Beard Winter LLP successful in upholding dismissal of action for delay at Court of Appeal
On June 8, 2018, the Ontario Court of Appeal released its decision in Farmer v. 145 King Street West et al., 2018 ONCA 525 upholding an order dismissing the plaintiff’s claim for delay. The case was a joint action relating to two separate events – an alleged slip and fall and a motor vehicle accident, both occurring in 2009. The original action had been commenced in 2011. Beard Winter LLP acted as appellate counsel for the defendant John MacPherson.
The action had been subject to a timetable order in October 2015. This timetable had been a “lifeline” to save the action. Among other steps, the timetable required the action to be set down for trial no later than October 19, 2016.
Following the plaintiff’s failure to move the matter forward and set the matter down for trial as required by the timetable, the defendants moved for an order dismissing the plaintiff’s action for delay under Rule 24.01 and for failure to comply with an interlocutory order under Rule 60.12 of the Rules of Civil Procedure. The defendants were successful on both grounds and the plaintiff appealed the order dismissing the action for delay under Rule 24.01.
The Ontario Court of Appeal dismissed the plaintiff’s appeal, finding, in part, that there was a “substantial risk that a fair trial of the issues in litigation would not be possible because of the delay” and that the decision of the motion judge was entitled to deference.