use of Rule 24.01.

Thanks for reading!

Darien Murray