



COURT OF APPEAL FOR ONTARIO

CITATION: 990114 Ontario Ltd. (Paradise Bingo) v.
    Munsee-Delaware Nation, 2015 ONCA 923

DATE: 20151223

DOCKET: C60443

Sharpe, Brown and Roberts JJ.A.

BETWEEN

990114
    Ontario Ltd., operating as Paradise
    Bingo, and Michael Duval

Appellants

and

Munsee-Delaware
    Nation, Patrick Waddilove,
    Jody Waddilove and
    Carmen Dolson

Respondents

Raymond Colautti, for the appellants

Sean Flaherty, for the respondents

Heard and released orally: December 18, 2015

On appeal from the judgment of Justice A.K. Mitchell of
    the Superior Court of Justice, dated April 20, 2015.

ENDORSEMENT

[1]

The appellants appeal a decision dismissing their action for delay pursuant
    to Rule 48.13(14).

[2]

The appellants failed to comply with the timetable laid down at the
    first status hearing and, at a second status hearing, they were unable to
    provide the motion judge with a satisfactory explanation for their failure to
    move the action to trial.

[3]

The motion judge followed the principles laid down by this courts
    decision in
1196158 Ontario Inc. v. 6274013 Canada Ltd.
, 2012 ONCA 544,
    and dismissed the action.

[4]

We see no error that would justify this court in interfering with the
    motion judges discretionary decision.

[5]

We agree with the motion judges conclusion that the only thing
    throughout the six-year history of this action that has spurred the appellants
    into action was the issuance of status notices.

[6]

We do not agree that the fact that the respondents took the position
    that Danny Branoff had drafted the lease provided the appellants with an excuse
    for failing to move this action forward. That allegation did not amount to a
    new defence but rather was evidence of a defence already pleaded, namely, that
    the appellants did not rely on representations made by the respondents.

[7]

Nor do we agree that the respondent can be faulted for asking that the
    matter be struck from the trial list in October 2013. The appellants consented
    to that request which was prompted by their failure to respond to the
    respondents request for a discovery plan several months earlier.

[8]

The motion judge carefully considered the history of this case and she weighed
    the relevant factors. We see no error in fact or principle.

[9]

Accordingly, the appeal is dismissed.

[10]

Costs
    to the respondents fixed at $7,500, inclusive of disbursements and taxes.

Robert J. Sharpe J.A.

David Brown J.A.

L.B. Roberts J.A.


