Case information

Civil procedure — Delay — Motion to dismiss application for delay — Treatment of self represented litigants — What is the principled framework for dismissing an application (as opposed to an action) for delay, and when — if ever — should the five-year presumption of prejudice be imported wholesale into application proceedings? — How should the Canadian Judicial Council principles inform the assessment of “inexcusable delay” and “prejudice” where a self-represented party’s delay is materially tied to overlapping regulatory/civil/criminal proceedings and resource constraints? — In a document-heavy corporate governance dispute, how should courts calibrate the prejudice inquiry between documentary availability and fading recollections, and which party bears what burden regarding a dismissal-for-delay motion? — When a motion judge applies the wrong legal framework, is deference for discretionary orders displaced by correctness review on those legal questions?

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

In July 2018, the applicants, Damodar Arapakota and the Arapakota 2006 Family Trust, filed an application containing allegations against the respondents, Krishnasamy Parthiban, Andrew Lindzon, Issa Nakhleh and Robert Saltsman. The respondents were directors and/or shareholders of Imex Systems Inc., which was founded by Mr. Arapakota, who served as its Chief Executive Officer until his resignation in February 2018. The applicants alleged that the respondents committed oppressive acts that caused Mr. Arapakota and his family substantial personal and financial losses. In August 2023, the respondents brought motions to dismiss the application for delay. The motion judge found the delay to be inordinate, inexcusable, and prejudicial to the respondents, creating a substantial risk that a fair hearing would no longer be possible. The motion judge therefore granted the motions and ordered the applicants to pay costs to the respondents in relation to the application and the motions. The applicants appealed the decision, but the Court of Appeal for Ontario found no error and dismissed the appeal with costs.