Last year I wrote a blog about the courts beginning to enforce administrative dismissals on actions that have not been set down for trial within five years. However, that was not the only development in the world of dismissals for delay.
In Barbiero v Pollack, the Ontario Court of Appeal revisited and overturned its previously accepted principle of law from the decision in Langenecker v. Sauvé, 2011 ONCA 803.
In Langenecker the Court of Appeal ruled that delay or the passage of time by itself could not constitute sufficient harm or prejudice to support a dismissal.
The case in Barbiero was concerning an action started in 2003. In 2022, the Superior Court found in favour of the defendant’s motion to dismiss the action for delay under Rule 24.01 of the Rules of Civil Procedure
On appeal, the plaintiff made the argument that based on Langenecker, the passage of time on its own could not constitute sufficient harm or prejudice to support the dismissal of an action.
The Court of Appeal dismissed this argument and ruled that the Langenecker approach “is out of step with the contemporary needs of the Ontario civil court system” and that the passage of time, on its own, may constitute sufficient prejudice to dismiss an action for delay.
The Court emphasized the culture shift necessary to remove indifference to delay in the court system and made clear that it is the party who initiates a claim who bears the burden of moving a proceeding to its final disposition on the merits.
The Barbiero decision reiterates the importance of hiring a lawyer who will devote the proper attention and take the proper steps to reaching a final resolution of a legal dispute.
If your business is currently involved in litigation or you anticipate potential claims our team is ready to help guide you through the process efficiently and effectively.
Ariel Dorfman, Associate Lawyer