



COURT OF APPEAL FOR ONTARIO

CITATION: McLean v. Boettcher, 2016 ONCA 14

DATE: 20160108

DOCKET: C60657

Juriansz, Hourigan and Brown JJ.A.

BETWEEN

Theresa McLean and Thomas McLean

Plaintiffs (Appellants)

and

Tracy Boettcher, Elizabeth Boettcher, John
    Boettcher, William Taggart, Taggart & Carroll LLP and the Corporation of
    the Township of Cramahe

Defendants (Respondents)

William G. Scott, for the appellants

Suzanne E. Hunt, for the respondent The Corporation of
    the Township of Cramahe

Tanisha G. Tulloch, for the respondents William Taggart
    and Taggart & Carroll LLP

No one appearing for the respondents Tracy Boettcher,
    Elizabeth Boettcher and John Boettcher

Heard and released orally: January 5, 2016

On appeal from the order of Justice Bradley W. Miller of
    the Superior Court of Justice, dated June 4, 2015.

ENDORSEMENT

[1]

The appellants appeal the order of the motion judge dismissing their
    motion to set aside the registrars dismissal of their action for delay.

[2]

The action relates to an agreement dated February 24, 2006 to purchase residential
    property. The appellants, who were the purchasers, commenced an action on June
    2, 2008 against the defendants. In January 2010, the parties mutually agreed to
    postpone the progress of the litigation to allow the appellants to investigate
    an alternative solution to the dispute.

[3]

On October 4, 2010, the registrar gave notice the action would be
    dismissed for delay within 90 days unless the action was set down for trial. At
    the status hearing on December 17, 2010, Rady J. ordered a timetable which
    required the trial record to be filed by October 31, 2011. The trial record was
    not filed by that date. The registrar dismissed the action on November 15,
    2011.

[4]

The motion to set aside the registrars dismissal was served March 22,
    2012. However, there were a series of adjournments with the consent of the
    defendants, many to allow the appellants to obtain an engineering report that
    might have resolved the dispute in an alternative forum.  On May 21, 2013, the
    court adjourned the motion to July 29, 2013, making the matter peremptory
    absent evidence of extraordinary circumstances. On July 29, 2013, the matter
    came on before Leitch J. The appellants were not prepared to proceed and sought
    another adjournment. Leitch J., upon being advised that the reason for the
    continued adjournments was to allow the appellants to pursue the alternative
    resolution, dismissed the motion in order to respect the court ordered
    timetable, but gave leave to the appellants to bring a new motion.

[5]

After Leitch J.s order, as the motion judge observed, astonishingly,
    the [appellants] did not take any further steps in the litigation for 14
    months.

[6]

In his analysis, the motion judge applied the correct test, carefully
    considering the four factors set out in
Reid v. Dow Corning Corp.


[7]

He weighed the fact that the source of part of the delay was the entirely
    laudable effort to pursue a cost-effective solution outside of the courts, but
    found this did not excuse the failure to move the action forward. He considered
    that the 14 months of delay after the order of Leitch J., due to a mixture of
    tactical choice and neglect, was fatal to the motion. He also found there was
    presumed prejudice and actual prejudice to the defendants that had not been
    rebutted. He dismissed the motion

[8]

On appeal, the appellants submit the motion judge erred in finding the
    death of a witness resulted in actual prejudice, arguing that even if the court
    ordered timetable had been met, the trial could not have been held before the
    witness' death. Be that as it may, we are satisfied there was ample other
    evidence upon which the trial judge could find the actual prejudice that had
    not been rebutted.

[9]

The appellants also submitted that the unexplained 14 month delay in
    bringing the second motion to set aside was much briefer than the 5 year delay
    in
Marché d'Alimentation Denis Thériault Ltée v. Giant Tiger Stores Ltd.
(2007),
    2007 ONCA 695, which the motion judge relied upon. They argued the motion judge
    erred by finding the 14 month delay was fatal to the motion.

[10]

We
    reject the argument. The motion judge recognized the
Reid
factors do not
    prescribe a formula, but provide a structured approach to reconciling the
    principle that civil actions should be decided on their merits, with the
    principles that civil actions should be resolved within a reasonable timeframe
    and that the public interest is served by promoting the timely resolution of
    disputes. It was for the motion judge to balance these competing principles and
    weigh the 14 month delay in the context of the entire delay and all the
    circumstances. We agree with the result the motion judge reached.

[11]

In
    conclusion, we have not been persuaded that the motion judge made any error
    that would affect the result. We agree with his observation that having been
    granted every possible indulgence from the court, [the appellants] did not
    fulfill their obligation to move the litigation along.

[12]

The
    appeal is dismissed.

[13]

The
    Taggart respondents costs are fixed in the amount of $10,000 all inclusive,
    and the Township of Cramahe respondents costs are fixed in the amount of
    $2,500 all inclusive.

R.G.
    Juriansz J.A.

C.W.
    Hourigan J.A.

David
    Brown J.A.


