



COURT OF APPEAL FOR ONTARIO

CITATION:
North
    Toronto Chinese Alliance Church v. Gartner Lee Limited,

2012 ONCA 251

DATE: 20120420

DOCKET: C54465

MacPherson, Lang, and Epstein JJ.A.

BETWEEN

North Toronto Chinese Alliance Church

Plaintiff (Appellant)

and

Gartner Lee Limited

Defendant (Respondent)

Rod Byrnes, for the appellant

Gosia Bawolska and Yu Mai, for the respondent

Heard: April 2, 2012

On appeal from the order of Justice Peter Lauwers of the
    Superior Court of Justice, dated September 9, 2011.

ENDORSEMENT

[1]

The plaintiff/appellant appeals from the order of Lauwers J. of the
    Superior Court of Justice, dated September 9, 2011, dismissing the proceeding for
    delay on motion by the defendant/respondent.  The action is for damages arising
    from the preparation of a hydrological report dated March 17, 1995 by the
    respondent.  The appellants position is that it relied on this report to its
    detriment in deciding to purchase property.

[2]

The following is a brief chronology of relevant events.

[3]

On December 5, 1996, the appellant put the respondent on notice of its
    intention to pursue an action against it.  On July 6, 2001, the statement of
    claim was issued.  On March 28, 2002, the respondent delivered its statement of
    defence and on April 30, 2002, its affidavit of documents.  Counsel for the
    respondent attempted to schedule examinations for discovery in August. 
    However, her letters to counsel for the appellant went largely unanswered. The
    appellant delivered its affidavit of documents on January 8, 2003.  Thereafter,
    the respondent provided its productions to the appellant and served a notice of
    examination for discovery to take place at the end of that month.  A week
    before the scheduled discoveries, counsel for the plaintiff cancelled them. 
    New dates were set for May of 2003.  These dates were moved to June as the
    appellant had not yet provided its productions.  Discoveries finally started in
    June of 2003.  They were set to continue in August once the appellant had
    provided documentation relating to its damages claim. The delay in providing
    this information necessitated the discoveries having to be moved to October. 
    They did not, however, take place then as the appellant had still not provided
    the necessary information.

[4]

Three years later, not having heard anything more from the appellants
    counsel, counsel for the respondent advised that she had instructions to bring
    a motion for an order dismissing the action for delay.  The motion record was
    served on May 3, 2007.  At the request of appellants counsel the motion was
    re-scheduled to be heard on May 24.  At that time Boyko J. adjourned the motion
    to June 21 at which time Boyko J. ordered the appellant to answer undertakings
    and provide a breakdown of damages.  The appellant met these obligations and
    discoveries continued in December 2007.

[5]

In March of 2008, the court delivered a status notice that resulted in
    the action being dismissed for delay on June 5.  By order dated June 23, 2008
    the dismissal order was set aside.

[6]

After another year of inactivity, the respondent advised the appellant
    that a motion for summary judgment would be brought for an order dismissing the
    action for delay.

[7]

On April 12, 2010, the appellant set the action down for trial  eight
    years after pleadings had closed.

[8]

The respondents motion for summary judgment was served returnable in
    October 2010.  It was not heard until September 2011 due to unavailability of
    the appellants counsel.

[9]

On July 13, 2011, the appellant served its expert report, authored 17
    years after the delivery of the respondents report.

[10]

The
    motion judges reasons for dismissing the action for delay are summarized in
    para. 33 of his reasons:

There must come a point at which the plaintiffs accumulated, inordinate,
    inexcusable, and unexplained delays, in the face of the manifest expectations
    of the administration of justice as set out in the
Rules of Civil Procedure
and in the practices of the court, become reckless if not wilful and become
    disrespectful to the court and the defendant.  In my view, the plaintiff has
    reached that point in this case, thus meeting the standard of intentional and
    contumelious.  Even if the plaintiffs dilatory behaviour were not
    intentional and contumelious within the meaning of rule 24.01, that behaviour
    warrants dismissal of the plaintiffs case in the exercise of the courts
    inherent jurisdiction over its own process.

[11]

The
    test for dismissal of an action for delay is well established: see
Armstrong
    v. McCall
, (2006), 213 O.A.C 229 (C.A.), at para. 11, quoting from
Woodheath
    Developments Ltd. v. Goldman
(2003), 66 O.R. (3d) 731 (Div. Ct), at 732:

The principle to be applied on a motion to dismiss for delay is
    that the action should not be dismissed unless:

(1)

the default is intentional and contumelious; or

(2)

the plaintiff or his or her lawyers are responsible for the inexcusable
    delay that gives rise to a substantial risk that a fair trial might not now be
    possible.

[12]

The
    motion judge dismissed the action for delay on the first branch of the test,
    finding that the appellants default was intentional and contumelious. There
    was ample evidence to support this finding.

[13]

The
    appeal is therefore dismissed.

[14]

Counsel
    for the respondent seeks costs of the action including the motion for summary
    judgment in the amount of $57,000 and costs of this appeal in the amount of
    $7,000.  Both amounts are on a partial indemnity basis and include disbursements
    and applicable taxes.  Counsel for the appellant takes no issue with these
    submissions.  As a result, we order costs to the respondent in the amounts
    requested.

J.C.
    MacPherson J.A.

S.E. Lang
    J.A.

G.J.
    Epstein J.A.


