Top 5 Civil Appeals from the Court of Appeal (October 2015)

1. Carioca's Import & Export Inc. v. Canadian Pacific Railway Limited, 2015 ONCA 592 (Sharpe, Lauwers and van Rensburg JJ.A.), September 2, 2015

2. Sandu v. Fairmont Hotels Inc., 2015 ONCA 611 (Weiler, van Rensburg and Roberts JJ.A.), September 11, 2015

3. DBDC Spadina Ltd. v. Walton, 2015 ONCA 628; 2015 ONCA 625; 2015 ONCA 624 (Gillese, Lauwers and Benotto JJ.A.), September 17, 2015

4. Hanif v. Ontario College of Pharmacists, 2015 ONCA 640 (Laskin, MacPherson and MacFarland JJ.A.), September 21, 2015

5. White v. White, 2015 ONCA 647 (Feldman, Simmons and Miller JJ.A.), September 25, 2015

1. Carioca's Import & Export Inc. v. Canadian Pacific Railway Limited, 2015 ONCA 592 (Sharpe, Lauwers and van Rensburg JJ.A.), September 2, 2015

   The appellant brought this appeal to restore its action to the trial list under Rule 48.11 of the Rules of Civil Procedure.

   Carioca's Import & Export Inc. commenced an action against the respondent, Canadian Pacific Railways Limited, in March, 2007. It claimed $125,000 for negligence with respect to a fire that took place the year before on railway lands owned by the respondent which spread to its business, causing damage and loss.

   The respondent defended the action, and examinations for discovery took place in 2008. Thirty-nine undertakings were given in the examination for discovery of the appellant's representative. In June, 2009, the appellant set down the action for trial.

   The case was struck from the trial list in October, 2010, due to the appellant's alleged failure to fulfill its undertakings on discovery and the respondent's refusal to sign the trial certification form on that basis. The action was restored to the trial list in January, 2012, however, on an unopposed motion.

   Over the next year and a half, the respondent sought answers to three outstanding undertakings. The appellant responded with updates explaining the delay in producing the required documents. In June, 2013, the respondent indicated that the trial would need to be adjourned, as it had not yet received certain records it required for its expert's review. Soon after, the appellant advised that while the majority of the documents were available, some tax records remained outstanding. The appellant agreed to adjourn the pre-trial and trial dates in order to facilitate the preparation of expert reports.

   In October, 2013, when the appellant requested new dates on consent, the presiding judge struck the action from the trial list. Over the next few months, however, the remaining documents were exchanged and the appellant advised that its expert report would be delivered by October, 2014.

   In May, 2014, the appellant served a motion to restore the action to the trial list. A status notice was issued by the court shortly thereafter under Rule 48.14(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, indicating that more than 180 days had passed without the action being restored to the list. The notice stated that the action would be dismissed within ninety days unless restored to the list, terminated, documents were filed providing a consent timetable or a judge or master ordered otherwise.

   At the appellant's August, 2014 motion to restore, the motion judge refused to restore the action to the trial list under Rule 48.11. Accordingly, the action was administratively dismissed with costs, pursuant to Rule 48.14. Carioca appealed, seeking to have its action restored to the trial list.

   Writing for the Court of Appeal, van Rensburg J.A. noted that the motion judge correctly identified the test for rule 48.14 dismissals, as set out by the Court in Nissar v Toronto Transit Commission, 2013 ONCA 361: in deciding whether to restore an action to the trial list, the judge must determine whether the plaintiff has provided an acceptable explanation for the delay in the litigation and demonstrated that, if the action is allowed to proceed, the defendant would suffer no non-compensable prejudice.

   Justice van Rensburg found, however, that the motion judge's analysis revealed errors in principle in applying both parts of the test, and that he erred in exercising his discretion not to restore the action to the trial list.

   The motion judge decided the delay issue based on an allocation of blame for the delay, when he ought to have considered whether there was a reasonable explanation for it. Had he evaluated whether the appellant's explanation was reasonable, he would have taken into account important factors such as the circumstances under which the action came to be struck from the trial list and the fact that the case was ready for trial when the motion came before him. Moreover, while the plaintiff bears the burden of proof on the motion, the conduct of all parties to the litigation is relevant in determining whether to restore an action to the trial list. The motion judge focused almost exclusively on the appellant's conduct, failing to consider the overall dynamics of the litigation.

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