It’s been long enough: A culture shift for litigation delay in Ontario

Historical view on litigation delay

The Province of Ontario’s Rules of Civil Procedure have long included mechanisms aimed at addressing litigation delay. Rules 24.01 and 48.14 establish the general framework, with the latter rule mandating an administrative dismissal where an action is not set down for trial or otherwise resolved within five years.

For more than a decade, these provisions were interpreted through the analytical framework established in Langenecker v. Sauvé. In this decision, the Court of Appeal articulated a three-part test requiring a defendant to establish that delay was inordinate, inexcusable, and prejudicial. Importantly, all three elements had to be satisfied before dismissal would be granted.

Central to the Langenecker decision was the court’s emphasis that the mere passage of time was not determinative. Instead, the court considered whether the passage of time impacted the defendant’s ability to have a fair trial. For years, the case law has afforded the court with minimal discretion to dismiss a matter where a litigant was able to rebut the presumption of prejudice – even where proceedings had been stalled for years.

The relatively forgiving framework has contributed to a culture that is decidedly tolerant of litigation delays, at least in comparison to many other jurisdictions. However, things may be starting to change.

A shift in tone: Barbiero v. Pollack

Barbieroinvolved a proceeding that commenced in 2003. Discoveries were completed by 2005, mediation occurred in 2012, and little progress followed. In 2022, nearly two decades after the action began, the defendants moved to dismiss the action for delay. 

The plaintiffs relied heavily on the Langenecker decision, arguing that delay alone could not justify dismissal absent proof of actual prejudice. The Court of Appeal in Barbiero rejected that position outright, holding that Langenecker’s tolerance for prolonged inactivity was “out of step with the contemporary needs of Ontario’s civil justice system”.

The court emphasised that delay itself causes real harm to parties, witnesses, and the justice system. It criticised the notion that a 20-year delay could be described as a case that merely “moved slowly”, concluding that the action had wandered “deep into the dark wood” of inordinate delay.

The five-year benchmark 

One of Barbiero’s most significant takeaways is its treatment of Rule 48.14’s five-year benchmark. The court explained that once an action surpasses five years without being ready for trial, it crosses a meaningful threshold into inordinate delay. Importantly, the five-year clock runs from the day the case started, not from later procedural milestones or periods of activity.

This stricter focus on inordinate delay will inevitably reshape how courts assess prejudice. While Barbiero does not eliminate the concept of prejudice as a consideration, it makes it less dominant in the analysis. The court has made it evident that inordinate delay may justify dismissal on its own – a significant departure from the focus on trial fairness that was central to Langenecker.

Although not explicitly spelled out by the court, a further consequence of the revised framework is this: if a delay beyond five years is presumptively inordinate, and the delay itself may constitute prejudice, the central question for any matters older than five years will seemingly be whether the delay is “excusable”. This inquiry will, by necessity, require a significantly closer look at the conduct of the parties (and their lawyers), and whether any external constraints can reasonably explain the inactivity. 

Whether intended by the courts or not, this heightened focus on excusability makes it even more important for counsel to be mindful of their clients’ set-down deadlines.

How courts are applying Barbiero so far

In Beach v. Zigelstein, the court relied directly on Barbiero to conclude that nearly five years of complete inactivity within a 10-year-old action was inordinate. The court accepted that delay alone could constitute sufficient prejudice to justify dismissal. 

In Ganesh v. HMK, the court acknowledged Barbiero’s warning that delay causes harm, but reaffirmed that dismissals remain contextual. The court emphasised the importance of strict case management where actions are not dismissed.

We look forward to seeing how the court continues to implement the new framework, especially in the context of the proposed changes to the Rules. Barbiero may be just the beginning of a broader, more significant shift in our justice system’s approach to civil litigation delays.

---

Graeme R. Oddy is a Partner at Devry Smith Frank LLP in the commercial litigation and tax law departments. Called to the Bar in 2018, he advises on contract and shareholder disputes, professional negligence, mortgage enforcement, and tax litigation, including CRA audits and appeals.

Adriana Piccolo is an articling student at Devry Smith Frank LLP and a Western Law J.D. graduate. She held leadership roles in real estate and tax associations and earned the CBA’s 2024 Municipal Law award. She also received Western Law’s Global Engagement Honour.