Dismissal for delay

Langenecker v. Sauvé, 2011 ONCA 803 deals in detail with dismissal of a civil action for delay. The Court writes:

[3]              An order dismissing an action for delay is obviously a severe remedy.  The plaintiff is denied an adjudication on the merits of his or her claim.  Equally obviously, however, an order dismissing an action for delay is sometimes the only order that can adequately protect the integrity of the civil justice process and prevent an adjudication on the merits that is unfair to a defendant. 

[4]              The test under Rule 24.01 for dismissal of an action for delay is well established and is taken from English case law:  see e.g. Saikaley v. Commonwealth Insurance Co. et al. (1978), 21 O.R. (2d) 629 (H.C.); Armstrong v. McCall et al. (2006), 213 O.A.C. 229; De Marco v. Mascitelli (2001), 14 C.P.C. (5th) 384 (Ont. S.C.); Allen v. Sir Alfred McAlpine & Sons, Ltd. [1968] 1 All E.R. 543 at 556.

[5]              The language used to describe the appropriate test varies slightly in the authorities.  I prefer the language of Lord Diplock in Allen, at p. 556, where he described the exercise of the power to dismiss for delay in these terms:

It should not in any event be exercised without giving the plaintiff an opportunity to remedy his default, unless the court is satisfied either that the default has been intentional and contumelious, or that the inexcusable delay for which the plaintiff or his lawyers have been responsible has been such as to give rise to a substantial risk that a fair trial of the issues in the litigation will not be possible at the earliest date at which, as a result of the delay, the action would come to trial if it were allowed to continue.

[6]              The first type of case described by Lord Diplock refers to those cases in which the delay is caused by the intentional conduct of the plaintiff or his counsel that demonstrates a disdain or disrespect for the court process.  In dismissing cases which fall within this category, the court effectively declares that a continuation of the action in the face of the plaintiff's conduct would constitute an abuse of the court's process.  These cases, thankfully rare, feature at least one, and usually serial violations of court orders.  This case does not fall into that category.

[7]              The second type of case that will justify an order dismissing for delay has three characteristics.  The delay must be inordinate, inexcusable and such that it gives rise to a substantial risk that a fair trial of the issues in the litigation will not be possible because of the delay:  see De Marco, at paras. 22, 26; Armstrong, at paras. 11-12. 

[8]              The inordinance of the delay is measured simply by reference to the length of time from the commencement of the proceeding to the motion to dismiss.  Most litigation does not move at a quick pace.  Some litigation, because of the issues raised and/or the parties involved, will move even more slowly than the average case.  It is fair to say that many medical malpractice actions are among those cases that move slowly.  However, even accepting that litigation customarily moves at a somewhat stately pace and that this kind of litigation can move even more slowly than most, there can be no doubt that 15 years from the commencement of the action to the motion to dismiss constitutes inordinate delay.

[9]              The requirement that the delay be "inexcusable" requires a determination of the reasons for the delay and an assessment of whether those reasons afford an adequate explanation for the delay.  As LaForme J. explained in De Marco, at para. 26, explanations that are "reasonable and cogent" or "sensible and persuasive" will excuse the delay at least to the extent that an order dismissing the action would be inappropriate. 

[10]         In assessing the explanations offered, the court will consider not only the credibility of those explanations and the explanations offered for individual parts of the delay, but also the overall delay and the effect of the explanations considered as a whole.  For example, in this case, the appellants offered a "sensible and persuasive" explanation for part of the lengthy delay in completing the discovery process, but offered little by way of cogent explanation for the many other lengthy delays that occurred in the course of the 15 years since this action was commenced.

[11]         The third requirement is directed at the prejudice caused by the delay to the defence's ability to put its case forward for adjudication on the merits.  Prejudice is inherent in long delays.  Memories fade and fail, witnesses become unavailable, and documents and other potential exhibits are lost.  The longer the delay, the stronger the inference of prejudice to the defence case flowing from that delay:  Tanguay v. Brouse, 2010 ONCA 73, at para. 2. 

[12]         In addition to the prejudice inherent in lengthy delays, a long delay can cause case-specific prejudice.  In this case, the respondents led evidence on the motion that their expert had died in June 2009 and that counsel for the respondents had been unable to find a replacement.  The respondents argued that their inability to obtain an expert was caused by the delay in the prosecution of the claim and resulted in prejudice to their defence.  Clearly, if the appellants' delay left the respondents in a position where they could not obtain a medical opinion in a medical malpractice case, that delay would cause serious prejudice to the defence.  I will return to this submission below.