Sleepy Hollow: Inexcusable Delay is Abusive

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In Jadid v Toronto Transit Commission, 2016 ONSC 1176, Justice Dunphy of the Ontario Superior Court of Justice stayed an action for delay. In 2012, the plaintiff was granted her request to have the registrar’s order dismissing her action for delay set aside. It was set-aside on the condition that she set her action down for trial within 60 days. The plaintiff failed to do so. In the words of Justice Dunphy, she filed the paperwork in the “postal code of Sleepy Hollow”. A place, I would venture that many cases go to die. Especially considering that the court system often financially rewards lawyers that prepare later rather than earlier in the litigation life cycle.

Justice Dunphy speculates that either the plaintiff had no interest in having the claim heard on its merits or her counsel made a financial decision not to invest the time or money needed to prepare for trial. In any event, the prosecution of her case was lax. And crossed the line from negligence to contempt of court.

Justice Dunphy wrote:

[7] At what point does the desultory prosecution of an action become so egregious and abusively glacial as to cross the line from merely inexcusable negligence to contempt of an order of the court? In my view, this case has crossed the line to the latter or come so close to it as not to matter. It would be an abuse of process to sanction this blatant disregard of an express order of the court. If the line is not to be drawn here, I can think of no credible place to draw the line and retain any credibility as a court seeking to control the integrity of its own process.

[8] This court is not to be mistaken for a rubber stamp and its orders are not to be treated as mere suggestions to be followed or ignored as the mood or whim may suggest. If a party cares so little for a claim as to fail to advance it diligently or even to make a show of abiding by the orders of the court she has sought, there can be no prejudice in putting an end to the sorry spectacle before it consumes further resources of the court and of the innocent defendant…

Perhaps if Justice Brown’s “5-Point Action Plan” was implemented, counsel would be incentivized to move their cases along. For example, in his “5-Point Action Plan”, Justice Brown calls for the assignment of trial dates upon the close or deemed close of pleadings.

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