PETERS v COUNTRYSIDE MASONRY INC

This case was a de novo Appeal on a supplemented record by the Defendant of the Application Judge’s Decision dismissing their Rule 4.31 Application for Delay.

The Action stemmed from masonry work completed in 2007 by the Defendant, through two of its employees, on the Plaintiffs’ home. The Plaintiffs sued in 2016, alleging deficiencies with the masonry work. The Defendant filed a Rule 4.31 Application in 2024.

The Applications Judge held that the Action had been delayed but declined to find that the delay was inordinate. Part of the Applications Judge’s reasoning included the higher number of steps taken in this Action relative to other similarly aged matters as well as the complicating effect of the COVID-19 pandemic.

Justice Devlin noted that, while inordinate delay analysis is case-specific, certain factors would always be relevant including the complexity of the case, the number of witnesses, the scope of documents, the number of experts, and the length of time elapsed since the events in question.

Devlin J. found that despite the passage of eight years, the Action was not close to Trial and noted several factors for such. The Plaintiff who directed and paid for the work had passed away. Neither of the Defendant employees had been questioned and both were elderly, unwell and living in Thailand. Final expert reports had not been exchanged, and no Trial dates had been scheduled. The Plaintiffs had also retained new counsel in 2023.

Devlin J. overturned the Applications Judge’s ruling, finding that there was inordinate delay and actual prejudice flowing from it. Justice Devlin emphasized that the state of readiness for Trial was unacceptable and opined that the Applications Judge’s Decision was indicative of a culture of delay that had been normalized by the courts. Devlin J. also found that there was no satisfactory explanation as to why the Plaintiffs chose to move the matter so slowly, specifically noting the ‘thin affidavits’ filed by the Plaintiffs’ former counsel for the Application and this Appeal. Justice Devlin further found that prejudice against the Defendant was proven by the Defendant employees’ limited and diminishing abilities to recall relevant details.

Consequently, the Court allowed the Appeal and dismissed the Action for long delay.