Tarion Warranty Corporation v. Kozy
No action or proceeding against the Planholder in respect of a claim under this plan shall be commenced within 60 days of the date on which proof of the claim is filed with the Administrator, nor after 2 years from the date of the happening of the covered event.
Langenecker v. Sauve
In reviewing the motion judge's decision, the Court applied the test under rule 24.01 for dismissal of an action for delay. They discussed three types of cases that justify an order for delay according to Lord Diplock. The first are cases where the delay is caused by intentional conduct by the plaintiff or his/her counsel that demonstrates a disdain or disrespect to the court process. This type of delay did not apply to the appellant's situation.
The second type of case discussed by the Court that justifies an order dismissing an action for delay has three characteristics. The delay must be inordinate, inexcusable, and must give rise to a substantial risk that a fair trial of the issues in the litigation will not be achievable as a consequence of the delay. The inordinance of the delay is determined by reference to the length of time from the commencement of the proceeding to the motion to dismiss. The Court stated that there was no doubt that 15 years from the appellant's commencement of this action to the moment where the motion was dismissed, constituted inordinate delay.
The third requirement concerned the prejudice caused by the delay associated with to the defence's ability to put forward its case for adjudication on the merits. The Court emphasized that prejudice is inherent in long delays as memories fade, witnesses become unavailable, and as such there is a greater likelihood that documents and other potential exhibits may be lost. The respondents claimed that their inability to obtain an expert was caused by the delay in the prosecution of the claim and resulted in prejudice to their clients.
The Court declared that the appellants were unable to demonstrate that the motion judge committed a factual error in his characterization that the delay was "inexcusable". In support of the appellant's submission that the inference of prejudice was rebutted, counsel for the appellant submitted that two experts, one for each side, had been able to give written opinions on the reasonableness of the doctors' conduct based on the medical records. Furthermore, the appellant's proclaimed that the respondents were examined for discovery many years ago and therefore they had the ability to refer to the discovery transcripts to refresh their memory. The Court rejected the appellant's arguments. The experts' ability to offer an opinion based on the medical records presumed that the records provided an accurate or complete basis upon which to assess the reasonableness of the respondent doctors' conduct and the care they rendered.
In denying the appeal, the Court held that the motion judge applied the correct test for delay. Moreover, the Court found that the motion judge's assessment of the facts revealed no reversible error.