Does the passage of five years since the commencement of an action constitute a presumption of prejudice?

Ontario, Canada


The following excerpt is from Landmark Vehicle Leasing v. TAC Mechanical, 2018 ONSC 5956 (CanLII):

As indicated in the text of the rule itself, rule 24.01(2) does not specifically state that a passage of five years since the commencement of the action creates a “presumption of prejudice”. However, this rule does create a rebuttable presumption that in the event of a five year delay, the court shall dismiss the action, which implies the presumption of prejudice referred to by MacLeod J. in Marrello, which in turn is consistent with previous authority that a lengthy delay gives rise to a presumption of prejudice to the defendant (see Berg v. Robbins, [2009] O.J. 6169 (Div. Ct.) at paragraph 14). The term “prejudice” is equivalent to the “substantial risk that a fair trial of the issues in the litigation will not be possible” referred to in paragraph 7 of Langenecker, supra.

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