An Ontario judge has tossed a $4 million fire insurance claim against Intact and a broker, citing more than 11 years of plaintiff delay.
The decision in Liu v. Intact, 2026 ONSC 3090, released May 26, 2026, dismisses the action under Rule 60.12 of the Rules of Civil Procedure, for failure to comply with an interlocutory order, and Rule 24.01, for delay. The decision is a procedural win for insurer and broker defendants on this file.
The underlying fire occurred on September 27, 2013, at the plaintiffs' Toronto premises. Wei Ping Liu and 2037812 Ontario Inc., operating as Wei Fung Fruit Co., issued a Statement of Claim on September 26, 2014, seeking $4,000,000 in damages. Intact Insurance Company was alleged to have insured the property. Anthony Tsang Insurance Brokers Inc. and its agent George Leung were alleged to have sold the policy.
The court reviewed the timeline of the action in detail. Examinations for discovery took place in January 2018. A pre-trial conference followed on October 30, 2020. In 2021, Intact brought three motions tied to the appraisal process under section 128 of the Insurance Act, after the plaintiffs failed to appoint an appraiser and the plaintiffs' appraiser subsequently failed to appoint an umpire. The action was removed from the trial list in November 2021 on consent of all parties, with no explanation from the plaintiffs as to why a scheduled trial could not proceed.
A July 30, 2024 order from McCarthy J. set out a fresh timetable, including deadlines to pay outstanding costs orders, restore the action to the trial list, and exchange expert reports. The plaintiffs paid two of three outstanding costs orders to Intact on August 15 and 16, 2024, then went quiet on the remainder of the timetable.
The broker defendants moved to dismiss. Their motion was heard March 6, 2026, more than 11 years after the claim was issued.
Associate Justice Mak found roughly 110 to 111 months - over nine years - of unexplained delay. Plaintiffs' counsel cited inadvertence in failing to bring a motion to restore the action to the trial list. The court was unmoved, holding that "inadvertence is not an adequate explanation" given the multiple reminders the defendants had provided.
The court also said it was unable to conclude, on the record before it, that key documents had been preserved, and found the record did not include evidence that key witnesses were available. Mr. Liu's affidavit ran to 12 short paragraphs with no exhibits attached. No expert appraisal evidence appeared in the record despite the 2021 appraisal orders. At cross-examination, Mr. Liu could not recall basic details such as when the action was commenced or when it was struck from the trial list.
Citing Gutcher v. Welland Retirement Suites Ltd., 2026 ONCA 273, the court held that the passage of time alone can constitute prejudice.
The plaintiffs' cross-motion to restore the action to the trial list and reset the timetable was dismissed. Costs submissions are to follow.
The court acknowledged that dismissal for delay is a severe remedy that denies plaintiffs an adjudication on the merits. It found the delay was prejudicial because it gave rise to a substantial risk that a fair trial of the issues would not be possible, and separately found that the 11-year delay was of such length that it could, on its own, constitute prejudice.
