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News & Events

Irvin Schein blogged, "Dismissal For Delay: How Long Is Too Long?"

Sep 27, 2013

Written by Irvin Schein and originally published at

The recent decision of the Ontario Court of Appeal in Khan v. Metroland Printing, Publishing and & Distributing Ltd. et al is a useful reminder that even though the wheels of justice may feel like they turn slowly, there is a limit to everything. 

This case arose out of a mayoral election in Richmond Hill, Ontario in 1997. The successful candidate in that election was William Bell. The unsuccessful candidate was Colleen Khan. Both are now deceased.

In January 1998, Ms. Khan and others commenced this action alleging that defamatory statements, including statements allegedly made by Mr. Bell, were published in Metroland’s newspaper. The action was defended and Bell also delivered a counterclaim alleging that Ms. Khan’s campaign literature included defamatory statements about him.

The pleadings and examinations for discovery were completed in late 1998.

Nothing else happened to move the case forward. In 2001, the Court made an Order requiring Mr. Bell to pay security for costs into Court. That Order was finally set aside in May 2005.

Nothing took place between May 2005 until February 2013 when the Defendants brought a motion to dismiss the action for delay. In response, the Plaintiffs insisted that they still intended to proceed with the case.

The Judge hearing the motion pointed out that over fifteen years had passed since the alleged defamation took place and fourteen years had passed since the action was started. While the position of the Khans on the motion was that they wanted to proceed to trial, there was simply no explanation as to why the action was not set down on the trial list in the subsequent fourteen years.

In this case, there was evidence of actual prejudice as a result of the loss of witnesses, as well as a presumption of prejudice arising from the delay.

The action was dismissed and on appeal to the Court of Appeal, the appeal was dismissed with costs.

Notwithstanding efforts that have been made in the administration of our court system, there are delays inherit in the system. At the moment, in Toronto, it can take seven months to obtain time from the Court for the hearing of a Masters motion. A motion before a judge will take at least four months, and only if it is relatively short. So an action can still take a long time to get to trial, even if both sides move the case along in a reasonable way. But if the parties allow an action to languish, this case is a useful reminder that there is indeed a limit to how long that will be tolerated.