CIVIL PROCEDURE - Dismissal of action - Delay or failure to prosecute - Prejudice to defendant

Law360 Canada ( January 30, 2025, 9:47 AM EST) -- Appeal by Appellant from the dismissal of its action against the Respondent for prejudicial delay. In 2006, the Respondent painted the Appellant's bridge, providing a five-year warranty to the Appellant. By 2008, defects in the paint were evident, and in 2011, the Appellant requested warranty repairs, which the Respondent denied, claiming adherence to specifications. The Appellant filed a statement of claim on June 5, 2013, and served it on April 28, 2014, advising the Respondent that a statement of defence was not immediately necessary. The claim was amended on August 27, 2014, to include another defendant. No significant litigation steps were taken until June 2018, when the Appellant requested a statement of defence from the Respondent. The Appellant had obtained two expert reports, one in 2015 and another in 2018, identifying both the paint and its application as causes of the failure. In October 2015, a meeting between the parties did not resolve the dispute. In June 2018, the Appellant sent the second expert’s report to the Respondent which then sought to have the action struck for delay, citing the expiration of the limitation period. The chambers judge dismissed the City's action for prejudicial delay, a decision the City appealed. The chambers judge found that the City took five years to produce expert reports without advancing litigation, which resulted in significant prejudice to the Respondent. Further, the judge noted the death of key witnesses and the deterioration of evidence, such as the paint, as factors which contributed to the prejudice. The Appellant argued that the delay was primarily between 2016 and 2018 and that obtaining expert reports was reasonable. However, the chambers judge determined that the overall delay and lack of litigation steps were unjustified. The judge found that the Respondent did not acquiesce to the delay, as no standstill agreement existed, and the Appellant had advised the Respondent that a defence was unnecessary....
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