Brotherly Brothels, Delays, and Access to Justice: Ticchiarelli v Ticchiarelli

Process and procedure within our justice system have been an interest of mine since I first stepped foot into Osgoode Hall Law School almost three years ago. Understanding the way the judicial system works in Ontario and Canada at large is an important part of a well-rounded law school education. Efficiency and timeliness have been ideals of our justice system for quite some time now. There is a need for a system that runs smoothly and without delay. This system, in turn, arguably increases access to justice for the public because it prevents backlogs from occurring. These ideals must be balanced against allowing adequate time for the process to unfold, as well as not favouring a trial that is speedy over one that is just.

Disputes between family members are not uncommon within the common law, as is the case in Ticchiarelli v Ticchiarelli2017 ONCA 1 (CanLII) [Ticchiarelli]. This case begins with a dispute over the ownership of the shares of a company in Ontario. The case turns on brother 1 not commencing his action against brother 2 (along with the uncle and the estates of cousins, etc.), until more than seven and a half years after the relevant events at issue.

The motion judge described the filing of brother 1’s affidavit as a “reasonable dispatch,” signalling the commencement of the action. However, many years of inactivity followed. Even when a second lawyer was retained after this dormancy, another four years of inactivity persisted. Following some failed and cancelled mediations, the defendant brother 2 moved to dismiss the action on the grounds of delay, after a jaw-dropping eleven-year period.

In this case, the court was tasked with assessing whether the motion judge’s dismissal for delay was warranted. The test that was used comes from Langenecker v Sauvé, 2011 ONCA 803 (CanLII) [Langenecker]: “an order dismissing an action for delay will be justified where the delay is inordinate, inexcusable, and prejudicial to the defendants in that it gives rise to a substantial risk that a fair trial of the issues will not be possible” (Langenecker, paras 4-7).

Jurisdiction for a court to dismiss an action is granted from either: (1) rule 24.01 of the Rules of Civil Procedure, RRO 1990, Reg 194, or (2) through the inherent jurisdiction that a court has to prevent an abuse of its own process. The court noted that: “the motion judge’s order dismissing this action for delay is a discretionary order. It is entitled to deference from this court and will not be interfered with unless the motion judge exercised his or her discretion unreasonably or acted on a wrong principle” (Ticchiarelli, para 14). Finally, the court elegantly phrased all three parts of the test for establishing the dismissal of an action. Some key highlights for establishing a dismissal of action on the grounds of delay include:

  • Inordinance: The court noted that inordinance is observed by looking at the length of time from the beginning of the proceeding.
  • Inexcusable delay: to establish this element, the court must focus on examining the reasons for the delay and whether those reasons are adequate (including explanations that are said to be “reasonable and cogent” or “sensible and persuasive”). This will be considered in light of the individual parts of the delay, as well the delay and its effects in general. If these explanations are seen to be valid, the delay can be excused and the action would not be dismissed accordingly.
  • Prejudice to fair trial rights: Lastly, the element of prejudice to a fair trial is established when the delay caused prejudice to the defendant in that “it creates a substantial risk that a fair trial of the issues will not be possible” (Ticchiarelli, para 28).

The court held that the motion judge did not err in dismissing the action on the grounds of delay and noted that the judge did not incorrectly apply any parts of the test (the first part was conceded, but the other two were established by the motion judge). The motion judge made his decision on the basis of rule 24.01 of the Rules of Civil Procedure, along with the court’s inherent jurisdiction to dismiss the action, which was reaffirmed by the Court of Appeal in this case. The most significant point made by Justice LaForme was as follows:

Clearly, the motion judge was of the opinion that the civil justice system could no longer tolerate the inordinate and inexplicable delay in this case. His view on the record before him was that the time had come when enough was enough. The record certainly supports the motion judge’s conclusion and I cannot say it was unreasonable (Ticchiarelli, para 40).

Access (to justice) denied?

Some may argue that not allowing a claim to proceed because of delay brings injustice to the person who brought the claim, but there has to be a boundary that is drawn to prevent the system from falling apart from within. This case highlights the fundamental tension between the rule of law and functionalism. On the one hand, exercising discretion to deny relief where there has been improper action creates the danger of allowing the illegal conduct to continue, and on the other hand, there could be an inconsistent exercise of discretion by the courts. We use principles, factors, and frameworks that are made available as the common law develops to deal with the diverse set of complexities in a way that allows for flexibility and precision; but this has to be done with the utmost elegance and caution.

It is interesting to note that the final element in the test required to establish a dismissal of an action on the grounds of delay—prejudice to a fair trial—is aimed at the defendants in the case, and does not require that the judge consider the effects that a delay has on legal system as a whole. The public policy aspect of allowing a claim that takes eleven years to progress has rippling implications within our justice system and should potentially be considered within the test of allowing for dismissal due to delay. This will give judges a more comprehensive perspective to the issue at hand, allowing for a better exercise of their discretion.

The words articulated by Justice LaForme present a type of truth of which the current legal system is in dire need. There are an endless number of cases in which a person’s access to justice is hindered precisely because the system is being used and abused. The safeguards that are put in place, such as the ability to dismiss a claim because of delay, serve as reminders that the system will only work if we are able to ensure that everyone uses them justly. Cases like these are a good reminder to those who read them—lawyers and non-lawyers alike—to be efficient in bringing claims and to navigate the system in the way it was designed to be used.

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