Executive Summary: Key Legal and Evidentiary Issues

• Plaintiff sought to set aside an administrative dismissal of its claim for delay under Rule 48.14(1) of the Ontario Rules of Civil Procedure.

• The court applied the Reid factors to assess whether the dismissal should be overturned.

• Plaintiff conceded to inadvertence by prior counsel but blamed some delays on defendant's conduct.

• Defendant argued there was no justification for several years of inactivity and claimed prejudice due to a missing witness.

• The court found no evidence of deliberate delay or actual prejudice to the defendant.

• Motion to reinstate the action was granted, but the plaintiff was ordered to pay costs to the defendant.

Factual background and procedural history

The plaintiff, M.O.S. Enterprises Ltd., initiated a lawsuit in January 2018 seeking over $5 million in damages, alleging that defective seeds sold by the defendants, including Monsanto Canada Inc., caused a crop failure. After years of procedural inactivity, the case was administratively dismissed on March 12, 2025, under Rule 48.14(1), which mandates dismissal if an action is not set down for trial within five years of commencement.

M.O.S. Enterprises brought a motion to set aside the dismissal, attributing the delay primarily to inadvertence by prior counsel and some procedural resistance by the defence. The procedural record showed periods of inaction by the plaintiff, but also noted that Monsanto did not serve its affidavit of documents until March 2021 and took no steps to reschedule key discovery after cancelling a representative’s examination.

Examinations for discovery had begun in June 2023 but were left incomplete after Monsanto declined to produce its representative without receiving an expert report referenced by the plaintiff. Although the report was eventually provided in April 2024, no further discovery steps were taken before the action was dismissed.

Court’s analysis and application of the law

The court applied the four Reid factors to determine whether the dismissal should be set aside: explanation for the delay, evidence of intent to prosecute, promptness in bringing the motion, and prejudice to the defendant. Justice Kalajdzic acknowledged that while the plaintiff bore primary responsibility for the delay, there was also inaction on the part of the defendant. She noted that although the plaintiff had not provided robust evidence of intent to prosecute, there was no indication of intentional delay.

Regarding prejudice, the defendant argued that a key employee had retired and could not be located. The court disagreed, reasoning that the employee had retired early in the litigation and could have been contacted earlier. Moreover, other relevant witnesses were still available, and the missing employee had not made the alleged misrepresentations at the heart of the case.

Outcome and order

The court ruled in favor of M.O.S. Enterprises Ltd. and granted the motion to set aside the administrative dismissal. A timetable was imposed to bring the matter to trial efficiently, including deadlines for completing discovery, mediation, and setting the action down for trial. However, due to the plaintiff’s conduct leading to the dismissal, Monsanto was awarded $6,500 in costs on a partial indemnity basis, payable within 30 days.