SUBRAMANIAN V. BHAWANEESINGH, 2016 ONSC 4890 (CANLII)

The action arises out of a June 2007 motor vehicle accident. The Statement of Claim was issued in 2009, Examinations for Discoveries were held in 2011 and mediation was held in August 2013. The Trial Record was filed by the Plaintiff in May 2013. There was disagreement between counsel with respect to the length of the trial and the Plaintiff’s counsel failed to obtain pre-trial and trial dates prior to the July 25, 2014 date established by the Trial Scheduling Office. The action was struck off the trial list on July 25, 2014 and the Plaintiff filed its Notice of Motion on November 10, 2015 for an order granting leave to restore the action to the trial list.

The Defendant opposed the motion and in their factum relied upon Nissar v. Toronto Transit Commission, 2013 ONCA 361 (CanLII) for the proposition that to restore an action to the trial list, the Plaintiff must show an acceptable explanation for the delay and no non-compensable prejudice to the Defendant. Defence counsel argued the finalized pre-trial certificate was never filed by the Plaintiff and that no acceptable explanation for this situation was provided.

However, Master Short was persuaded by the Court of Appeal decision of Carioca’s Import & Export Inc. v. Canadian Pacific Railway Ltd., 2015 ONCA 592 (CanLII) relied upon by the Plaintiff. In Caricoa, Justice van Rensburg noted that a proper delay analysis does not consider the conduct of an action in a vacuum and applying too exacting a standard for restoring an action which has been struck from the trial list may well hinder the objective of an efficient justice system.

Master Short agreed the Plaintiff bears the onus of demonstrating the Defendant would suffer no non-compensable prejudice if the action were allowed to proceed. The Plaintiff asserted the only potential prejudice to the Defendant in this case would be the accruing pre-judgment interest due to the delays. Master Short accepted the Plaintiff’s response that this was compensable and did not meet the test as outlined by the Ontario Court of Appeal to deny the restoration of an action to the trial list.

Master Short restored the action pursuant to Rule 48 to the trial list and ordered costs for the motion, fixed at $3,000 payable by the Defendant in the cause of the main action.