On February 28, 2024, the Ministry of the Attorney General for Ontario announced that administrative dismissals of civil actions will recommence on May 13, 2024. Administrative dismissals occur pursuant to Rule 48.14(1) in either of two circumstances:
- When the action has not been set down for trial or terminated by any means by the fifth anniversary of the commencement of the action.
- When the action was struck off a trial list and has not been restored to a trial list or otherwise terminated by any means by the second anniversary of being struck off.
Factoring in the COVID-19-related suspension of timelines from March 16, 2020, to September 13, 2020, actions not set down for trial that were commenced prior to November 12, 2018, will be subject to administrative dismissal as of May 13, 2024. There are two primary ways that administrative dismissal can be avoided: (1) Under Rule 48.14(4), if the parties consent to a timetable and draft Order establishing the timetable and file them at least 30-days prior to the administrative dismissal deadline; and (2) Under Rule 48.14(5), a party can bring a motion or a status hearing prior to the expiry of the administrative dismissal deadline.
With administrative dismissals resuming, it is likely that there will be an increase in status hearings in the near future. The recent Court of Appeal for Ontario decision in Beshay v. Labib, 2024 ONCA 186 provides a recent example of the applicable legal framework and the relevant factors.
Background
The plaintiff, Emad Beshay, purchased a business from the defendants, Amgad and Hiat Labib, in December 2015. He commenced an action in December 2016 on the grounds of breach of contract and negligent or fraudulent misrepresentation. Both parties were represented by counsel and pleadings were exchanged in early 2017.
Counsel exchanged correspondence between April and November 2017 and a settlement meeting was scheduled for December 2017. This meeting was cancelled and Mr. Beshay’s counsel wrote to counsel for the Labibs’ in April 2018 regarding the delay. Mr. Beshay’s counsel indicated that Mr. Beshay experienced three deaths in the family recently and that she would contact counsel again a week later. However, Mr. Beshay’s counsel did not contact counsel for the Labibs’ again for four years.
Due to the COVID-19-related suspension, the five-year Rule 48.14 deadline to set the action down for trial expired in June 2022. In April 2022, Mr. Beshay’s counsel sought the consent of counsel for the Labibs’ for a timetable under Rule 48.14(4). After receiving no response, Mr. Beshay’s counsel brought the motion for a status hearing.
The Motion Decision
At a status hearing, the plaintiff bears the burden of showing: (1) an acceptable explanation for the delay in pursuing the litigation; and (2) that the defendants would not suffer non-compensable prejudice if the action were permitted to proceed. Applying this test, Justice Shaw dismissed the plaintiff’s claim.
Mr. Beshay’s counsel argued that an acceptable explanation for the delay was established based on the following:
- He experienced three deaths in his family in early 2018, which the defendants were made aware of;
- His wife began to experience mental health issues as a result of the deaths and he was focused on caring for her;
- The COVID-19 pandemic impacted the business he purchased from the defendants which caused him anxiety for which he was prescribed medication; and
- He experienced financial strain between 2017 and 2020 because the business he purchased from the defendants was less profitable than had been represented.
Justice Shaw accepted that Mr. Beshay and his wife were impacted by the deaths in their family which may have justified a short period of initial delay. However, the remainder of the explanations were rejected. The claims about the impacts of Mr. Beshay’s mental health and his wife’s mental health were rejected because the only supporting evidence provided was bald assertions in an Affidavit, without any supporting evidence such as prescriptions or any medical records. In addition, during this time Mr. Beshay continued to operate two businesses, owned and rented multiple properties, discharged a mortgage, and his annual income was always over $100,000. Additionally, Justice Shaw followed prior case law holding that the inherent disruption caused by the pandemic is not an acceptable explanation for delay.
Justice Shaw went on to explain that the defendants had also suffered non-compensable prejudice. Two of the defendants’ proposed witnesses swore affidavits indicating that their memories of relevant events had faded and that certain documents and correspondence relevant to issues in the litigation were likely no longer available.
The Court of Appeal Decision
The Court of Appeal upheld Justice Shaw’s decision to dismiss the action, noting that a judge’s decision at a status hearing is discretionary and entitled to deference on appeal.
The court agreed with Justice Shaw’s analysis and conclusion that the plaintiff had not demonstrated an acceptable explanation for the delay. They agreed with Justice Shaw’s statement that: “When a party asks the court to find that their explanations for delay are reasonable, I expect that the party making the request would put their best foot forward and present cogent evidence to support those explanations. Bald assertions of illness or financial strain are insufficient to discharge that onus.”
Mr. Beshay asserted that Justice Shaw made an error by not assigning any weight to the defendants’ inaction between April 2018 and 2022. The court re-iterated the well-known principle that the party who initiates a proceeding bears primary responsibility for its progress, but that “a defendant’s passivity in the face of inaction by the plaintiff may be a relevant factor in the contextual analysis.” However, it was not a relevant factor in this case as Mr. Beshay had no acceptable explanation for his delay, and “once the motion judge rejected all of the appellant’s proffered explanations, the respondents’ own inaction during this time period could not properly serve as a makeweight.” The court also found no error in Justice Shaw’s finding of prejudice as the evidence of the two witnesses regarding faded memories and loss of documents was uncontested.
Finally, the court was critical of the draft timetable filed by Mr. Beshay in April 2022. Despite being the party who drafted the timetable, by the time of the status hearing in May 2023, none of the steps in the timetable were completed.
Conclusion
The Beshay decision should serve as a warning to plaintiffs now that administrative dismissals are resuming later this month. At status hearings, the burden is on the plaintiff to marshal evidence and demonstrate why the action should not be dismissed having regard to the two-part legal test. This is different than a Rule 24 motion to dismiss for delay where a different test applies and the burden is on the defendant to show why the action should be dismissed for delay. The Beshay decision also suggests that while a defendant’s inaction is a relevant factor in the analysis, it will be of limited relevance in the face of significant and inadequately explained delays by a plaintiff.
