Hellenic Community of Kitchener Waterloo v. Urbex Management Limited
The motions judge erred by treating general allegations of prejudice as sufficient; absent specific evidence of prejudice the action should not have been dismissed. The appeal is allowed, the dismissal is set aside, and the respondent may reapply to dismiss if the appellant fails to answer undertakings within 30...
Source-derived case information.
- Citation
- C39583
- Parties
- Plaintiff/appellant: Hellenic Community of Kitchener Waterloo and Suburbs Housing Inc.; Defendant/respondent: Urbex Management Limited; Defendant/respondent: The Halifax Insurance Company
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 20 November 2003
- Procedural Posture
- Civil Appeal / Court of Appeal Decision on Motion to Dismiss for Delay (appeal From Superior Court Order Dated January 22, 2003)
- Outcome
- Appeal allowed; order dismissing the action set aside.
- Legal Topics
- Dismissal for Delay, Prejudice, Undertakings, Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hellenic Community of Kitchener Waterloo and Suburbs Housing Inc.
Plaintiff/appellant
Urbex Management Limited
Defendant/respondent
The Halifax Insurance Company
Defendant/respondent
Procedural Posture
Civil Appeal / Court of Appeal Decision on Motion to Dismiss for Delay (appeal From Superior Court Order Dated January 22, 2003)
Legal Issues
- 1 Whether inexcusable delay and alleged prejudice justified dismissal of the action
- 2 Whether general allegations of prejudice suffice absent specific evidence (eg. lost or incapacitated witnesses)
- 3 Whether failure to comply with undertakings can constitute prejudice for a fresh motion
Ratio Decidendi
The motions judge erred by treating general allegations of prejudice as sufficient; absent specific evidence of prejudice the action should not have been dismissed. The appeal is allowed, the dismissal is set aside, and the respondent may reapply to dismiss if the appellant fails to answer undertakings within 30 days (such failure to establish prejudice) or on any other proper basis; costs awarded to respondent.
Court Disposition
Appeal allowed; order dismissing the action set aside.
Orders
- Order dismissing the action set aside
- Respondent may move again to dismiss the action for delay if appellant fails to provide answers to undertakings within thirty days; such failure shall establish prejudice for the purposes of such a motion
Full Case Text
Judgment text and source record
1 paragraphs
Hellenic Community of Kitchener Waterloo v. Urbex Management Limited Collection Decisions of the Court of Appeal Date 2003-11-20 Docket numbers C39583 Judges Feldman, Kathryn N.; Gillese, Eileen E.; Armstrong, Robert Patrick Subject Civil Decision Content DATE: 20031120 DOCKET: C39583 COURT OF APPEAL FOR ONTARIO RE: HELLENIC COMMUNITY OF KITCHENER WATERLOO AND SUBURBS HOUSING INC. (Plaintiff/ Appellant) and URBEX MANAGEMENT LIMITED and THE HALIFAX INSURANCE COMPANY (Defendants/Respondents) BEFORE: FELDMAN, GILLESE and ARMSTRONG JJ.A COUNSEL: A.J. Esterbauer and Ernest Putman for the plaintiff/appellant A.M. Robinson for the defendant/respondent Urbex Management Limited HEARD: November 13, 2003 RELEASED ORALLY: November 13, 2003 On appeal from the order of Justice D.J. Gordon of the Superior Court of Justice dated January 22, 2003. ENDORSEMENT [1] We are of the view that the motions judge erred in principle in finding there was prejudice due to inexcusable delay caused by the appellant that gave rise to a substantial risk that a fair trial of the issues in the action will not be possible. [2] We agree that the overall length of time taken to reach this stage of proceeding is inordinate. However, the prejudice alleged by the respondent is general in nature. We note, for example, that there is no evidence that any necessary witness has died, is incapacitated or cannot be located. See De Marco v. Mascitelli (2001), 14 C.P.C. (5th) 384 at 391. We recognize that the respondent has been handicapped in providing evidence of such prejudice by the failure of the appellant to comply with undertakings. For that reason, we allow the appeal and set aside the order dismissing the action, but without prejudice to the respondent to move again to dismiss the action for delay on either of the following bases: (i) In the event that the appellant does not provide answers to the undertakings within thirty days; (In the circumstances, such failure shall establish prejudice for the purposes of such a motion) or (ii) on any other proper basis. [3] In the circumstances, costs of the appeal and of the motion below shall be to the respondent fixed in the amount of $14,000.00, inclusive of disbursements and G.S.T., payable forthwith. "K. Feldman J.A." "E.E. Gillese J.A." "R.P. Armstrong J.A."