Ontario Civil

Civil Procedure

Want of prosecution

Motion judge erred in assessment of prejudice

Plaintiffs brought action related to slip and fall of plaintiff at border crossing plaza. After plaintiffs’ counsel’s staff inadvertently failed to request status hearing from court registrar dismissed action. More than two years went by before plaintiffs brought motion to set aside registrar’s dismissal order. Motion judge refused to set aside dismissal order, finding that defendants were significantly prejudiced by plaintiffs’ delay. Plaintiffs appealed. Appeal allowed; action reinstated. Motion judge erred in her assessment of prejudice, which was at heart of her decision to dismiss plaintiffs’ motion. Motion judge’s findings of prejudice to defendants did not arise from plaintiffs’ delay but from factors either pre-dating any delay or stemming from defendants’ failure to take appropriate steps to alleviate prejudice. Motion judge’s error concerning prejudice played essential part in reasoning process that led her to dismissal of plaintiffs’ motion. Without finding of prejudice, contextual analysis resulted in conclusion that order be set aside. Factor of delay by itself was not sufficient in circumstances to deny plaintiffs’ request to reinstate action. There was no evidence that delay was product of deliberate decision not to take steps in proceedings. Present case was not instance where finality must trump preference of having action heard on its merits.

Labelle v. Canada (Border Services Agency) (Mar. 7, 2016, Ont. C.A., John Laskin J.A., G. Pardu J.A., and L.B. Roberts J.A., CA C60307) Decision at 254 A.C.W.S. (3d) 558 was reversed. 264 A.C.W.S. (3d) 86.

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