



COURT OF APPEAL FOR ONTARIO

CITATION: Figueroa v. Patel, 2019 ONCA 42

DATE: 20190124

DOCKET: C65449

Sharpe, Juriansz and Roberts JJ.A.

BETWEEN

Eddie Figueroa

Plaintiff/Appellant

and

Narendrabhai Patel and
Wawanesa
    Insurance Company

Defendants/Respondent

and

Fenchurch
    General Insurance Company, added by an Order

pursuant
    to Section 258(14) of the Insurance Act, R.S.O. 1990, c. 18

Third Party/Respondent

William G. Scott, for the appellant

A. Charles Gluek, for Wawanesa Insurance Company

John K. Downing and Hermina Nuric, for Fenchurch General
    Insurance

Heard and released orally: January 18, 2019

On appeal from the
    order of Justice Kofi N. Barnes of the Superior Court of Justice, dated May 2,
    2018.

REASONS FOR DECISION

[1]

In our view, this appeal from the dismissal of the action for delay must
    be dismissed.  This personal injury action arises from an accident that
    occurred in 2002.  The claim was issued in 2004 and served late.  It is now 14
    years since the action was commenced and almost 17 years since the accident. 
    As the appellant concedes, the delay is inordinate.

[2]

The case law establishes that it is the primary responsibility of the
    plaintiff to move the action forward.  The motion judge found that the
    plaintiff was responsible for the overall delay in this case.  We do not accept
    the submission that the motion judge ignored evidence of the defendants
    conduct and responsibility for some of the delay.  The record supports the conclusion
    that the delay was inexcusable.

[3]

Prejudice is presumed from the delay of this length.  Moreover, there is
    clear evidence of actual prejudice in this case.

[4]

Accordingly, the appeal is dismissed.  Costs to Fenchurch General
    Insurance Company fixed at $10,000 inclusive of costs and disbursements, and
    costs to Wawanesa Insurance Company fixed at $4,000 inclusive of taxes and
    disbursements.

Robert Sharpe J.A.

R.G. Juriansz J.A.

L.B. Roberts J.A.


