There are clear guidelines contained in the Rules of Civil Procedure, R.R.O. 1990 (the “Rules”) governing the dismissal of an action, Rule 24.01 of which sets out the circumstances in which a Court may dismiss an action for delay.
However, there is no such equivalent or analogous statutory authority that applies to proceedings commenced by way of Notice of Application and Courts have in fact expressly rejected the application of Rule 24.01 of the Rules to applications.
The Langenecker Test
Rather, as the Court in Court of Appeal for Ontario clarified in Arapakota v. Imex Systems Inc., 2025 ONCA 367 (“Arapakota”), Courts retain their “…inherent jurisdiction to control their own processes, which includes the discretionary power to dismiss applications for delay” and this “…is true whether the proceeding is commenced as an application or an application.” [citations omitted]
Courts in this jurisdiction have relied upon the test as articulated in Langenecker v. Sauvé, 2011 ONCA 803. Thus, a Court may be justified in dismissing “…a proceeding for delay… where the delay is inordinate, inexcusable, and prejudicial to the respondents in that it gives rise to a substantial risk that a fair determination of the issues will not be possible.”
A Recent Culture Shift
There has been a recent discernible culture shift in the appellate treatment of the Langenecker test.
Thus, in Barbiero v. Pollack, 2024 ONCA 904 (“Barbiero”), a unanimous Court of Appeal for Ontario heavily criticized the principles articulated in the Langenecker test as being anachronistic and seriously flawed in light of the development of jurisprudence respecting litigation delays in the decade following the decision.
The Barbiero Court concluded that an inordinate and unjustifiable delay does not merely give rise to a rebuttable presumption of prejudice but may be per se sufficiently prejudicial to warrant dismissal of proceedings on that basis alone. It is therefore not necessary to consider the other arms of the Langenecker test once an inordinate and unjustifiable delay has been clearly established by the moving party.
The Barbiero Court’s comments are instructive in this regard:
“Ms. Barbiero does not contend the motion judge erred in identifying those as the governing principles; her complaint is that the motion judge misapplied them. Yet, I am troubled that a plaintiff could seek to find refuge in Langenecker to defend her failure to set down an action for trial more than 20 years after its commencement. In my view, that signals the Langenecker approach to delay is out of step with the contemporary needs of the Ontario civil court system. [Emphasis added.]
…
Under the Langenecker approach, delay or the passage of time on its own cannot constitute harm or prejudice sufficient to support the dismissal of an action [Emphasis added.]. Langenecker merely treats the existence of delay as giving rise to a rebuttable presumption of prejudice — that is to say, the lingering of an action in our courts for over two decades may or may not result in a harm or prejudice. According Langenecker, it all depends.
I strongly question whether Ontario’s civil courts can achieve the culture shift demanded by the Supreme Court of Canada in Hryniak if they continue to cling to Langenecker ‘s lax attitude toward delay. [Emphasis added.]
…
As well, Langenecker ‘s tolerant attitude toward delay is out of step with a key element of the general principle for civil litigation set out in r. 1.04(1) of the Rules of Civil Procedure, namely to secure the “most expeditious … determination of every civil proceeding on its merits”. A litigation culture based Langenecker focuses more on justifying delay than on achieving the most expeditious determination of civil proceedings. To the extent that Langenecker denies that the passage of time, on its own, can constitute sufficient prejudice to dismiss an action for delay and not simply a rebuttable presumption of prejudice, it should not be followed. [Emphasis added.]”
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