What are the factors used to determine sustained prejudice?

Ontario, Canada


The following excerpt is from Wallace and Wallace v. Crate’s Marine Sales Ltd. et al, 2013 ONSC 7384 (CanLII):

In Belanger v. Southwestern[13], examples of prejudice were said to include the death of a witness; the inability to locate a witness; the inability of a witness to recall important facts and the loss of important evidence. In considering whether a 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 further 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 against the defendant’s right to a fair trial. [14] I note this is not an exhaustive list of considerations.

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