



COURT OF APPEAL FOR ONTARIO

CITATION: 806480 Ontario Limited v. RNG Equipment Inc., 2014
    ONCA 488

DATE: 20140624

DOCKET: C58077

Laskin, Pepall and Pardu JJ.A.

BETWEEN

806480 Ontario Limited cob as Kens Sunoco
    Service

Plaintiff (Appellant)

and

RNG Equipment Inc. and
ZCL
    Composites Inc
.

Defendants (
Respondent
)

John H. McNair, for the appellant

Benjamin G. Blay, for the respondent

Heard: May 9, 2014

On appeal from the order of Justice Andrew J. Goodman of
    the Superior Court of Justice, dated November 27, 2013.

ENDORSEMENT

[1]

On May 9, 2013 the court allowed the appeal with reasons to follow. This
    was an action for damages arising out of the failure of a fuel storage tank. The
    registrar dismissed the action for delay, and the appellant appealed from the
    refusal of the motion judge to restore the action.

[2]

The following chronology was established by the record:

1.

Notice
    of action issued May 7, 2010

2.

Statement
    of Claim issued June 4, 2010

3.

Notice
    of Intent to Defend filed August 25, 2010

4.

Statement
    of Defence issued January 13, 2011

5.

Amended
    Statement of Defence issued March 24, 2011

6.

Defendants
    motion for summary judgment dismissing action because of expiry of limitation
    period, served July 18 2011

7.

Summary
    judgment motion dismissed December 5, 2011

8.

Costs
    decision on summary judgment motion January 17, 2012

9.

Status
    notice issued by registrar September 13, 2012

10.

Registrars
    order dismissing action for delay December 4, 2012

[3]

The status notice issued in this matter was made pursuant to Rule 48.14
    and indicated that more than two years had passed since a defence in the action
    was filed. Rule 48.14(1) provides that if an action has not been listed for
    trial or terminated within two years after the first defence is filed, the registrar
    shall serve a status notice on the parties. For the purposes of this Rule,
    defence is defined in Rule 48.14 (0.1) as including a notice of intent to
    defend. The status notice provided that the action would be dismissed unless it
    was set down or otherwise terminated within 90 days of service of the status
    notice. The registrars order dismissing the action for delay was made before
    this 90 day period had elapsed. Both parties now agree that the registrar had
    no jurisdiction to dismiss the action, and the registrars order dismissing the
    action must be set aside.

[4]

Counsel for the appellant argued that the motion judge erred in his
    application of the factors set out in
Reid v. Dow Corning Corp.
(2001)
    11 C.P.C. (5
th
) 80 in refusing to set aside the dismissal. The motion
    judge considered that the respondent was prejudiced because it lost an
    opportunity to conduct an examination of the tank during the first months of
    the litigation. The tank in question here was removed and discarded five months
    after the Statement of Claim was delivered and two months before the respondent
    delivered its Statement of Defence. This is not prejudice arising from steps
    taken following dismissal, or which would result from restoration of the action
    following the registrars dismissal. In our view, the motion judge erred in
    considering this as prejudice in relation to the issue of whether to set aside
    the registrars dismissal.

[5]

In any event the registrars order dismissing the action must be set
    aside as of right. The orders of the motion judge of November 27, 2013 and
    January 2, 2014 are set aside, and the registrars order of December 4, 2012
    dismissing the action is set aside. Costs of the appeal are awarded to the
    appellant in the agreed sum of $8,000.00.

John Laskin J.A.

S.E. Pepall J.A.

G. Pardu J.A.


