





CITATION:
Khan v. Sun Life Assurance Company of
          Canada, 2011 ONCA 650



DATE: 20111018



DOCKET: C53307 ( M40570)



COURT OF APPEAL FOR ONTARIO



Doherty, Weiler and Cronk JJ.A.



BETWEEN



Shabbir Khan



Plaintiff (Appellant)



and



Sun Life Assurance Company of Canada



Defendant (Respondent)



Michael Kelly and Sabrina Singh, for the appellant



K. Michael McLoughlin, for the respondent



Heard:
October 14, 2011



On appeal from the order of Justice
          M. D. Parayeski, of the Superior Court of Justice, dated January 20, 2011.



APPEAL BOOK ENDORSEMENT



[1]

We see no basis on which to interfere with the motion judges
    discretionary decision to dismiss the appellants action on the basis of
    delay.  At the status hearing, which was originally requested by the appellant,
    the appellant bore the burden of demonstrating that there was an acceptable
    explanation for the involved litigation delay and that, if the action was
    allowed to proceed, the respondent would suffer no non-compensable prejudice.

[2]

On this record, the appellant failed to meet either branch of this
    test.  Based on the affidavit materials filed on behalf of the appellant, it
    was open to the motion judge to conclude that no plausible explanation for the
    appellants delay in proceeding with the action had been advanced.  There was
    evidential support for the motion judges finding that insofar as the appellant
    and his counsel were concerned, this file has simply been ignored.

[3]

Further, the motion judge made no error in concluding that the appellant
    had also failed to demonstrate the absence of prejudice to the respondent, at
    least in respect of the appellants claim for long-term disability benefits. 
    Moreover, counsel for the appellant made no suggestion before the motion judge
    that the appellants short-term and long-term disability benefits claims could
    or should be severed.

[4]

The appeal is therefore dismissed.

[5]

The appellant also seeks leave to appeal the motion judges adverse
    costs award.  We see no error in principle in the motion judges costs
    decision, nor is it plainly wrong.  Accordingly, leave to appeal costs is
    denied.

[6]

The respondent is entitled to its costs of this appeal and of the motion
    for leave to appeal costs, fixed, as agreed by counsel, in the aggregate sum of
    $7,500, inclusive of disbursements and all applicable taxes.


