Ontario Court Of Appeal Summaries (January 1 – January 5, 2018)

Civil Decisions

Stokker v. Storoschuk, 2018 ONCA 2

[Laskin, Huscroft and Paciocco JJ.A.]

Counsel:

James Lawson, for the appellant

Christopher Lee, for the respondents

Keywords: Civil Procedure, Administrative Dismissal for Delay, Rules of Civil Procedure, Rule 48.11(b), 48.14, Nissar v. Toronto Transit Commission, 2013 ONCA 36, Gill v. Khindria, 2016 ONSC 5057

Facts:

Beginning in 2005, Mr. Stokker and Ms. Storoschuk were in a romantic relationship. Throughout their relationship, the parties were involved in a number of business transactions. Disagreements emerged over land and money. In 2007, Mr. Stokker, the appellant, sued the respondents, Ms. Storoschuk and her corporation, 1641516 Ontario Inc. Since then, the appellant's lawsuit has languished. It was dismissed administratively twice for delay and then reinstated on consent. Three court-ordered timetables imposed on the appellant were not met.

In December 2015 the action had, once again, been removed from the list. The respondents, unaware of this, brought a motion under rule 48.14 of the Rules of Civil Procedure to have the appellant's action dismissed for delay. The motion was adjourned for a short time. On the return date, March 17, 2016, the appellant was not called upon to show cause as to why his action should not be dismissed. Instead, the parties agreed to a fourth timetable, as well as a consent order under r. 48.14(4). The timetable set out a series of completion dates that the appellant would have to meet to ready the matter for trial. Clause 3 of the order provided that, "pursuant to Rule 48.14(1), the Registrar shall dismiss this action for delay with costs unless the action has been restored to the trial list on or before August 18, 2016."

The appellant was late in performing some of the steps in the fourth timetable, but managed to complete the required tasks and to bring a rule 48.11(b) motion to reinstate the action before the August 18, 2016 deadline. The respondents opposed the motion, but the master reinstated the action to the trial list. The respondents appealed to a single judge of the Superior Court of Justice and the appeal was allowed. The appellant now comes before the Court of Appeal, arguing that the appeal judge erred in law in allowing the appeal.

Issues:

Did the appeal judge err in allowing the appeal? Holding: Appeal allowed.

Reasoning:

Yes. The parties agree that each level of court applied the proper legal test for restoring an action. In Nissar v...