



COURT OF APPEAL FOR ONTARIO

CITATION: Kobylecki v. Toronto
    (Municipality), 2013 ONCA 280

DATE: 20130429

DOCKET: C56210

Laskin, Cronk and Hoy JJ.A.

BETWEEN

James Walter Kobylecki

Plaintiff (Appellant)

and

The Municipality of Metropolitan Toronto and                                                     Fer-Pal
    Construction Ltd.

Defendants (Respondents)

Rod Byrnes, for the appellant

Natalie D. Kolos, for the respondent, The Municipality
    of Metropolitan Toronto

Andrew L. Mercer, for the respondent, Fer-Pal
    Construction Ltd.

Heard: April 26, 2013

On appeal from the order of Justice Gloria R. Klowak of
    the Superior Court of Justice, dated September 20, 2012.

APPEAL BOOK ENDORSEMENT

[1]

The plaintiff was injured in August 2003.  He issued a claim against the
    city in November 2003, and added Fer-Pal as a defendant in August 2005. 
    However, in nearly 10 years since the accident occurred, virtually nothing
    further has taken place in this litigation.  Over long periods of time, the
    plaintiff has taken no steps at all to move this action forward.  No
    discoveries have yet been held, and the action has not been set down for trial.

[2]

Both defendants brought motions to dismiss the action for delay under r.
    24.01(1)(c), which entitles  a defendant to move to dismiss an action for delay
    if the action has not been set down for trial within six months of the close of
    pleadings.

[3]

Klowak J. granted the motion.  She concluded that the presumption of
    prejudice that arises from a lengthy delay had not been rebutted.  We are not
    persuaded that she erred in her conclusion.  The plaintiff has simply filed no
    evidence to show the absence of prejudice.  In particular, the plaintiff has
    filed no evidence to support his contention that he is the only material
    witness to the incident, and that the rest of the relevant evidence is
    documentary.

[4]

In addition, the plaintiff has produced no medical records showing the
    course of his injuries after his initial treatment.

[5]

As we have found no error in the reasons of the motion judge, the appeal
    is dismissed with costs, which we fix as follows:

·

The Municipality of Metropolitan Toronto - $5,500, inclusive of
    disbursements and applicable taxes

·

Fer-Pal Construction Ltd. - $2,500, inclusive of disbursements
    and applicable taxes.


