What constitutes evidence of prejudice in a motion to dismiss for delay?

Ontario, Canada


The following excerpt is from Hurst v. Québec (Société nationale de l'amiante), 2006 CanLII 33682 (ON SC):

What constitutes evidence of prejudice is not limited to one particular type of evidence. Provided that there is some evidence of inordinate or unreasonable delay giving rise to the perception that justice can no longer be done, courts have been willing to find prejudice and dismiss a case. In Belanger v. Southwestern Insulation Contractors Ltd.[57], Borins J. set out the general analysis that is used in a motion to dismiss for delay: It is unnecessary to review the many cases which have discussed the factors to be considered by the court on a motion to dismiss an action for delay or for want of prosecution. Nor is it necessary to consider the relatively rare case where the plaintiff's delay was intentional and contumelious. In order to succeed on a motion to dismiss a plaintiff's claim for delay the defendant must establish that the delay has been unreasonable in the sense that it is inordinate and inexcusable and that there is a substantial risk that a fair trial will not be possible for the defendant at the time the action is tried if it is allowed to continue. The second part of this proposition is often expressed as the likelihood of prejudice to the defendant giving rise to a substantial risk that a fair trial will not be possible when the case is actually tried. Examples of prejudice are the death of a witness, the inability to locate a witness, the inability of a witness to recall important facts or the loss of important evidence. In determining whether the delay has been unreasonable the court should consider the issues raised by the case, the complexity of the issues, the explanation for the delay and all relevant surrounding circumstances. In considering whether the defendant has sustained prejudice the court should consider the availability of its witnesses, whether the evidence is largely documentary or based on the recollection of individuals, the efforts made by the defendant to preserve its evidence and any other relevant consideration. Prejudice to the defendant is to be considered relative to the time the case will likely be reached for trial if permitted to proceed. The court will then balance the right of the plaintiff to proceed to trial with the defendant's right to a fair trial and make its decision. (at pp. 471-472 emphasis mine)

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