



COURT OF APPEAL FOR ONTARIO

CITATION: Khan v. Metroland
    Printing, Publishing & Distributing Ltd., 2013 ONCA 571

DATE: 20130920

DOCKET: C57137

Feldman, Tulloch and Lauwers JJ.A.

BETWEEN

Colleen Khan,
Ray Khan
,
    Shelly Khan,
James Khan
and
Sonny
    Khan

Applicants (Appellants)

and

Metroland Printing, Publishing & Distributing
    Ltd., Ian Proudfoot, Brenda Larson, Debora Kelly, David Teetzel, Christopher
    Douris and William F. Bell

Respondents (Respondents)

Philip P. Healey and Mark van Zandvoort, for the
    appellants

Ryder Gilliland, for the respondents Metroland Printing,
    Publishing & Distributing Ltd., Ian Proudfoot, Brenda Larson, Debora Kelly,
    David Teetzel and Christopher Douris

Charles M. Loopstra, Q.C., for the respondent Estate of William
    F. Bell

Heard and released orally: September 16, 2013

On appeal from the judgment of Justice
Ian V.B.
Nordheimer of the Superior Court of Justice,
    dated February 11, 2013, reported at 2013 ONSC 944.

ENDORSEMENT

[1]

The appellants appeal the orders of Nordheimer J. dated February 11,
    2013 dismissing the appellants action for delay.

[2]

The action arose out of statements published by the respondent Metroland
    during the 1997 municipal election.  Colleen Khan (now deceased), was a mayoral
    candidate for Richmond Hill.  One of the respondents, William Bell (now
    deceased), was the successful candidate in the same mayoral election.  The
    appellants commenced an action in January 1998 alleging that defamatory statements,
    including statements allegedly made by William Bell, were published in
    Metrolands newspaper.  The respondents delivered a Statement of Defence in
    February 1998. The respondent Bell also delivered a counter-claim alleging
    libel and slander contained in Colleen Khans campaign literature.

[3]

The appellants filed Statements of Defence in March 1998.  The
    examination for discovery of the respondent Bell took place in October 1998. 
    One other examination for discovery also took place at that time.  No other
    examinations have since occurred.

[4]

Nordheimer J. was appointed as case management judge in June 2001 and
    thereafter dealt with the respondents motion to dismiss on the basis of
    failure of one of the appellants to pay prior costs.  In July 2001, Nordheimer
    J.  made an order requiring the appellants, with the exception of one, to post
    security for costs.  The Divisional Court allowed the appeal and set aside the
    costs order.  This Court dismissed the respondents appeal in May 2005.

[5]

Since May 2005, no further steps in this action have been taken by the
    parties, other than the respondents motion to dismiss for delay.

[6]

In responding to the motion Nordheimer J. made the following comments at
    paras. 33, 34, 36 and 37 of his decision.  He said this:

In the end result, more than fifteen years have passed since
    the alleged libel took place.  Fourteen years have passed since the action was
    commenced.  Outside of some discovery steps taken in 1998, nothing has been
    done by the plaintiffs to bring this action to trial.  The plaintiffs make the
    bald allegation in their responding affidavit that they attempted to set this
    matter down for trial but were unable to with nothing more.  In addition, now
    faced with this motion, the plaintiffs say that they have conducted what
    discoveries they wish to conduct and want to proceed to trial.  If that is
    true, given that these discoveries were conducted in 1998, it poses the obvious
    question why the action was not set down for trial at any point in the last fourteen
    years unless, of course, this realization has only occurred very recently and
    solely in response to this motion.

The fact is that there has been inordinate delay in this
    proceeding and that delay lies almost entirely at the feet of the plaintiffs
    and their lawyers.  There is a presumption of prejudice that rises from this
    delay that is reinforced by evidence of actual prejudice through the loss of
    witnesses.

In the end result the situation here falls squarely within the
    principle enunciated in
1196158 Ontario Inc. v. 6274013 Canada Ltd.
,
    (2012), 112 O.R. (3d) 67 (C.A.) and, in particular, where Sharpe J.A. said at
    para. 33:

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 timelines they imposed would cease to have any meaning
    and any hope of ensuring timely and efficient justice would be seriously
    jeopardized.

If the requirement established by r.24.01(1) is not applied in
    situations such as is presented here, is difficult to foresee the type of case
    where realistically it would ever be applied.

[7]

We see no palpable or overriding error in the conclusions of Nordheimer
    J. We therefore dismiss the appeal, with costs to the respondent Bell in the
    amount of $5000 all inclusive, and to the Metroland respondents in the amount
    of $2500 all inclusive.

K. Feldman J.A.

M. Tulloch J.A.

P. Lauwers J.A.


