There is no doubt that where other sanctions fail and if a party is guilty of repeated delays and non compliance the right to litigate may be lost. See for example Vacca v. Banks (2005) 6 C.P.C. (6th) 22 (Div.Ct.) In the absence of compelling evidence of prejudice, however, unless there has been contumacious willful breach of deadlines and court orders and if a sanction short of the ultimate sanction is appropriate then the court will normally impose a consequence short of dismissal. While timely justice and obedience to procedural orders are important principles, there is also a general principle in our rules of civil procedure that the trial of actionable wrongs should not be defeated by procedural irregularities. This is clearly enunciated in Rule 1.04 and in Rule 2. It seems unfair to completely reverse the onus on a defendant in such cases simply because the court has acted without being moved to do so by the defendant. It seems to me unlikely that this action would have been dismissed had the defendant brought a motion for sanctions for breach of the case management order. That is particularly true in motor vehicle cases in which threshold is an issue and it may be many years before it can be convincingly demonstrated that a plaintiff has suffered permanent serious impairment.
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