Why litigation planning is essential

December 7, 2012

In Canada’s legal system, to start a lawsuit is not easy. Add on to this is the fact that ending a lawsuit is even more difficult, general speaking. A recent Court of Appeal decision, 1196158 Ontario Inc. v. 6274013 Canada Limited, is a case in point.

In the case the plaintiff commenced an action in September 2006. Defence was filed, but the matter had never progressed beyond the pleadings stage. On the basis of failure to set the matter down for trial within two years of filing of the Defence, the court issued a status notice in October 2008. A status hearing was held in January 2010 and a timetable was agreed upon by the parties. Accordingly, discoveries were to be completed and the action would be set down for trial by June 2011. However, the plaintiff failed again to follow this timetable. Another status hearing was held in September 2011, and the action was dismissed for delay. The plaintiff appealed.

In speaking for the Court of Appeal, Justice Sharpe reasoned:

After five years of inaction on the part of the plaintiff, it was virtually inevitable that the defendant would assume that the claim was not being pursued.

… …

The defendants did nothing to resist any attempt by the plaintiff to  advance the action. Failing any initiative on the part of the plaintiff, to require the defendant to spend time and money to prepare for a case that, from all appearances, was dead on the vine would be to impose an unnecessary and unreasonable burden.

Well said, Justice Sharpe.

While the dismissal of the case was confirmed, the case took almost 6 years to finalize, assuming the Plaintiff will not appeal to the Supreme Court of Canada (which the Plaintiff will have little chance to succeed).

What is the lesson learned? Prospective litigants should always make adequate preparation before lodging a lawsuit, and try to negotiate and settle the disputes. Lawsuit should be the last resort one should employ to resolve disputes.


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