



COURT OF APPEAL FOR ONTARIO

CITATION: MacDonald Estate v. Highland Fuels
    Dundalk Ltd., 2014 ONCA 67

DATE:  20140124

DOCKET: C57422

Rosenberg, Cronk and Tulloch JJ.A.

BETWEEN

Scott Richardson
    and Gerry Richardson

Plaintiffs

The Estate of Bonnie Irene MacDonald

by her Estate Trustee Collene MacDonald, Leif Smith

Defendants

Plaintiffs by
    Cross-claim

(Appellants)

and

Highland Fuels Dundalk Ltd.

Defendant

Defendant by
    Cross-claim

(Respondent)

Daniel Zacks, for the appellants

David A. Zuber and James Tausendfreund, for the
    respondent

Heard: January 22, 2014

On appeal from the order of Justice D.L. Edwards of the
    Superior Court of Justice, dated August 12, 2013.

APPEAL BOOK ENDORSEMENT


[1]

The appellants central contention on this appeal is that, by consenting
    to a June 2012 order requiring the appellants to set the action down for trial
    by a set date, the respondent implicitly represented that it was ready for
    trial.  We reject this contention.

[2]

By consenting to the order at issue, the respondent did no more than
    agree to a scheduling requirement that the appellants, who had delayed for
    years in advancing the progress of their claim against the respondent, set the
    matter down for trial by a particular date, failing which the respondent could
    move to dismiss the claim for delay.  In so doing, the respondent made no
    representation regarding its own trial readiness or with respect to the
    potential for a fair trial, given the appellants considerable delay.  Indeed,
    the order at issue is not an order setting the matter down for trial.  Nor was
    the appellants claim against the respondent ever, in fact, set down for trial
    by any of the parties, let alone being placed on the trial list.

[3]

In these circumstances, we agree with the respondent that those aspects
    of Rule 48 of the
Rules of Civil Procedure
relied upon by the
    appellants were simply not engaged.

[4]

We also agree with the motion judge that, by consenting to the June 2012
    scheduling order, the respondent did not waive its right to later complain of
    prejudice occasioned by the appellants delay prior to the date of the order. 
    The order does not say so.  Nor is there any evidence that the parties so
    agreed as a condition of the order.  Indeed, on its face, the order
    contemplated, without limitation, that if the appellants failed to set the
    action down for trial by November 30, 2012, the respondent would be entitled to
    move to dismiss the action for delay.  Nothing in the language of the order,
    expressly or by implication, narrowed the scope of the prejudice by reason of
    delay argument that might then be advanced by the respondent in these
    circumstances.

[5]

We note that the appellants involved counsel (not counsel on this
    appeal) effectively acknowledged as much on his cross-examination by conceding
    that the respondent did not waive its right to complain of the appellants
    pre-June 2012 delay by reason of consenting to the June 2012 order.

[6]

For the reasons given, the appeal is dismissed.  The respondent is
    entitled to its costs of the appeal, fixed, as agreed by the parties, in the
    total amount of $7,500, inclusive of disbursements and all applicable taxes.


