Allan L. Rachlin

The appellant appealed the dismissal of her actions by the trial judge.

The Court of Appeal found that the trial judge did not have a complete picture of the facts and circumstances when dismissing the case.

The appellant, a self-represented litigant with language issues, was non-compliant with a trial management order at the time set for trial, and her main liability witness (her brother) had been recently injured and hospitalized in Ecuador.

The Court of Appeal allowed the appeals, set aside the trial judge's orders, and directed the appellant to bring a motion within 60 days before a Superior Court judge to demonstrate why the matters should proceed, on a more fulsome record including medical evidence.

The moving party sought an order removing the plaintiffs’ solicitors of record and removing the mother as litigation guardian in a personal injury action arising from a snowmobile accident involving a minor.

The motion alleged a conflict of interest between the minor plaintiff and her mother, who was also a plaintiff and alleged to have contributed to the accident by failing to ensure the child wore a helmet.

The court acknowledged that a potential conflict had existed and that counsel had been inattentive in aspects of the litigation, including allowing counterclaims against the mother to proceed to default.

However, the now-adult plaintiff had received independent legal advice and confirmed that she wished to continue with the same counsel and did not intend to pursue any claim against her mother.

Applying the objective test of whether a reasonably informed member of the public would conclude that removal was required for the proper administration of justice, the court held that disqualification was not warranted.