What is the impact of the sophistication of the individual defendant on the determination of inherent prejudice in a motion?

Counsel for the plaintiff cited the decision of Huband J.A. in Pankhurst v. Matz, supra, where he found that in addition to the nature of the claim, the sophistication of the parties is germane in weighing the significance of inherent prejudice. In Pankhurst, the court determined that the case was a simple contract case where the only issue in dispute was the amount of the claim and that any deficiency in the plaintiff’s records or memory would only prejudice himself. As well, the court found that the individual defendant was a businessman used to commercial disputes and that if he had desired a quick resolution he could have taken the initiative and brought the matter on for determination rather than waiting on the plaintiff. In the result, the court held that the interests of justice required that the discretionary order of the motions judge, who had found no actual prejudice but an extremely long delay without satisfactory explanation, should it not stand. It should be noted that Philp J.A., in dissenting reasons, found that the interference of an appellant court in the exercise of a trial judge’s discretion should be limited to the “special case” or to “exceptional circumstances” to prevent an injustice being done, neither of which were found there. Furthermore, Philp J.A. was of the view that the motion judge’s findings of “extremely long delay” that “had not been satisfactorily explained” were irrefutable and it could not be said he had erred in principle by failing to take into account or failing to give weight to certain factors in these factual circumstances. For these reasons, he would have dismissed the appeal.