Executive Summary: Key Legal and Evidentiary Issues

• Long, inordinate delay of approximately 15 years after close of pleadings and repeated failure to move the action toward trial
• Persistent non-compliance with at least six interlocutory court orders, particularly regarding undertakings and production of documents
• Absence of a sworn affidavit of documents from the plaintiff, severely undermining documentary disclosure and trial readiness
• Ongoing prejudice to the defendant, including inability to retain experts and uncertainty whether responsive documentation even exists after the long passage of time
• Plaintiff’s failure, through her proposed litigation guardian, to meaningfully retain counsel or demonstrate concrete steps taken to comply with prior court directions
• Court’s exercise of its jurisdiction to dismiss the action for inordinate delay and breach of court orders, while declining to award costs given the plaintiff’s disability and the litigation guardian’s lack of sophistication

Factual background and nature of the claim

The case arises from a motor vehicle accident that occurred on January 28, 2008. The plaintiff, Roselyn Courtney, alleged that her vehicle was rear-ended by the defendant, Ronald Sprunt, while her car was at a complete stop. She claimed that this collision caused “a serious shock to her system together with a general tearing and straining of the muscles and ligaments throughout her body,” among other injuries. She sought significant damages, including $300,000 in general damages for pain and suffering and $500,000 in special damages for pecuniary loss. The statement of claim was issued exactly two years after the accident, on January 28, 2010, just within the two-year limitation period, and the defendant delivered his statement of defence and jury notice on August 19, 2010. From the outset, the claim was thus framed as a serious personal injury action seeking high-value damages based on alleged chronic physical impairment and its consequences. There is no discussion in the decision of insurance policy wording, contractual clauses, or specific coverage terms; the dispute before the court is procedural, centering on delay and compliance with court orders, not on the interpretation of any insurance or indemnity policy.

Early procedural history and first dismissal for delay

After the pleadings closed, the defendant served his sworn affidavit of documents on June 27, 2012. The plaintiff, however, never served a sworn affidavit of documents at any point in the litigation. In February 2013, the plaintiff’s first counsel, Misir & Company, obtained an order removing himself as lawyer of record. The order gave the plaintiff 30 days to appoint new counsel or serve a notice of intention to act in person. The plaintiff did not comply, and on March 1, 2013, the registrar dismissed the action for delay. Later that year, in December 2013, new counsel, Mr. Mostyn, came on the record for the plaintiff. On September 5, 2014, Associate Justice Graham granted a motion to set aside the registrar’s dismissal order. The court also ordered that the registrar not dismiss the action for delay prior to December 31, 2014, giving the plaintiff another opportunity to advance the case. On December 10, 2014, the plaintiff served a trial record, and at that point the case appeared to be moving forward toward a trial listing. This early sequence shows the first dismissal for delay being set aside and the court providing indulgence to permit the plaintiff to continue the action despite earlier inaction.

Steps toward trial and renewed difficulties

The plaintiff’s examination for discovery was completed on February 9, 2016, but the defendant was never examined. On March 18, 2016, the action was struck from the trial list. Around the same time, the plaintiff’s second counsel, Mr. Mostyn, obtained an order removing himself as lawyer of record on June 1, 2016. The plaintiff was again given time to appoint new counsel or file a notice of intention to act in person, with a warning that the action could be dismissed or struck if she failed to do so. The order also stipulated that the action would be struck from the trial list without further notice if pre-trial and trial dates were not obtained by November 30, 2016. The plaintiff served a notice of intention to act in person on July 27, 2016, but did not secure the required pre-trial and trial dates by the November 2016 deadline. In early 2018, despite the plaintiff’s limited activity, the defendant’s counsel requested a mediation, which took place on April 10, 2018. Later that year, the defendant brought a motion to dismiss the action for delay and the parties appeared before various judges for scheduling and procedural directions. The plaintiff repeatedly sought adjournments, often citing the need to obtain new counsel, but did not successfully do so.

Second dismissal episode and conditional reinstatement

On December 12, 2018, the defendant’s dismissal for delay motion came before Associate Justice McGraw. No one appeared for the plaintiff, and the associate justice dismissed the action for delay. In early 2019, the self-represented plaintiff moved to set aside that dismissal order, arguing that she had not received notice of the prior motion despite evidence that notice had been sent to the address she herself had provided. Justice Chalmers heard the motion on February 27, 2019. He reviewed the procedural history and noted that the plaintiff had failed to move the matter forward promptly, had not obtained new counsel after serving her notice of intention to act in person in July 2016, had not answered undertakings from her examination for discovery in February 2016, and had not filed responding materials for the November 2018 dismissal motion. Nonetheless, Justice Chalmers concluded that there had not yet been a full hearing on the merits of a delay dismissal motion with the plaintiff present, and he gave the plaintiff “one last chance” to argue the issue. He ordered that the defendant schedule the dismissal for delay motion, that the plaintiff serve her materials before the new date, and that the new date be peremptory to her. The motion was then heard by Associate Justice McGraw on May 24, 2019. In his June 14, 2019 endorsement, he found the delay inordinate but noted that some meaningful steps had been taken: documentary discovery, mediation, and examination for discovery. He declined to dismiss the action but only on strict terms designed to ensure the plaintiff would move the case forward promptly. Those terms required the plaintiff to: deliver answers to all outstanding undertakings and/or evidence of best efforts, and deliver additional relevant documents by September 30, 2019; and obtain pre-trial and trial dates on or before October 31, 2019. These conditions formed a clear, time-limited roadmap for bringing the action to readiness.

Ongoing case management, undertakings, and repeated non-compliance

Despite the clear terms set out in mid-2019, the plaintiff did not fully comply. Although she later obtained an order in November 2019 restoring the matter to the trial list, Associate Justice McGraw expressly carried forward his earlier conditions about undertakings and trial preparation. Multiple case conferences followed in 2020 and 2021 before Associate Justice McGraw to address the plaintiff’s continuing failure to fulfill undertakings and produce documents. At one stage, about 30 undertakings remained outstanding and the plaintiff believed former counsel, Mr. Mostyn, might hold some of the needed documentation. The associate justice directed that the plaintiff’s son, Mr. Courtney, who was assisting her, request an itemized list of documents and disbursement details from former counsel, share relevant files with the defendant, and cooperate in identifying additional medical records required by the defence. Mr. Mostyn later attended a conference, asserted a solicitor’s lien over the file, and was ordered to list the plaintiff’s files in his possession. Even as these issues were partly addressed, a large number of undertakings remained outstanding. In April 2021, 26 of 30 undertakings were still not answered. The court granted further time for the plaintiff to review files, respond to undertakings, consider retaining counsel, and set the action down for trial. In May 2021, the plaintiff advised that she had retained new representation in the form of a paralegal, Mr. McKoy. Over the next months, he requested more time to review the file and was ordered to provide additional records by August 4, 2021. By a case conference held on October 28, 2021, numerous undertakings still remained outstanding. Associate Justice McGraw emphasized that the plaintiff should have delivered answers to undertakings and obtained pre-trial and trial dates back in 2019, more than three years earlier. Despite repeated extensions and detailed directions, the underlying disclosure work and scheduling steps were not completed. In another order, the associate justice again directed the plaintiff to provide further documents and take steps by January 17, 2022, to obtain a pre-trial date. Those steps were not taken either.

Capacity issues and appointment of a litigation guardian

As the defendant continued to press for answers and move toward another dismissal motion, the plaintiff’s paralegal, during a 2023 hearing, raised for the first time a potential issue regarding the plaintiff’s mental capacity. The dismissal motion, scheduled for February 14, 2023 and later adjourned to May 11, 2023, was again adjourned so the capacity issue could be addressed. The plaintiff’s son, Mr. Courtney, indicated that he was prepared to act as litigation guardian. However, no formal steps were initially taken to appoint him. Eventually, a motion to appoint a litigation guardian proceeded before Associate Justice McGraw. On September 27, 2023, he granted an order appointing Mr. Courtney, but made the appointment conditional on the form of order being filed for review and approval, and directed that Mr. Courtney had until November 27, 2023, to retain counsel. No order was formally taken out, and no counsel was retained by that deadline. On April 30, 2024, Associate Justice McGraw declined to sign an order formally appointing Mr. Courtney until he had retained counsel, effectively leaving the plaintiff’s status unresolved. It was in this context that the Public Guardian and Trustee was later served, and a judge, rather than an associate justice, became seized of the dismissal motion due to the plaintiff’s status as a party under disability. The matter ultimately came before Brownstone J. after a further case conference and scheduling order by Glustein J. in June 2025.

Governing legal principles on dismissal for delay

Justice Brownstone began by setting out the governing Rules of Civil Procedure and key case law on dismissal for delay. Rule 24.01 permits a defendant who is not in default to move to dismiss an action where the plaintiff has failed to set it down for trial within six months after the close of pleadings, and Rule 24.01(2) requires the court to dismiss where certain delay circumstances exist unless the plaintiff shows that dismissal would be unjust. Related provisions in Rule 48.14 govern administrative dismissal by the registrar when an action has not been set down or terminated by the fifth anniversary of its commencement, with an exception for plaintiffs under disability. The decision also canvassed the established common law test from Woodheath Developments Ltd. v. Goldman and subsequent Court of Appeal authorities. In summary, an action may be dismissed for delay where: the default is intentional and contumelious (reflecting disdain for the court’s process); or there has been inordinate and inexcusable delay, attributable to the plaintiff or counsel, that gives rise to a substantial risk that a fair trial is not possible. Courts presume prejudice from inordinate delay; that presumption can only be rebutted by convincing evidence that documents have been preserved and that the issues do not depend on fading memories, or that the necessary witnesses still have detailed recollections. Even if the rules do not mandate dismissal, the court retains inherent jurisdiction to prevent abuse of process and, when “enough is enough,” to dismiss actions for inordinate and inexplicable delay. Rule 60.12 also authorizes dismissal when a party fails to comply with interlocutory orders. These principles framed the assessment of whether the plaintiff’s pattern of conduct warranted terminating the action.

Application of the law to the prolonged delay and non-compliance

Applying these principles, Justice Brownstone focused on the extensive chronology and the plaintiff’s continued non-compliance. As of the hearing in January 2026, 27 of 29 undertakings remained outstanding, despite repeated orders, case conferences, and correspondence from defence counsel. The records identified in earlier endorsements—including those set out in Associate Justice McGraw’s December 16, 2020 directions—had still not been produced. The plaintiff had failed to comply with six separate court orders. No adequate explanation was provided, beyond Mr. Courtney’s assertion that he had been unable to secure counsel and lacked the ability to comply without legal assistance. The court found there was no evidence of concrete steps taken to retain counsel or to move toward compliance, apart from bare assertions. The plaintiff had never delivered a sworn affidavit of documents, even though almost 15 years had elapsed since the close of pleadings and more than five years since the matter had been restored to the trial list. In contrast, the defendant had complied with his obligations, including serving his affidavit of documents, attending mediation, and repeatedly attempting to move the file forward. The court concluded that the plaintiff had not rebutted the presumption of prejudice arising from the inordinate delay. The defendant’s ability to defend the case was significantly compromised: he had been unable to retain experts due to the lack of documentation, and it was uncertain whether the documents needed to answer the undertakings still existed given the long passage of time since the accident. The court recognized the general preference to decide cases on their merits, especially in personal injury matters, but emphasized that this is a preference, not an absolute rule. Fair and efficient administration of justice requires that parties obey court orders and prosecute their claims within a reasonable time, particularly where repeated indulgences and clear directions have been given. In this case, those limits had been reached.

Final ruling, outcome, and costs

In light of the inordinate delay and repeated non-compliance with interlocutory orders, Justice Brownstone ordered that the plaintiff’s action be dismissed. The dismissal was grounded both on the lengthy, unjustified delay and on the plaintiff’s sustained failure to comply with multiple court orders, bringing the case squarely within Rule 24.01, Rule 60.12, and the court’s inherent jurisdiction to prevent abuse of process. On the issue of costs, the defendant sought more than $40,000 on a partial indemnity basis. The court noted that defence counsel had not meaningfully discussed potential cost consequences with Mr. Courtney and that the cost request seemed to come as a complete surprise to him. The plaintiff was a party under disability and Mr. Courtney, effectively acting as litigation guardian, was plainly unfamiliar with court processes and their financial implications. The court observed that, had a candid conversation occurred about possible costs, the parties might have found a resolution short of a contested motion. In these circumstances, and mindful of fairness to a disabled party and a lay litigation guardian, the court declined to award any costs. The action was therefore dismissed, but without costs. As a result, the successful party in the proceeding is the defendant, Mr. Sprunt, whose motion to dismiss for delay was granted. No monetary damages or cost award were ordered in his favour, and the total amount awarded cannot be determined because the court expressly declined to make any costs order and did not grant any financial remedy.