



COURT OF APPEAL FOR ONTARIO

CITATION: Jacob v. Playa El Agua Development Limited
    Partnership, 2015 ONCA 372

DATE: 20150525

DOCKET: C59761

MacPherson, Cronk and Gillese JJ.A.

BETWEEN

Jose-Bernard Jacob

Plaintiff (Appellant)

and

Playa El Agua
    Development Limited Partnership, Playa El Agua Development General Partner
    Ltd.,
Morris, Rose, Ledgett, The Estate of John Church
,
    Torcat, Michael Paterson,
Harvey Wortsman, Hwa Lee
,
    Dennis Derry, and Seaviewdevelopments de Venezuela C.A.

Defendants(Respondents)

Robert A. Maxwell, for the appellant

Jack B. Berkow and Ranjan Das, for the respondents
    Morris, Rose Ledgett and Harvey Wortsman

David A. Brooker, for the respondents the Estate of John
    Church and Hwa Lee

Heard and released orally: May 21, 2015

On appeal from the Order of Justice Darla A. Wilson of
    the Superior Court of Justice, dated November 19, 2014.

ENDORSEMENT

[1]

The appellant Jose-Bernard Jacob appeals the Order of D. Wilson J. of
    the Superior Court of Justice dated November 19, 2014 dismissing this action
    against these four defendants.

[2]

The action, which relates to a property transaction in Venezuela, was
    commenced by the appellant in 1998. By the autumn of 2014, it had still not
    come to trial. There is a long list of steps, missteps, inactivity and silence
    during the 16-year life of the action. All of it was documented in the
    well-organized and comprehensive reasons of the motion judge. The overwhelming
    majority of the missteps, inactivity and silence clearly rest at the feet of
    the appellant, as the motion judge found.

[3]

The well-established test is that an action should not be dismissed for
    delay unless: (1) the delay is intentional and contumelious; or (2) there is an
    inordinate, inexcusable delay, for which the plaintiff or his lawyer is
    responsible, which gives rise to a substantial risk that a fair trial might not
    now be possible: see
Langenecker v. Sauvé
, 2011 ONCA 803, at paras.
    6-7.

[4]

It is the second branch of the test that is in issue on this appeal.
    There can be no question that the delay in this case was inordinate. In
Langenecker
,
    Doherty J.A. said, at para. 8, that there can be no doubt that 15 years from
    the commencement of the action to the motion to dismiss constitutes inordinate
    delay. Obviously, the same comment applies to a 16-year delay.

[5]

In our view, the delay was as clearly inexcusable as it was inordinate.
    The motion judge documented a long list of missteps and omissions involving
    answering undertakings, producing documentation, serving expert reports on both
    liability and damages, and other matters. Moreover, as the motion judge found,
    credibility was a central issue in this action in which allegations of fraud
    and conspiracy were made against several of the defendants, including the
    respondents. She also carefully considered the issue of prejudice, including
    the fact that two of the principal defendants had died during the actions long
    life.

[6]

In summary, we are in substantial agreement with the motion judges
    reasons. The appellants attack, both procedural and substantive, on those
    reasons is unpersuasive. The motion judge was right to invoke and apply to this
    action what Lauwers J.A. said in
Wallace v. Crates Marine Sales Ltd.
,
    2014 ONCA 671, at para. 22: [T]here comes a time, in short, when enough is
    enough, and the civil justice system will no longer tolerate inordinate and
    inexplicable delay.

[7]

The appellant also appeals the costs order made by the trial judge. We
    see no basis for interfering with her costs award. It is neither plainly wrong
    nor tainted by an error in principle.

[8]

The appeal is dismissed. The respondents are entitled to their costs of
    the appeal fixed at $12,000 (Morris, Rose, Ledgett and Harvey Wortsman) and
    $7,000 (Hwa Lee and the Estate of John Church), both inclusive of disbursements
    and applicable taxes.

J.C. MacPherson J.A.

E.A. Cronk J.A.

E.E. Gillese
    J.A.


