In Erland v. R.W. Tomlinson Ltd. et al., the plaintiff claim’s for injunctive relief and damages for the flooding of his land was initially dismissed for delay at a status hearing by Justice MacLeod, as the plaintiff had not set the action down for Trial within 5 years of the commencement of the action pursuant to the new Rule 48.14 of the Rules of Civil Procedure. In dismissing the plaintiff’s claim, Justice MacLeod held that the explanation a plaintiff must provide under the new Rule 48.14 may have to be more robust than under the old Rule 48.14. Justice MacLeod held that the plaintiff had not provided an adequate explanation for the delay. The plaintiff’s failure to properly respond to a disclosure order was specifically considered. The plaintiff appealed Justice MacLeod’s decision largely on the basis that the judge applied too harsh a test. Justice Paciocco, writing on behalf of the panel at the Ontario Court of Appeal, upheld Justice MacLeod’s decision and dismissed the plaintiff’s appeal. It was held that Justice MacLeod did not err in law or principle in dismissing the plaintiff’s claim. The Court of Appeal ordered costs of the appeal to the defendant in the amount of $10,000.
The defendant, R.W. Tomlinson Ltd., was represented on appeal by Bell Temple partner, Derek V. Abreu, and associate, Trevor J. Buckley.