



COURT OF APPEAL FOR ONTARIO

CITATION: Diemer (Cornacle Cattle Co.) v. London Farms Ltd.,
    2016 ONCA 946

DATE: 20161215

DOCKET: C62198

Cronk, Juriansz and Roberts JJ.A.

BETWEEN

Daniel
    A. Diemer

carrying on business as
    Cornacre Cattle Co.

Plaintiff (Appellant)

and

London Dairy Farms Ltd.

Defendant (Respondent)

Steven Pickard, for the appellant

Dan MacKeigan, for the respondent

Heard: December 12, 2016

On appeal from the order of Justice George W. King of the
    Superior Court of Justice, dated April 26, 2016.

ENDORSEMENT

[1]

The appellant appeals from the dismissal of his
    motion for an order to allow for the late filing of his statement of claim. The
    appellants notice of action was issued on July 22, 2015, but the appellant
    failed to file a statement of claim within the requisite 30-day deadline under
    r. 14.03(3) of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194.

[2]

The appellant alleges that the respondent sold
    him defective dairy cows.  In response to the appellants complaint, on
    September 26, 2013, the respondent provided two new dairy cows. The respondent
    alleges that on that day, the parties concluded a settlement agreement and the
    appellant provided the respondent with a release. The appellant sold his farm
    and cows on October 4, 2013, went into receivership on October 23, 2013, and
    was discharged on May 26, 2015. There is no evidence that the appellant sought
    leave from the receiver or the court to commence a claim. It is not disputed
    that there was no further communication between the appellant and the respondent
    until November 11, 2015 when the appellant served its notice of motion for
    leave to file his statement of claim.

[3]

The appellant concedes that the motion judge
    applied the correct test and considered the relevant factors, as set out in
Nugent
    v. Crook
, 1969 CarswellOnt 951, 40 O.R. (2d) 110 (C.A.), at para. 2. However,
    he submits that the motion judge erred in rejecting the appellants explanation
    for the delay in filing his statement of claim and in finding that there was
    prejudice to the respondent as a result of the delay.

[4]

We do not accept these submissions.

[5]

First, it was open to the motion judge to find
    that the appellants explanation for the failure to file within the requisite
    time was inadequate because it lacked the necessary detail to explain the delay.
    Specifically, the motion judge noted the absence of the following particulars:

The plaintiffs request for an
    extension is made without: (i) any suggestion of inadvertence; (ii) a statement
    as to when the plaintiff requested documents; (iii) information as to when the
    plaintiff received documents; and (iv) and explanation why after the plaintiff
    filed a notice of action to protect against an upcoming limitation period, it
    failed for months to file a statement of claim.

[6]

Further, we see no error in the motion judges
    conclusion that there was prejudice to the respondent because, at the very
    least, the respondent had lost the opportunity to investigate the appellants
    claim, assess the validity of the appellants assertions regarding the health
    and productivity of the cows, and evaluate the reasonableness of the steps
    taken by the appellant in purported mitigation of his damages.

[7]

While it is common ground that the appellants
    action was commenced within the relevant two-year limitation period, his
    failure to file the statement of claim on a timely basis brought his action to
    an end, absent the respondents consent or leave of the court.  The expiry of
    the relevant two-year limitation period, on September 26, 2015 (two years after
    the appellant advanced a complaint and two new cows were provided to him) or on
    October 4, 2015 (two years after his damages crystallized on the sale of his
    farm and cows), gave rise to a rebuttable presumption of prejudice to the
    respondent. The appellant did not file any evidence to rebut this presumption
    nor does the recitation of the relevant events serve to do so. The onus is not
    on the respondent to put forward positive evidence that it was prejudiced:
Nugent
,
    at para. 3.

[8]

As this court also noted in
Nugent
, at
    para. 3: It is the plaintiff who is seeking the indulgence and it is for the
    plaintiff to establish proper grounds for the exercise of the discretion of the
    court. The motion judge determined that the appellant failed to do so in this
    case. We see no basis to interfere with his discretionary decision.

[9]

For these reasons, the appeal is dismissed.

[10]

The respondent is entitled to its partial
    indemnity costs of the appeal, in the amount of $7,000.00, inclusive of disbursements
    and all applicable taxes.

E.A.
    Cronk J.A.

R.G.
    Juriansz J.A.

L.B.
    Roberts J.A.


