Court to use a contextual approach in deciding whether to set aside a dismissal order

Finlay v. Van Paassen 2010 ONCA 204 (C.A.)

In this motor vehicle accident which occurred in October 2003, the Statement of Claim was issued in October 2004 and pleadings and discoveries were completed by September 2005. In January 2007 the registrar issued a Status Notice indicating that the action would be dismissed unless it was set down for trial within 90 days. Unfortunately, the Status Notice was not sent to the plaintiff. On April 30, 2007, unbeknownst to the plaintiff, the registrar issued an Order dismissing the action for delay. Plaintiff’s counsel first obtained a copy of the registrar’s Order in mid May 2007; however, no action was taken to set aside the Order until 2009.

The motion’s judge refused to set aside the dismissal Order, using the 4 factors cited by the Court of Appeal in Marche D’Alimentation Denis Theriault Ltee v. Giant Tiger Stores:

1. Explanation of the litigation delay;
2. Inadvertence in missing the deadline;
3. The motion is brought promptly;
4. No prejudice to the defendant.

For the motions judge, the third factor was decisive. He held that a delay of two years in bringing the motion was not an acceptable way of dealing with the circumstances.

The Court of Appeal held that the judge erred in taking two rigid an approach to the criteria. Instead, the Court should use a contextual approach in which the Court weighs all relevant considerations to determine a just result. The Court of Appeal allowed the appeal and set aside the registrar’s Order.

This decision appears to make it very difficult for defence counsel to succeed in opposing a motion to set aside a registrar’s dismissal Order. The Court is concerned with not allowing an innocent client to suffer the loss of the right to proceed by reason of the inadvertence of his/her solicitor.

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