Action dismissed for delay despite lack of fault by plaintiff

In Machacek v. Ontario Cycling Assoc, 2011 ONCA 410 the Court of Appeal refused an appeal of an order of the Superior Court of Justice which dismissed the appellants' motion to set aside the registrar's dismissal of their action for negligence. The delay was found to be the fault of the solicitor and not the party. No evidence of actual prejudice was found. Nevertheless, the Court upheld the dismissal saying:

[9] Virtually all of the delay between September 2006 and March 2010 is attributable to the failure of counsel for the appellants to move the action along and take the appropriate steps to set aside the registrar's order. The observation made by Sharpe J.A. in Marché D'Alimentation Denis Thériault Ltée v. Giant Tiger Stores Limited, 2007 ONCA 695 at para. 31 applies to the case at bar:

…the nature of the delay and the solicitors' conduct in this case amount to more than that kind of lapse or inadvertent mistake that the legal system can countenance. We should opt for a resolution that discourages this type of conduct which undermines the important value of having disputes resolved in a timely fashion. The decision of the Master sends the right message and provides appropriate incentives to those involved in the civil justice system.

Sharpe J.A.'s comments at para. 32 are also apt:

Moreover, excusing a delay of this magnitude and gravity risks undermining public confidence in the administration of justice. Lawyers who fail to serve their clients threaten public confidence in the administration of justice. The legal profession itself has recognized this danger: Commentary to rule 2.01 of the Law Society of Upper Canada's Rules of Professional Conduct states, "A lawyer who is incompetent does the client a disservice, brings discredit to the profession, and may bring the administration of justice into disrepute." [Emphasis added.] There is a risk that the public would perceive disregarding the solicitor's conduct in the circumstances of this case as the legal system protecting its own. Excusing a delay of this kind would throw into question the willingness of the courts to live up to the stated goal of timely justice.

[10] Counsel for the appellants, in his able argument, emphasized that the more significant consideration in the case at bar is that there is no evidence of actual prejudice as found by the motion judge. While this is an important factor, it has to be balanced by a consideration of the finality principle. In our view, the delay in this case and the conduct of counsel tips the balance towards the latter. As Sharpe J.A. found in Giant Tiger "reinstating the action at this point would undermine the finality principle while refusing to reinstate the action does not interfere with the need to ensure adequate remedies." In respect to the latter comment, we note that the appellants are not left without a remedy as they still have recourse through an action in solicitor's negligence.