Personal injuries action to proceed to trial where defendant’s conduct contributed to delay

Defendant’s application to dismiss proceedings for delay – inordinate and excusable delay – balance of justice – accident occurred in 2006 – proceedings issued 2009 – defence filed in 2009 and not the verifying affidavit – plaintiff’s notice of intention to proceed in 2019 – defendant arranged to have the plaintiff medically assessed – plaintiff avers that on both occasions he attended but the doctor did not show – joint engineering inspection in 2009 – location of the accident closed in 2009 and location manager working at the time of the accident no longer works for the defendant – prejudice it will suffer by reason of the delay – submitted that the case is not a documents case – ten year delay inordinate – defendant’s delay in swearing and filing verifying affidavit is relevant to the balance of justice but not excusatory of the plaintiff’s delay – prejudice – delay or conduct amounting to acquiescence – whether the plaintiff has been induced by the defendant’s conduct to incur further expense in pursuing the action – fifteen years since the date of the accident – concerns about memory of witnesses not averred to on affidavit – some of the defendant’s case will be based on documentation still available – accident report form and engineer report – defendant made no efforts to take statements from its witnesses – appropriate steps could have been taken to ensure the witnesses they intended to call would be available for trial and would have the opportunity to refresh their memory – no evidence of the delay having caused any specific prejudice to the defendant – pandemic cannot be blamed for the delay in bringing the motion to dismiss – defendant’s conduct in their delay and acquiescence can be taken into account – matter is very close to being ready for trial – court is satisfied that the balance of justice lies in favour of allowing the plaintiff to proceed to trial – motion to dismiss on grounds for delay is refused.