Annette Uetrecht-Bain

The court considered a motion by the plaintiff to set aside an administrative dismissal of a personal injury action for delay.

The court reviewed the relevant factors, including the explanation for delay, inadvertence, promptness in bringing the motion, and prejudice to the defendant.

The court found the explanation for delay satisfactory, attributed the delay to counsel rather than the plaintiff, and found no actual or presumed prejudice to the defendant.

The action was reinstated, but no costs were awarded to either party.

The defendants brought a motion for summary judgment to dismiss the plaintiff's claim and a co-defendant's crossclaim in a motor vehicle personal injury action.

The moving parties relied on an expert report attached to an affidavit from an associate lawyer.

The court gave no weight to the expert report because it was provided via information and belief, depriving the responding parties of the opportunity to cross-examine the expert.

Finding three conflicting accounts of the accident and substantial issues of credibility and reliability, the court concluded there were genuine issues requiring a trial and dismissed the motion.

The Defendants Kevin Philpott and Mark Philpott sought costs after a partially successful motion where the Plaintiff's Statement of Claim was struck with leave to amend, but their primary request to dismiss the action as an abuse of process was denied.

The court characterized the defendants' victory as 'pyrrhic' due to their failure on the abuse of process argument and their lawyer's conduct in a companion action.

Considering the procedural issues from both parties, the court ordered costs in the cause, fixed at $8,500, rejecting the defendants' request for substantial indemnity costs.

The defendants, Kevin and Mark Philpott, moved to dismiss the plaintiff's action as an abuse of process or for failure to disclose a reasonable cause of action.

The court found that the action was not an abuse of process, rejecting the re-litigation and circumvention arguments.

However, the court determined that the Statement of Claim failed to properly plead reasonable causes of action for fraud, corporate oppression, and negligence.

Consequently, the Statement of Claim was struck in its entirety with leave to amend.