When is Delay Fatal to an Action?

Written on September 17, 2012.

The Court of Appeal for Ontario has recently set forth a helpful review of when delay is fatal to an action, even when prejudice to the defendant is absent, in its decision in  1196158 Ontario Inc. v. 6274013 Canada Limited, 2012 ONCA 544 (CanLII), in which it states: “Modern civil procedure recognizes the need to deal with unexplained delay and, through rules such as rule 48.14, provides for an active judicial role “to promote the timely resolution of disputes, to discourage delay in civil litigation and to give the courts a significant role in reducing delays”: Todd Archibald, Gordon Killeen & James C. Morton, Ontario Superior Court Practice (Markham: LexisNexis Canada, 2011), at p. 1205. As judgments of this court and the Superior Court recognize, if an action could not be dismissed for delay unless there was proof of actual prejudice, time lines would become meaningless. Where a party fails to prosecute an action in a timely fashion, the court is entitled to exercise the powers conferred by the rules to dismiss actions absent an adequate explanation for the delay: Riggitano v. Standard Life Assurance Co., [2009] O.J. No. 1997 (S.C.), at para. 45, aff’d 2010 ONCA 70 (CanLII), 2010 ONCA 70, [2010] O.J. No. 292.”