The Defendants (the executrix and the business) then moved for a dismissal of Darren’s Action under Rule 24.01(1) of the Rules of Civil Procedure, on the basis that there had been a lengthy and prejudicial delay in the proceedings. In September of 2019, Darren obtained an order that the Action could be continued against the executrix of both of his grandparents’ Estates. Gail died in January of 2018, and Albert died in January of 2019. Darren commenced the Action in March 2016. When Albert refused to acknowledge the gift of the business to his grandson, Darren brought an action against the business, his grandfather and his grandmother (Gail Gilbert) claiming that his grandparents held the business property in trust for him and for a declaration that he was entitled to a 100% beneficial interest in the corporation (the “Action”). Darren claimed that his grandfather, Albert, had promised Darren that: in exchange for Darren’s work at the company, Darren would eventually be given the business outright. In Levant, the Plaintiff, Darren Levant, alleged that he worked at a photography studio that was owned by his grandfather, Albert Gilbert, for many years for minimal pay. This is especially relevant in estate proceedings, where – with the passage of time – important witnesses could die or lose capacity, or other important evidence could be lost, which could create a risk that a fair trial is no longer possible. In such cases the Court can exercise its discretion to order the proceeding dismissed entirely on account of delay. Gilbert Studios Limited, 2020 ONSC 1528(“ Levant”) is an important reminder for litigants and their counsel to avoid unnecessary delays in proceedings, especially in cases where valuable evidence and/or witnesses may be lost due to the passage of time. In a March, 2020 ruling the Ontario Superior Court of Justice has ordered a plaintiff’s action to be dismissed because of an unreasonably long delay in the proceedings, which resulted in a substantial risk that a fair trial of the action was no longer possible.
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