



COURT OF APPEAL FOR ONTARIO

CITATION:
1196158
    Ontario Inc. v. 6274013 Canada Limited, 2012 ONCA 544

DATE20120821

DOCKET: C54452

Laskin, Sharpe and Epstein JJ.A.

BETWEEN

1196158 Ontario Inc.

Plaintiff (Appellant)

and

6274013 Canada Limited, Rob Kumer, CB Richard Ellis
    Limited, John LaFontaine, Karen Pickernell, Carl Lavoie, William Neilson
    Limited, Toronto Hydro Corporation, Toronto Hydro-Electric System Ltd. and
    Toronto Hydro Energy Services Inc.

Defendants (Respondents)

William Pepall and Louise Moher, for the appellant

J. Schatz and D. Holden, for the respondents 6274013
    Canada Limited and Rob Kumer

Sonja Williams, for the respondents Toronto Hydro
    Corporation, Toronto Hydro-Electric System Ltd. and Toronto Hydro Energy
    Services Inc.

S. Pettipiere, for the respondent CB Richard Ellis
    Limited

Christiaan Jordaan, for the respondent William Neilson
    Limited

Heard: June 7, 2012

On appeal from the order of Justice Leonard Ricchetti of
    the Superior Court of Justice dated September 15, 2011, with reasons reported at
    2011 ONSC 5410.

Sharpe
    J.A.:

[1]

The plaintiffs action, commenced in September 2006, had not proceeded
    beyond the close of pleadings five years later in September 2011 and was
    dismissed on a rule 48.14 status hearing.

[2]

The court issued a status notice pursuant to rule 48.14 of the
Rules
    of Civil Procedure
, R.R.O. 1990, Reg. 194, in October 2008 as the matter
    had not been set down for trial within two years of the filing of a defence.
    After several adjournments, a status hearing was finally held in January 2010 and
    a timetable was agreed-upon requiring discoveries be completed and the action be
    set down for trial by June 2011. The plaintiff failed to take the steps within
    the time limits required by the timetable and, at a status hearing held in
    September 2011, the presiding judge dismissed the action for delay.

[3]

The plaintiff appeals that order. For the following reasons, I would
    dismiss the appeal.

THE PLAINTIFFS CLAIM

[4]

The plaintiff purchased a commercial property from 6274013 Canada
    Limited (627) in June 2005. The plaintiff commenced this action in September
    2006 alleging that 627 breached its contractual obligation to provide a 600
    ampere electrical service and that the defendants 627, its officer Rob Kumer,
    and the agents CB Richard Ellis Ltd., John Lafontaine, Karen Pickernell and
    Carl Lavoie misrepresented that the property had a 600 ampere service. The
    plaintiff also alleged that the defendant William Neilson Ltd. (Neilson), the
    lessee of the property from 1994 to 2005, had breached its lease agreement with
    the prior owner before its lease terminated in September 2005. The plaintiff
    subsequently moved successfully to join the defendants Toronto Hydro-Electric
    System Ltd. and Toronto Hydro Energy Services Inc. (Toronto Hydro), alleging
    that they negligently damaged the electrical service at the property.

RULE 48.14

[5]

Where an action has not been placed on the trial list within two years
    of the defence being filed, the registrar issues a status notice indicating that
    the action will be dismissed for delay unless the matter is set down for trial
    within 90 days of the notice: rule 48.14(1). A party may request a status
    hearing, held before a judge or case management master (rule 48.14(8)), which
    will be held in writing where the party files an agreed timetable for the
    necessary steps to be completed to ensure that the matter is set down for trial
    within 12 months (rule 48.14(10)). If no such timetable is filed a status
    hearing is held pursuant to rule 48.14(12).

[6]

Rule 48.14(13) provides:

48.14(13)  At the status hearing, the
    plaintiff shall show cause why the action should not be dismissed for delay
    and,

(a) if the presiding judge or case management
    master is satisfied that the action should proceed, the judge or case
    management master may,

(i) set time periods for
    the completion of the remaining steps necessary to have the action placed on or
    restored to a trial list and order that it be placed on or restored to a trial
    list within a specified time,

(ii) adjourn the status
    hearing to a specified date on such terms as are just, or

(iii) if the action is
    an action to which Rule 77 may apply under rule 77.02, assign the action for
    case management under that Rule, subject to the direction of the regional
    senior judge,

(iv) make such other
    order as is just; or

(b) if the presiding judge or case management
    master is not satisfied that the action should proceed, the judge or case
    management master may dismiss the action for delay.

THE CHRONOLOGY OF THIS ACTION

[7]

The statement of claim was issued on September 6, 2006. 627 and Neilson delivered
    their statements of defence on October 19, 2006 and November 15, 2006
    respectively. The plaintiff amended its statement of claim on January 25, 2007,
    and 627 and Neilson served amended statements of defence in February and March
    2007. The plaintiff took no steps to move the action beyond the pleading stage.
    A status notice was issued on October 31, 2008, two years after the
    commencement of the action. At the plaintiffs request, a Notice of Status
    Hearing for December 9, 2008 was issued. At that point, the plaintiff had still
    taken no steps to move the action beyond the pleading stage. The December 9,
    2008 status hearing was adjourned on consent at the plaintiffs request to
    allow the plaintiff to move to add the Toronto Hydro defendants. That motion
    was heard and decided in May 2009. Status hearings set for January 27, 2009,
    August 25, 2009 and October 27, 2009 were adjourned and a status hearing was
    finally held on January 19, 2010. By that point, three years and four months
    after commencing the action, the plaintiff still had not moved the action
    beyond the pleading stage.

[8]

At this status hearing, the presiding judge approved an agreed timetable
    requiring the completion of pleadings by February 26, 2010 and delivery of
    affidavits of documents by March 19, 2010. The timetable also required the
    parties to agree to a discovery plan by March 19, 2010, or alternatively to
    bring a motion to fix a plan by April 2, 2010. Examinations for discovery were
    to be completed by September 30, 2010, undertakings given at examination for
    discovery completed by November 30, 2010, related discovery motions completed
    by January 2011 and the action set down for trial by June 30, 2011.  If the
    action was not set down by that date, a further status hearing was to be
    conducted on September 13, 2011.

[9]

The plaintiff delivered an amended statement of claim on January 19,
    2010, adding the Toronto Hydro defendants. The defendants filed amended
    statements of defence and related pleadings in February and March 2010. On March
    16, 2010, plaintiffs counsel, without presenting his own discovery plan, asked
    the defendants for their proposed discovery plans. Counsel for 627 responded
    that it would make more sense for the plaintiff to circulate a proposed
    discovery plan. Plaintiffs counsel did not respond to that suggestion and took
    no further steps in the action for the next year and five months.

[10]

Before
    the September 13, 2011 status hearing, counsel for defendants 627 and Kumer
    indicated that they would ask to have the action dismissed for delay. On
    September 1, 2011, plaintiffs counsel served an affidavit of documents and
    proposed a new timetable and discovery plan. The plaintiff also filed affidavit
    evidence in an attempt to meet the defendants request to have the action dismissed
    for delay.

[11]

At
    the September 13, 2011 status hearing, the defendants asked that the action be
    dismissed. The plaintiff relied on the fact that none of the parties had
    complied with the timetable set at the January 19, 2010 status hearing and that
    the attention of the principal and counsel for the plaintiff, who are brothers,
    had been diverted from the action by financial concerns and personal problems including
    the death of their father and brother and elder care for their mother.

THE REASONS OF THE STATUS
    HEARING JUDGE

[12]

The
    status hearing judge reviewed the chronology of the action and the positions of
    the parties. He identified and applied the legal test requiring the plaintiff
    to satisfy the status hearing judge that there is
both
an explanation
    for the delay that justifies the continuation of the action and that there
    would be no prejudice to the defendant in allowing the action to proceed. The
    status hearing judge found that the plaintiff had failed to satisfy that test.
    He observed that although the plaintiff had failed to move the action beyond
    the pleadings, it had been give a lifeline at the January 19, 2010 status
    hearing but had failed to comply with the timetable it agreed to follow at that
    time. The status hearing judge stated [d]espite being given this opportunity,
    the Plaintiff did nothing to move this action along for a further year and a
    half! Other than serving the Hydro Defendants, the Plaintiff simply ignored
    January 19, 2010 Order.

[13]

The
    status hearing judge noted that the defendants had done nothing to move the
    action along but that they reasonably believed, in light of the history of the
    action and the plaintiff's failure to comply with the January 19, 2010 order,
    that the plaintiff was not pursuing the action. The status hearing judge found
    that while the financial and personal issues faced by counsel and the principal
    of the plaintiff evoked sympathy, those personal factors were not enough to
    justify a five year delay in prosecuting the action. In any event, if those
    problems were the reason for not proceeding, the plaintiff should have asked
    for an adjustment to the timetable set in January 2010. The status hearing
    judge concluded that there had been a lack of any real progress in 5 years
    beyond pleadings and a complete disregard of the timetable imposed on January
    19, 2010.

[14]

The
    status hearing judge observed that there was no alleged or demonstrated actual
    prejudice to the defendants. However, he noted that the limitation period for
    the claims had long expired and that adjudication of the claims, especially those
    against Neilson, would involve documents and events potentially going back more
    than 15 years. He found that although no actual prejudice had been
    demonstrated, he had concerns as to whether a fair trial can be held on the
    issues raised in the action. The status hearing judge concluded that the
    action should be dismissed:

There must be finality to claims. The Plaintiff has been given
    numerous chances to proceed with the action. At some point, the court has to
    say the Plaintiff has had enough opportunities to move this action along. The Defendants
    have had to deal with these claims for over 5 years and shouldn't be forced to
    have this claim remain a contingent claim against them.

ISSUES

[15]

The
    overarching issue in this case is whether the order dismissing the action be
    set aside on the ground that the status hearing judge failed to apply the
    correct legal test or committed palpable and overriding errors by
    misapprehending evidence. The appeal raises several specific issues:

1.  Did the status hearing judge commit palpable
    and overriding errors by misapprehending the evidence in relation to the number
    of previous status hearings and the history of the action?

2.  Did the status hearing judge commit
    palpable and overriding errors by finding, without affidavit evidence, that the
    defendants believed that the plaintiff was not pursuing the action?

3.  Did the status hearing judge err in
    dismissing the action for delay without evidence of actual prejudice?

ANALYSIS

(a)

Standard of Review

[16]

It
    is common ground that a decision to dismiss an action for delay at a status
    hearing is discretionary and entitled to deference on appeal. The decision may,
    however, be set aside if made on an erroneous legal principle or if infected by
    a palpable and overriding error of fact.

(b)

Delay and Fairness in Civil Litigation

[17]

The
    civil justice system aims to resolve disputes fairly, on the merits and in a timely
    and efficient manner. The
Rules of Civil Procedure
provide that the
    rules are to be liberally construed to secure the just, most expeditious and
    least expensive determination of every civil proceeding on its merits: rule
    1.04(1).

[18]

Achieving
    that goal in cases involving dismissal for delay requires a careful balance of
    two fundamental principles. The first is that civil actions should, if
    possible, be decided on their merits and procedural rules should be interpreted
    accordingly. The second is that the procedural rules that aim to resolve
    disputes in a timely and efficient manner can only achieve their goal if they
    are respected and enforced.

[19]

Time
    lines prescribed by the
Rules of Civil Procedure
or imposed by
    judicial orders should be complied with. Failure to enforce rules and orders
    undermines public confidence in the capacity of the justice system to process
    disputes fairly and efficiently. On the other hand, procedural rules are the
    servants of justice not its master. We must allow some latitude for unexpected
    and unusual contingencies that make it difficult or impossible for a party to
    comply. We should strive to avoid a purely formalistic and mechanical
    application of time lines that would penalize parties for technical
    non-compliance and frustrate the fundamental goal of resolving disputes on
    their merits. As Laskin J.A. stated in
Finlay v. Paassen
, 2010 ONCA
    204, 101 O.R. (3d) 390, at para. 14: the Rules and procedural orders are
    construed in a way that advances the interests of justice, and ordinarily
    permits the parties to get to the real merits of their dispute.

[20]

The
    challenge posed in cases involving dismissal for delay is to find the right
    balance between, on the one hand, the need to ensure that the rules are
    enforced to ensure timely and efficient justice and, on the other, the need to
    ensure sufficient flexibility to allow parties able to provide a reasonable explanation
    for failing to comply with the rules to have their disputes decided on the
    merits.

[21]

With
    these general principles as background, I will now consider the specific
    grounds of appeal advanced by the plaintiff.

Issue 1. Number of Status
    Hearings and History of the Action

[22]

The
    plaintiff submits that the status hearing judge committed palpable and
    overriding errors by misapprehending the evidence in relation to the number of
    previous status hearings and the history of the action.

[23]

The
    status hearing judge stated that the matter had been before this court a
    number of times prior to this date  one Status Notice and
5 Status Hearings
 and that he was entertaining the
6
th
Status Hearing
 (emphasis in original).
    In fact, there had only been one prior status hearing and the other four scheduled
    hearings had all been adjourned. The plaintiff argues that it was an error to
    take into account the adjournments of the first status hearing and related
    delay as no timetable had yet been set and that period had been dealt with by
    the judge who conducted the January 2010 status hearing.

[24]

I
    am unable to accept this submission. Although the status hearing judge
    described the hearing he was conducting as the 6
th
Status Hearing,
    it is clear from his review of the chronology of the action that he was under
    no misapprehension as to the number of status hearings that had actually been
    held.

[25]

I
    completely disagree with the contention that the plaintiff was somehow absolved
    for all prior delay by the order made at the January 2010 status hearing. That
    order, made despite over three years of delay, was properly described by the
    September 2011 status hearing judge as a lifeline that allowed the plaintiff
    to proceed on the basis of the timetable ordered. The plaintiff ignored the
    lifeline it had been given and failed to respect the timetable that had been
    set. Without repentance there can be no absolution. The plaintiff did not
    emerge from the January 2010 status hearing with a clean slate and it was open
    to the status hearing judge to consider the entire history of delay.

[26]

It
    is also submitted that the status hearing judge misapprehended the impact of
    the motion to add Toronto Hydro. I disagree. That motion was heard and decided
    in May 2009 and the amended endorsement issued in November 2009 was a minor
    correction that did not affect the substance of the matter. The plaintiffs
    failure to prosecute this action with the required degree of diligence cannot
    be explained by the motion to add Toronto Hydro.

Issue 2.
    Conduct of the Defendants

[27]

The
    plaintiff submits that the status hearing judge erred by finding that the
    defendants believed that the plaintiff was not pursuing the action as there was
    no affidavit evidence to that effect, only the oral submission of counsel at
    the hearing. It certainly would have been preferable to have had affidavit
    evidence on the point. However, in my view, in the circumstances of this case,
    it was open to the status hearing judge to infer from the dilatory action of
    the plaintiff that there was a factual foundation for counsels submission.
    After five years of inaction on the part of the plaintiff, it was virtually
    inevitable that the defendants would assume that the claim was not being
    pursued. At the very least, without some action on the part of the plaintiff,
    the defendants would be disinclined to spend any time or money in preparing
    affidavits of documents or taking any other steps in anticipation of a trial
    that as time went by, became increasingly unlikely to happen.

[28]

The
    focus of the inquiry on a rule 48.14 status hearing is the conduct of the
    plaintiff and, as this court held in
Wellwood v. Ontario Provincial Police
,
    2010 ONCA 386, 102 O.R. (3d) 555, at para. 48, the party who commences the
    proceeding bears primary responsibility for its progress and therefore the
    initiating litigant generally suffers the consequences of a dilatory regard for
    the pace of litigation. See also
Hamilton (City) v. Svedas Koyanagi
    Architects Inc.
, 2010 ONCA 887, 104 O.R. (3d) 689, at paras. 27-28.

[29]

I
    agree that the conduct of a defendant may be relevant, especially where a plaintiff
    who tries to move an action along is faced with some resistance from the
    defendant, or tactics that are not consistent with a willingness to see a
    relatively straightforward case proceed expeditiously: see
Bolohan v. Hull
,
    2012 ONCA 121, [2012] O.J. No. 749, at para. 17.

[30]

In
    this case, however, the defendants did nothing to resist any attempt by the
    plaintiff to advance the action. They cannot be accused of lying in the weeds
    and hoping to gain a tactical advantage. Failing any initiative on the part of
    the plaintiff, to require the defendants to spend time and money to prepare for
    a case that, from all appearances, was dead on the vine would, in my view, be
    to impose an unnecessary and unreasonable burden.

Issue 3. Prejudice

[31]

The
    defendants did not allege that if the action were allowed to proceed, they
    would face actual prejudice of the kind caused by, for example, the death of
    an important witness, the inability to locate a witness, the inability of a
    witness to recall [important] facts or the loss of important evidence,
    including documents: Paul M. Perell & John W. Morden,
The Law of Civil
    Procedure in Ontario
(Markham: LexisNexis, 2010), at p. 423.

[32]

Actual
    prejudice or the lack thereof is an important factor to consider in cases of
    dismissal for delay:
Hamilton
, at para. 33. However, it is certainly
    not the law that an action cannot be dismissed for delay at a rule 48.14 status
    hearing without proof of actual prejudice. The status hearing judge applied the
    test as stated by this court in
Khan v. Sun Life Assurance
, 2011 ONCA
    650, [2011] O.J. No. 4590, at para. 1: the appellant [plaintiff] 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
    [defendant] would suffer no non-compensable prejudice. The test is conjunctive,
    not disjunctive. Even if the plaintiff can provide a satisfactory explanation
    for the delay, the action will be dismissed if there would be prejudice to the
    defendant.  And if the plaintiff is not able to provide a satisfactory
    explanation for the delay, it is still open to the judge to dismiss the action,
    even if there is no proof of actual prejudice to the defendant.

[33]

As
    I have noted, the goal of the civil justice system is ensure the just, most
    expeditious and least expensive determination of every civil proceeding on its
    merits. Consideration of actual prejudice focuses on the just determination of
    the dispute on its merits. The absence of actual prejudice does not
    automatically or inevitably trump the values of timeliness and efficiency. At
    some point, a party who has failed to respect the rules designed to ensure
    timely and efficient justice loses the right to have its dispute decided on the
    merits. If that were not the case, the rules and the time lines they impose
    would cease to have any meaning and any hope of ensuring timely and efficient
    justice would be seriously jeopardized.

[34]

Modern
    civil procedure recognizes the need to deal with unexplained delay and, through
    rules such as rule 48.14, provides for an active judicial role to promote the
    timely resolution of disputes, to discourage delay in civil litigation and to
    give the courts a significant role in reducing delays: Todd Archibald, Gordon Killeen
    & James C. Morton,
Ontario Superior Court Practice
(Markham:
    LexisNexis Canada, 2011), at p. 1205. As judgments of this court and the
    Superior Court recognize, if an action could not be dismissed for delay unless
    there was proof of actual prejudice, time lines would become meaningless. Where
    a party fails to prosecute an action in a timely fashion, the court is entitled
    to exercise the powers conferred by the rules to dismiss actions absent an
    adequate explanation for the delay:
Riggitano v. Standard Life Assurance
    Co.
, [2009] O.J. No. 1997 (S.C.), at para. 45, affd 2010 ONCA 70, [2010]
    O.J. No. 292.

[35]

It
    is surely not too much to expect a party to either set a matter down for trial
    within two years of the close of pleadings or be able to offer a reasonable
    explanation for why that is not possible to do so. In this case, the plaintiff
    had no explanation for an initial lengthy period of inaction. Despite that
    unexplained delay, the plaintiff was permitted to proceed with the action, but
    again failed to take any meaningful step towards trial for another period of almost
    eighteen months. In these circumstances, the status hearing judge did not err
    by concluding that the time for any further indulgence had passed.

[36]

The
    balance to be struck in the circumstance of a case such as this was very well
    put by Glithero J. in
Riggitano
, at para. 45, a decision affirmed by
    this court:

It is never pleasant to dismiss a plaintiff's action for delay.
    Nevertheless, Rule 48.14 clearly contemplates that two years following the
    filing of a statement of defence is viewed as being ample time to complete
    remaining steps and have a matter set down for trial, absent some satisfactory
    explanation. Where a contest arises, sub-rule (8) squarely puts the onus on [the]
    plaintiff to show cause why the action should not be dismissed for delay. Here
    more than five years, and hence more than twice the normal time period
    contemplated by the rule, has gone by and in my assessment the plaintiff has
    done very little to move the matter along. In my opinion, the materials do not
    disclose any satisfactory explanation for the delay.
If the common
    submission, as made here, to the effect that a dismissal would be unfair to the
    plaintiff is permitted to always trump the provision in the rules contemplating
    a reasonably timely procedure for the disposition of actions, then the rule
    would be effectively gutted.
[Emphasis added]

[37]

I
    also agree with and adopt the statement of D.K. Gray J. in
Broniek-Harren
    v. Osborne
, [2008] O.J. No. 1690 (S.C.), at paras. 28-29:

The policy underlying the
Rules of Civil Procedure
is
    twofold: to ensure that cases that are not settled are tried on their merits;
    and to ensure that cases are processed, and heard, in an orderly way. A
    civilized society must ensure that a credible system of justice is in place,
    and the
Rules of Civil Procedure
, made pursuant to the
Courts of
    Justice Act
, reflect the scheme created by the Province for the orderly
    handling of civil cases.

The
Rules
reflect a balance. The litigant does not
    have an untrammelled right to have his or her case heard. In order to be heard,
    a case must be processed in accordance with the
Rules.
By the same
    token, adherence to the
Rules
must not be slavish in all circumstances.
    They are, after all, designed to ensure that cases are heard. Throughout the
Rules
,
    the principle is reflected that strict compliance may be dispensed with where
    the interests of justice require it: see, for example, Rules 1.04(1), 2.01,
    2.03, 3.02, and 26.01. The difficult issue, in any particular case, is to
    determine when non-compliance reaches the point that it can no longer be
    excused.
The Court, and society as a whole, have an interest in ensuring
    that the system remains viable. If the Rules can be ignored with impunity, they
    might as well not exist
. [Emphasis added.]

[38]

See
    also
Sepehr Industrial Mineral Exports Co. v. Alternative Marketing Bridge
    Enterprises Inc.
(2007), 86 O.R. (3d) 550 (S.C.), at para 21, Quinn J:

Legal proceedings are not to be undertaken lightly. Plaintiffs
    have a responsibility to prosecute their actions diligently and in accordance
    with the Rules of Civil Procedure. Our legal system, sagging, as it is, under
    the weight of a heavy caseload, should not lightly tolerate anything short of
    that diligence.

[39]

These
    cases quite properly reflect and reinforce the strong public interest in
    promoting the timely resolution of disputes. The notion that justice delayed
    is justice denied reaches back to the mists of time.... For centuries, those
    working with our legal system have recognized that unnecessary delay strikes
    against its core values and have done everything within their powers to combat
    it:
Marché D'Alimentation Denis Thériault Ltée v. Giant Tiger Stores Ltd.
,
    2007 ONCA 695,
87 O.R. (3d)
    660
, at para. 25, quoting
Blencoe v. British Columbia (Human
    Rights Commission),
2000 SCC 44,
[2000] 2
    S.C.R. 307
, at para. 146. Excusing significant delay risks
    undermining public confidence in the administration of justice:
Marché
,

at

para. 32. The time lines the rules impose are relatively
    generous and there is a heavy price to be paid when they are not respected.

[40]

As
    Professor Stephen G.A. Pitel observed in Revival After Dismissal for Delay:
Marche
    DAlimentation Denis Theriault Ltee v. Giant Tiger Stores Ltd
. (2008) 34
    Adv. Q. 240: our system of civil justice is under almost constant scrutiny.
    One of the most fundamental concerns is that the process is far too complex,
    too expensive and takes too long. In his review of the civil justice system the
    Honourable Coulter Osborne, Q.C. observed that the related issues of cost and
    delay continue to be cited nationally and provincially as formidable barriers
    that prevent average Canadians from accessing the civil justice system: Civil
    Justice Reform Project,
Summary of Findings & Recommendations
(Toronto: Ontario Ministry of the Attorney General, 2007), at p. 1. A system
    that tolerates unexplained delay will not attract public confidence.

[41]

The
    civil justice regime should deliver timely justice to both plaintiffs and defendants.
    Failure to enforce time lines frustrates the legitimate expectations of both
    those who claim and those who defend. Unless the basic ground rules of
    litigation  including time requirements  are enforced in a principled way,
    counsel cannot provide reliable advice and clients cannot plan their affairs in
    an orderly manner.

[42]

If
    flexibility is permitted to descend into toleration of laxness, fairness itself
    will be frustrated. As the status hearing judge recognized, even if there is no
    actual prejudice, allowing stale claims to proceed will often be unfair to the
    litigants. Disputes are more likely to be resolved fairly if they are resolved
    in a timely fashion and accordingly, the enforcement of time lines helps
    achieve the ultimate goal of fair resolution of disputes. Stale claims are more
    difficult to defend.  As this court stated in
Wellwood,
at para. 72:
    as the memories of witnesses fade over time, the passage of an inordinate
    length of time after a cause of action arises or after an applicable limitation
    period expires gives rise to trial fairness concerns. In my view, this is so
    even when timely notice of the claim has been provided.

[43]

The
    allegations made in the statement of claim in this case reach back many years,
    to a period earlier than the date of sale in 2005. In my view, it was open to
    the status hearing judge to find that as time went on, it would be more and
    more difficult to defend a claim that related to events that had transpired at
    least six years ago and that would be even more remote by the time a trial
    could be held. The more time that passes, the more difficult it is to defend
    the case. Memories fade and even if documents are not lost, their significance
    becomes shrouded.

[44]

Another
    harm that flows from delay, properly relied on by the status hearing judge, is
    that it leaves the litigant with the claim hanging over its head in a kind of
    perpetual limbo. Fairness requires allowing parties to plan their lives on the
    assumption that, barring exceptional or unusual circumstances, litigation time lines
    will be enforced. Litigants are entitled to have their disputes resolved
    quickly so that they can get on with their lives and delay multiplies costs
    and breeds frustration and unfairness":
Marché
, at para. 25; see
    also
Hamilton
, at para 21. In my view, it was entirely proper for the
    status hearing judge to weigh in the balance the fact that the defendants would
    inevitably suffer some harm if, after more than five years and no significant
    movement by the plaintiff, they were forced to continue to face this contingent
    claim.

CONCLUSION

[45]

In
    my view, the reasons of the status hearing judge reveal no errors of fact or
    law that would justify this courts intervention. The discretionary decision of
    the status hearing judge attracts deference in this court. As his decision is
    consistent with the applicable legal principles I have identified and reveals
    no reversible errors of fact, I would dismiss the appeal with costs to 627 and
    Neilson fixed at $7,500 each, inclusive of disbursements and taxes.

Released:
RJS Aug. 21, 2012                     Robert
    J. Sharpe J.A.

I
    agree John Laskin J.A.

I
    agree G.J. Epstein J.A.


