Court Dismisses Action Set Down for Trial 15 Years After the Close of Pleadings for Delay

For a variety of reasons, lawsuits tend to drag on for a very long period of time. It is the plaintiff’s obligation to move the lawsuit forward. When acting for a defendant in a case that has dragged on (through no fault of the defendant), I am often asked whether we can ask the Court to have the lawsuit dismissed for delay. I tell my clients that they can bring a motion to dismiss the action for delay (provided one of the enumerated procedural defaults have occurred), but that winning such motions are extremely difficult. The governing principle taken by the Court is that a lawsuit should not be dismissed unless: (a) the default is intentional and contumelious, or (b) the plaintiff or their lawyers are responsible for an inexcusable delay that gives rise to a substantial risk that a fair trial might no longer be possible.

Our justice system prefers to have disputes resolved on their merits, as opposed to on a procedural basis. For this reason, the Court has, generally, been historically hesitant to grant Orders dismissing lawsuits for delay on motions brought by defendants. However, Master McAfee decided last week in Horgan v. The Law Society of Upper Canada that the lawsuit should be dismissed for delay, notwithstanding that procedurally the case was almost ready for trial.

The event’s giving rise to Horgan’s $6 million claim for negligence, malicious prosecution and abuse of process occurred in 1986 and 1987 when the Law Society investigated Horgan, issued a complaint in 1987, and withdrew the complaint in 1989. Horgan started his lawsuit in February, 1995. In October of 1996 his claim was amended and the Law Society delivered an amended defence. Nothing happened for 4.5 years, until the lawsuit was subject to a Call Over Court Notice which required an attendance in June, 2001. At this time the lawsuit was assigned into case management.

Things hummed along from 2001 – 2005 (if anything can really hum along over the span of 4 years that is). Documentary and oral discovery was conducted and a lengthy motion was heard for leave to further amend the statement of claim. The decision from that motion was released in two parts; in May, 2004 and March, 2005. The Master hearing the motion granted Horgan limited permission to amend the statement of claim further.

From the defendant’s standpoint, nothing further happened until early 2010 when Horgan served a notice that he would be representing himself going forward and advising the Law Society that he wanted to set the action down for trial and that, therefore, mediation must be arranged. The Law Society responded shortly thereafter and advised Horgan that mediation was premature (presumably) given that Horgan had not yet amended his claim as he was permitted to do following the motion that was argued six years prior.

The Law Society heard nothing for a further 11 months when Horgan sent a letter indicating that he wanted to proceed with mediation and (if the lawsuit did not settle) set it down for trial. Horgan also advised that he would not be making further amendments to his claim. The Law Society then brought a motion to have the lawsuit dismissed for delay.

The Law Society argued that Horgan was responsible for an inexcusable delay and that there was a substantial risk that a fair trial was no longer possible. A delay is inexcusable if the explanation given is not “reasonable and cogent” or “sensible and persuasive”. Horgan’s evidence only attempted to explain the delay from 2008 to the spring of 2011. Master McAfee held that the explanation (poor health and inability to obtain his file from his former lawyer due to an assessment hearing) was insufficient to justify the delay. She also was unimpressed by the complete lack of explanation of the delay from 1996 – 2001 and from 2005 – 2008.

With respect to prejudice, Master McAfee noted that many of the Law Society’s witnesses were now elderly, no longer employed by the Law Society, had little to no memory of the events at issue, or could not be located. She held that not only had the plaintiff failed to rebut the presumption of prejudice, but that she was satisfied that the Law Society had proven actual prejudice. As a result, she concluded that there was a substantial risk that a fair trial might no longer be possible and dismissed the action for delay.

Horgan is unusual in the sense that not only was the defendant successful in having the case dismissed, it was successful notwithstanding that the action was nearly ready for trial. However, given that it had taken Horgan over a quarter of a century to reach the eve of trial, there was no guarantee that the trial would have been held before the end of this decade, if at all.

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