Kelly Santini Wins Dismissal for Delay


In Osman v. Mohamed et al, 2023 ONSC 1677, Kelly Santini’s Makena Korte-Moore was successful in an Ontario Superior Court motion for dismissal for delay pursuant to Rule 24 of the Rules of Civil Procedure. The original claim against Commonwell Mutual Insurance Group was commenced in 2018,  following a single vehicle accident in 2016. Between 2019 and 2022, Kelly Santini’s Crystal Schulz, acting on behalf of Commonwell, made over two dozen requests to plaintiff counsel for updated productions and to schedule examinations for discovery. 

Following these unsuccessful efforts to move the matter forward via diligent correspondence, Crystal requested a Case Conference, at which time the Court established a timeline for sworn affidavits of documents to be exchanged and for examinations for discovery to be completed.  When the plaintiff failed to meet the Court imposed deadlines, and attend the court mandated follow-up Case Conference, without explanation the motion to dismiss was requested. After hearing the motion on February 28, 2023, the Court granted a dismissal of the action for delay pursuant to Rule 24 as a result of the intentional and contumelious conduct of the plaintiff and his counsel throughout this matter, as well as a finding that the plaintiff and the plaintiff’s counsel were responsible for a delay that was determined to be inordinate and inexcusable. Partial costs were awarded.

In her ruling, Justice Fortier stated:

Since the action was commenced on June 18, 2018, almost five years ago, the plaintiff has not taken any steps to move this matter forward beyond the pleadings stage. On the other hand, the defendants have taken significant steps to move the proceeding forward, without success. Notably, the defendants sought the assistance of the court, scheduled case conferences and initiated examinations for discovery. The defendants engaged in frequent and persistent communication to plaintiff’s counsel to move the matter along, without success.

Thus, key to the successful dismissal of the claim was the detailed records of the consistent requests by the defendants to plaintiff counsel for documents and attempts at scheduling examinations for discovery, as well as the request by the defendants to the Court for assistance in moving the matter forward via court mandated timelines. While the claim was initiated by the plaintiff, and in law the plaintiff bears the responsibility for moving the case forward, the proactive steps by defence counsel in this action were beneficial and resulted in the eventual dismissal of the action and a cost award.

While the Courts in many instances are hesitant to deny plaintiffs their right to pursue an action and estop the matter from determination on its merits, this successful dismissal serves as a reminder to insurers and defence counsel of the importance of consistent and detailed communication even in the face of an unresponsive plaintiff counsel.