Claim reinstated against Thunder Bay as judge says late filing didn’t significantly prejudice city
Upon finding that the inadvertence of counsel of an injured bus passenger led to the delay in setting down her action, the Ontario Superior Court set aside an order dismissing her claim for injuries against Thunder Bay.
Cripps v. Corporation of the City of Thunder Bay, 2026 ONSC 3864, arose from an incident on Nov. 22, 2016. The plaintiff was disembarking from a city bus when she fell.
In a statement of claim issued on Nov. 20, 2018, and served on Nov. 23, 2018, the plaintiff alleged that the defendant city failed to ensure the bus stop was free of hazards, and that she sustained injuries and suffered damages due to her fall.
From 2019 to June 2021, the plaintiff lived in England. Following the lifting of pandemic restrictions, she returned to Canada. In June 2022, she gave birth to a daughter.
The plaintiff said she found it difficult to communicate with her lawyers because of the pandemic, her employment, and her residence in England. In early 2021, her counsel provided the city’s counsel with a draft affidavit of documents.
However, the city’s counsel asserted that the discovery examination would not proceed until the plaintiff’s submission of updated medical records and other damage documentation.
The city delivered its statement of defence on Apr. 21, 2023, and appointed new counsel in November 2023.
On Nov. 30, 2023, the plaintiff requested and obtained an order declining to dismiss the action under r. 48.14 of the Rules of Civil Procedure, RRO 1990, Reg 194, and fixing a litigation timetable.
The plaintiff’s counsel failed to diarize the new date specified for setting down the action by the Nov. 30, 2023, order.
From February 2025 to July 4, 2025, the plaintiff’s counsel received no communications from the city’s counsel. On July 4, 2025, the plaintiff’s counsel received the registrar’s June 30, 2025, order dismissing the action for delay.
Through an email dated Aug. 29, 2025, the city’s counsel rejected the plaintiff’s settlement proposal, noted the outstanding undertakings, and advised that the city was unprepared to consent to an order setting aside the registrar’s dismissal order.
Last Mar. 9, the plaintiff moved to set aside the registrar’s dismissal order. In an affidavit, her counsel advised that their office reported the claim to the Lawyers’ Professional Indemnity Company (LawPro) in October 2025 and delivered the motion material once LawPro had reviewed and approved it.
A regional senior judge of the Ontario Superior Court of Justice set aside the registrar’s dismissal order. The court ruled that the balancing of the factors favoured a trial on the merits.
The court determined that the plaintiff’s delay did not significantly prejudice the city in presenting its case at trial. The court acknowledged that seeking LawPro’s direction caused some delay.
The Superior Court saw satisfactory evidence that the plaintiff had always meant to prosecute the action but had trouble communicating with counsel, which resulted in much of the delay and the motion to extend the time to set down the action to prevent its administrative dismissal in 2024.
The court held that the inadvertence of the plaintiff’s counsel caused the delay in setting down the action by the court-ordered deadline. The court explained that the plaintiff’s counsel:
The Superior Court ordered the plaintiff to serve a trial record by Sept. 1. The court noted that counsel could pursue another attendance if seeking a different procedural order.
Lastly, the court exercised its discretion not to award the plaintiff costs because she was requesting a remedy attributable to her failure to comply with a procedural order.
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