Ontario Civil

Civil Practice and Procedure

Disposition without trial

Dismissal for delay

Error in transcript played significant role in decision to allow appeal

In August 2014, plaintiff condominium corporation brought action for damages arising from construction of condominium complex in 2004. Plaintiff alleged negligent construction had resulted in visible defects in brick exterior. It claimed it first learned of deficiencies when it received inspection report in August 2012. It claimed damages of $1 million jointly and severally from 23 defendants. As of February 2017, plaintiff had served only two defendants, municipality and warranty corporation. Six of remaining defendants claimed they had only learned of action as result of being served with cross-claims in 2015 and brought motion to dismiss action as against them for delay. Motion was dismissed on basis plaintiff had adequate explanation for delay, presumption of prejudice had been rebutted and all material witnesses and documents remained available with result fair trial remained possible. Defendants successfully appealed. Plaintiff appealed. Appeal allowed. Central error of fact identified by appeal judge was master’s finding that documents of individual defendants had been preserved. As she correctly noted, this finding contradicted respondents’ evidence that records had been purged. Unfortunately, however, typed version of master’s handwritten reasons presented to and relied upon by appeal judge contained error. Typed version appeared to have incorrectly transcribed “institutional” as “individual”. There was therefore no inconsistency in master’s finding. This unfortunate error in transcription played significant role in appeal judge’s decision to allow appeal.

York Region Standard Condominium Corporation No. 1039 v. Richmond Hill (Town) (2018), 2018 CarswellOnt 8546, 2018 ONCA 511, K. Feldman J.A., J.C. MacPherson J.A., and Paul Rouleau J.A. (Ont. C.A.); reversed (2017), 2017 CarswellOnt 18015, 2017 ONSC 6868, S.J. Woodley J. (Ont. S.C.J.).

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