No Putting Off Until Tomorrow: Ontario Court of Appeal Again Unwilling to Tolerate Delay, this time for Applications

The Ontario Court of Appeal continues its effort to combat delay. In Arapakota v. Imex Systems Inc.[1], the Court upheld a decision dismissing an application – not an action – where there had been a delay of nearly five years.
The decision extends the Court’s intolerance for delay to applications, while highlighting that even self-represented plaintiffs are expected to move their cases forward efficiently – particularly where they choose a route intended to expedite adjudication.
The Court in Arapakota found that inordinate delay may be calculated as a case approaches its fifth anniversary[2] (i.e. it does not have to be five years or more), and that prejudice arises from a finding of inordinate delay.[3]
Although not explicit, this approach follows the recent Ontario Court of Appeal decision in Barbiero v. Pollack[4], which found that that the “Langenecker test”[5] needed to be updated. In doing so, the Court in Barbiero held that delay alone is sufficient to show prejudice.[6]
The Court in Arapakota accepted the application judge’s contextual approach to dismissal for delay. A contextual approach was also endorsed by the Court of Appeal in the recent case of Tataryn v. Diamond & Diamond Lawyers LLP[7], although that case considered the statutory basis for dismissal pursuant to the Class Proceedings Act[8], rather than dismissal pursuant to the Court’s inherent jurisdiction.[9]
In addition to following the Court’s growing guidance on dismissal for delay, Arapakota appears to narrow the circumstances where delay will be permitted. The Court agreed that a delay of almost five years was sufficient to find inordinate delay.[10] The Court accepted that the delay was unjustified due, in part, to the appellants’ decision to proceed by way of application on the Commercial List, two avenues whose very purpose gives way to an expectation that matters will be advanced expeditiously.[11]
Background
The appellants brought their application on July 13, 2018 (the “Application”) alleging that oppressive acts by former shareholders and directors of Imex Systems Inc. caused personal and financial losses to Damodar Arapakota and his family’s trust.[12]
The Application was originally scheduled for a hearing on October 15, 2018, but the hearing was adjourned. The Application was then left lingering until June 2, 2023 when the appellants requested an appointment to set a timetable.[13] The respondents brought their motion to dismiss for delay on August 21, 2023.
Motion Judge’s Decision
The Honorable Mr. Justice Cavanagh granted the respondents’ motion, noting the inherent jurisdiction of the Court to dismiss a proceeding for delay. Justice Cavanagh dismissed the Application for delay on the basis that there was inordinate delay and that the delay was inexcusable.[14] Justice Cavanagh accepted that the respondents had been prejudiced by the delay and determined that the appellants had failed to rebut that prejudice.[15]
Court of Appeal Decision
The appellants, represented in person by Mr. Arapakota, appealed the dismissal of the Application. The issues on appeal were: (i) whether the motion judge erred in granting the respondents’ motion to dismiss the Application for delay; and (ii) whether the appellants’ fresh evidence should be admitted.[16] The Court of Appeal rejected that the motion judge erred and dismissed the appellants’ motion to admit fresh evidence. In the result, the Court dismissed the appeal.[17]
The Court found no error in the motion judge’s decision, agreeing that the Court has an inherent right to dismiss a proceeding for delay[18] and confirming that this inherent right applies whether the proceeding is an action or an application.[19]
The Court then confirmed the test applied by the motion judge, and stated the following:
[13] An order dismissing a proceeding for delay will be justified where the delay is inordinate, inexcusable, and prejudicial to the respondents in that it gives rise to a substantial risk that a fair determination of the issues will not be possible: Langenecker v. Sauvé, 2011 ONCA 803, 286 O.A.C. 268, at paras. 4-7.
In upholding the motion judge’s conclusion that the delay was inordinate and inexcusable, the Court accepted a contextual approach to justifying dismissal.[20] In determining inordinance, Justice Cavanagh had used the five year limit for setting down an action for trial under the Rules of Civil Procedure as a starting point, then further reasoned that the Application required a more efficient resolution given the procedural choices made by the appellants.[21]
The contextual framework analyzed by Justice Cavanagh also supported a finding that the delay was inexcusable.[22] On appeal, the Court found that this approach was appropriate. Having reached the conclusion that the delay was inordinate and inexcusable, the Court found that Justice Cavanagh had properly found that there was a presumption of prejudice arising from that delay.[23] The Court found no error in Justice Cavanagh’s conclusion that the appellants had failed to rebut that presumption.[24]
The Court found that the decision to dismiss the Application was made by balancing the challenges faced by self-represented litigants and the importance of promoting access to justice.[25] Other participants in the justice system owe a responsibility to assist self-represented litigants in a way that ensures fairness. But self-represented plaintiffs also assume a responsibility to move the litigation forward. The appellants had made a choice to prioritize other legal proceedings in which they were involved; this was not a reasonable explanation for the delay and did not fulfill their responsibility to move the Application forward.[26]
Appellants Fresh Evidence Motion
The appellants also brought a motion to admit fresh evidence as part of their appeal. This motion was denied. The appellants failed to satisfy the first part of the test for the admission of fresh evidence by failing to show that the document they sought to admit could not have been produced earlier by the exercise of due diligence.[27] The Court further noted that, even if the appellants had shown that they could not have obtained the document in time for the hearing of the motion to dismiss, the evidence would not have rebutted the presumption of prejudice. Therefore the fresh evidence, even if admitted, would not have affected the outcome on the motion to dismiss.[28]
Takeaway
The Court of Appeal, while applying the principles of Langenecker v. Sauvé[29] to uphold dismissal in this case, appears to accept and apply the principles as altered by the Court’s decision in Barbiero, finding that the passage of time itself leads to a presumption of prejudice.[30] The Court also upheld the motion judge’s determination that the delay was inordinate, using the five year limit of Rule 48.14(1) as a starting point for determining inordinance,[31] a threshold suggested by the Court in Barbiero.[32]
The Court’s acceptance of a contextual analysis appears to follow the contextual approach promoted by the Court in Tataryn v. Diamond & Diamond Lawyers LLP.[33] Although Tataryn considered dismissal pursuant to section 29.1(1) of the Class Proceedings Act, the statutory purpose of section 29.1(1) – avoiding the injustice caused by delay – is equally reflected in broader efforts seeking to combat delay.[34]
This case continues the Court’s efforts to move away from permissive “judge-created rules or interpretative glosses” that do not promote, and sometimes hurt, the “prompt judicial resolution of legal disputes”[35] toward a culture that holds plaintiffs responsible for moving cases forward. This is particularly so where parties have availed themselves of procedures intended to move at greater speed and efficiency. Relying on the Court’s inherent right to dismiss for delay attracts a contextual analysis; context will necessarily include that the parties have chosen to proceed by way of application.
[1] 2025 ONCA 367.
[2] Arapakota v. Imex Systems Inc., 2025 ONCA 367 at para. 22.
[3] Arapakota v. Imex Systems Inc., 2025 ONCA 367 at para. 24.
[4] Barbiero v. Pollack[4], 2024 ONCA 904.
[5] Langenecker v. Sauvé, 2011 ONCA 803.
[6] Barbiero v. Pollack, 2024 ONCA 904 at paras. 15 and 22.
[7] Tataryn v. Diamond & Diamond Lawyers LLP[7], 2025 ONCA 5.
[8] Class Proceedings Act, 1922, S.O. 1992, c. 6.
[9] Tataryn v. Diamond & Diamond Lawyers LLP, 2025 ONCA 5 at para 49.
[10] Arapakota v. Imex Systems Inc., 2025 ONCA 367 at para. 24.
[11] Arapakota v. Imex Systems Inc., 2025 ONCA 367 at para. 22.
[12] Arapakota v. Imex Systems Inc., 2025 ONCA 367 at para. 6.
[13] Arapakota v. Imex Systems Inc., 2025 ONCA 367 at para. 8.
[14] Arapakota v. Imex Systems Inc., 2025 ONCA 367 at para. 16.
[15] Arapakota v. Imex Systems Inc., 2025 ONCA 367 at para. 16.
[16] Arapakota v. Imex Systems Inc., 2025 ONCA 367 at para. 10.
[17] Arapakota v. Imex Systems Inc., 2025 ONCA 367 at para. 3.
[18] Arapakota v. Imex Systems Inc., 2025 ONCA 367 at para. 11.
[19] Arapakota v. Imex Systems Inc., 2025 ONCA 367 at para. 12.
[20] Arapakota v. Imex Systems Inc., 2025 ONCA 367 at para. 16
[21] Arapakota v. Imex Systems Inc., 2025 ONCA 367 at para. 22.
[22] Arapakota v. Imex Systems Inc., 2025 ONCA 367 at para. 23.
[23] Arapakota v. Imex Systems Inc., 2025 ONCA 367 at para. 24.
[24] Arapakota v. Imex Systems Inc., 2025 ONCA 367 at para. 26.
[25] Arapakota v. Imex Systems Inc., 2025 ONCA 367 at para. 27.
[26] Arapakota v. Imex Systems Inc., 2025 ONCA 367 at para. 27.
[27] Arapakota v. Imex Systems Inc., 2025 ONCA 367 at para. 33.
[28] Arapakota v. Imex Systems Inc., 2025 ONCA 367 at para. 34.
[29] Langenecker v. Sauvé[29] 2011 ONCA 803
[30] Arapakota v. Imex Systems Inc., 2025 ONCA 367 at para. 14 and Barbiero v. Pollack, 2024 ONCA 904 at para 15.
[31] Arapakota v. Imex Systems Inc., 2025 ONCA 367 at para. 22.
[32] Barbiero v. Pollack, 2024 ONCA 904 at para 22.
[33] Tataryn v. Diamond & Diamond Lawyers LLP, 2025 ONCA 5 at para. 49.
[34] See e.g., Hryniak v. Mauldin, 2014 SCC 7 (S.C.C.) at para. 25; Barbiero v. Pollack, 2024 ONCA 904 at para. 14.
[35] Barbiero v. Pollack, 2024 ONCA 904 at para. 12.
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