



COURT OF APPEAL FOR ONTARIO

CITATION:

Ever Fresh Direct Foods Inc. v. Jamia Islamia Canada
    Ltd., 2022 ONCA 185

DATE: 20220307

DOCKET: C69254

Simmons, Harvison Young and
    Zarnett JJ.A.

BETWEEN

Ever Fresh Direct Foods Inc.

Plaintiff (Appellant)

and

Jamia Islamia Canada Ltd.

Defendant (Respondent)

Haider Bahadur and Yingjun Huang, for
    the appellant

Anser Farooq and Shivani Balcharan, for
    the respondent

Heard: February 25, 2022 by
    video conference

On appeal from the order of Justice Peter
    A. Daley of the Superior Court of Justice, dated February 19, 2021.

REASONS FOR DECISION


[1]

We see no basis on which to interfere with the
    motion judge's order declining to restore this action to the trial list,
    dismissing it for delay and discharging a certificate of pending litigation
    registered by the appellant.

[2]

The proceeding was commenced by notice of
    application issued in October 2012 and was converted to an action at the
    request of the respondent in March 2013. The proceeding related to an alleged
    loan facility granted by the appellant to the respondent in 2008. After
    commencing the application, the appellant obtained a certificate of pending
    litigation in November 2012 and registered it against property owned by the
    respondent. The parties exchanged pleadings in August and September 2013.

[3]

The appellant never served an affidavit of
    documents
[1]
and made no attempt to schedule discoveries until November 2017. The respondent
    declined to participate in discoveries, which the appellant scheduled for March
    2018, among other reasons because of an unpaid costs order in a related
    proceeding between the parties for over $56,000 and because the appellant had
    not served an affidavit of documents.

[4]

The appellant responded by setting the action
    down for trial in April 2018. However, it was struck from the trial list in
    August 2018 as it was not trial ready, including because the appellant still
    wished to conduct discoveries. The appellant first advised the respondent of
    its intention to move to restore the action to the trial list in May 2019, and
    proposed a discovery plan in July 2019, but did not arrange to proceed with a
    motion until September 2019. The appellants motion and the respondents
    cross-motion to dismiss for delay were originally scheduled for May 2020 but
    were not heard until November 30, 2020 because of the Covid-19 pandemic.

[5]

The motion judge found that, apart from the
    relatively brief delay caused by the pandemic, the delay in the prosecution of
    the action was entirely the appellants responsibility, that the appellant had
    provided no reasonable explanation for its delay in moving the action forward
    and that such delay was both inordinate and inexcusable. He also concluded that
    an inference of prejudice arose from the lengthy delay. He said, there is more
    than a reasonable likelihood that given the passage of time and its impact on
    witnesses memories, and the lack of documentary and oral discoveries, there is
    a substantial risk that a fair trial of the issues at stake will not be
    possible.

[6]

We see no error in the motion judges
    conclusions that responsibility for the delay lay with the appellant and that
    such delay was unexplained, inordinate and inexcusable. The appellant offered
    no explanation for the complete failure to take any steps to move the action
    forward between delivery of its statement of claim in August 2013 and November
    2017 or for the delay between August 2018 through to May and then September
    2019 after the action was struck from the trial list. Given the litigation
    history between the parties and the then existing delay, the motion judge was
    entitled to treat as reasonable the respondents refusal to participate in
    discoveries post-November 2017 based on the unpaid costs order in related
    proceedings and the appellants failure to serve an affidavit of documents.

[7]

Concerning prejudice, as we have said, the
    action related to an alleged loan facility arranged in 2008. The disputed
    issues included the validity of the original agreement. We reject the
    appellants arguments that the motion judge should have concluded that
    cross-examinations on affidavits that occurred in relation to converting the
    application to an action and an unserved affidavit of documents lacking a
    lawyers certificate prepared in November 2013 could somehow ensure trial
    fairness. Simply put, they were not an adequate substitute for a proper
    discovery process. We see no basis for interfering with the trial judges
    conclusion that the appellants delay jeopardized the likelihood of a fair
    trial.

[8]

Based on the foregoing reasons, the appeal is
    dismissed with costs to the respondent on a partial indemnity scale fixed in
    the amount of $10,000 inclusive of disbursements and applicable taxes.

Janet Simmons J.A.

Harvison Young J.A.

B. Zarnett J.A.





[1]

An affidavit of documents lacking a lawyers certificate
    sworn in November 2013 by the president of the appellant was included in the
    appellants material on the underlying motions. No proper affidavit of
    documents has ever been served.


