Van Aert v. Sweda Farms Ltd. (Best Choice Eggs)

Van Aert v. Sweda Farms Ltd. (Best Choice Eggs)

The motion judge correctly analogized the appellant's request to Rule 48 principles, the appellant failed to provide an acceptable explanation for the multi‑year delay in seeking relief and failed to rebut the risk of actual prejudice from reviving and broadening the counterclaim; accordingly the motion judge did not err and the appeal is dismissed.

Citation
2018 ONCA 831
Parties
Plaintiff (respondent): Luke Van Aert; Plaintiff (respondent): Sandra Van Aert; Plaintiff (respondent): Sanlu Family Poultry Farms Limited (formerly Sanlu Holsteins Ltd.); Plaintiff (respondent): 174421 Ontario Inc.; Defendant (appellant): Sweda Farms Ltd., c.o.b. as Best Choice Eggs
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
17 October 2018
Procedural Posture
Civil / Appeal From Motion Dismissing Application to Revive Counterclaim and to Be Relieved of Consequences of Non‑compliance With Prior Order (on Appeal From Superior Court)
Outcome
Appeal dismissed
Legal Topics
Setting Aside Judgment, Relief From Consequences of Non‑compliance, Delay and Laches, Prejudice, Rule 48 Analogies
Source Language
English
Civil Procedure Appeal Enforcement of Judgment Costs Setting Aside Judgment Relief From Consequences of Non‑compliance Delay and Laches Prejudice +1 more

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Parties

Luke Van Aert

Plaintiff (respondent)

Sandra Van Aert

Plaintiff (respondent)

Sanlu Family Poultry Farms Limited (formerly Sanlu Holsteins Ltd.)

Plaintiff (respondent)

174421 Ontario Inc.

Plaintiff (respondent)

Sweda Farms Ltd., c.o.b. as Best Choice Eggs

Defendant (appellant)

Procedural Posture

Civil / Appeal From Motion Dismissing Application to Revive Counterclaim and to Be Relieved of Consequences of Non‑compliance With Prior Order (on Appeal From Superior Court)

Legal Issues

  1. 1 Whether the motion judge applied the correct legal test for a belated request to be relieved of consequences of failing to comply with a court order
  2. 2 Whether the appellant provided an acceptable explanation for delay in seeking relief
  3. 3 Whether the respondents would suffer non‑compensable prejudice if the counterclaim was revived

Ratio Decidendi

The motion judge correctly analogized the appellant's request to Rule 48 principles, the appellant failed to provide an acceptable explanation for the multi‑year delay in seeking relief and failed to rebut the risk of actual prejudice from reviving and broadening the counterclaim; accordingly the motion judge did not err and the appeal is dismissed.

Court Disposition

Appeal dismissed

Orders

  • Appeal dismissed
  • Motion to permit revival of the counterclaim and to amend same dismissed