B. Martin

The defendants brought motions to dismiss two separate actions for the plaintiff's failure to comply with a previous court order and for inordinate and inexcusable delay under Rules 60.12, 24.01(1), and 48.14.

The court found the plaintiff's non-compliance with the order to be complete and unequivocal, with no adequate explanation for the significant delay, particularly after an indulgence was granted.

The court determined that the delay was inordinate and inexcusable, raising a substantial risk that a fair trial would not be possible due to a presumption of prejudice that the plaintiff failed to rebut, including concerns about the availability of medical records and witnesses.

Consequently, both actions were dismissed.

The plaintiff brought a motion to vary a 2018 consent order that dismissed its motion to set aside a registrar's dismissal order.

The plaintiff argued that its former counsel made an inadvertent mistake by agreeing to dismiss the motion against all defendants, rather than just the MEC defendants, and sought to continue the action against the Pace defendants.

The court dismissed the motion, finding no common mistake, fraud, or misrepresentation to justify varying the consent order, which accurately reflected the fairly negotiated minutes of settlement.

The court emphasized the relative sanctity of consent orders and the strong presumption in favour of the finality of settlements.

The plaintiff brought a motion to amend her Statement of Claim to add a winter maintenance contractor as a defendant to her slip and fall action against the municipality.

The motion was brought after the expiry of the presumptive two-year limitation period.

The court found that the presence of snow and ice on the municipal sidewalk was a trigger that should have prompted the plaintiff to inquire about a maintenance contractor.

Because the plaintiff failed to make any such inquiries, she did not exercise reasonable diligence, and the claim against the contractor was statute-barred.

The motion was dismissed.

The plaintiffs brought a motion to extend the time to file a statement of claim and to extend the time for service after commencing the action by notice of action near the expiry of the limitation period.

The statement of claim was not filed within the 30‑day period required by Rule 14.03(3) of the Rules of Civil Procedure and was not served within the six‑month period required by Rule 14.08.

The court held that the governing rule was Rule 3.02(1), which permits the court to extend time where just.

Although the court criticized plaintiff’s counsel for vague evidence and poor file management, the defendants had early notice of the claim and there was no evidence of prejudice.

The delay in service was approximately two months and the court inferred a lack of prejudice from the factual matrix.

The motion was granted but costs were ordered payable to the defendants.

The defendant brought a motion for leave to amend the amended statement of defence in a solicitor’s negligence action alleging failure to commence a motor vehicle accident claim.

The proposed amendments sought to plead an alternative defence based on discoverability and the timing of the limitation period.

The court applied Rule 26.01 of the Rules of Civil Procedure, which requires that amendments be granted unless non-compensable prejudice would result.

The plaintiff argued that allowing the amendment could eliminate her cause of action and that she had relied on the absence of a discoverability defence.

The court held that the plaintiff failed to provide sufficient evidence of prejudice that could not be compensated by costs or adjournment and granted leave to amend.

The moving party (defendant) in a solicitor's negligence action sought leave to amend his statement of defence to plead an alternative defence of discoverability regarding a missed limitation period for a 2001 motor vehicle accident.

The responding party (plaintiff) opposed the amendment, arguing it would cause irreparable prejudice.

The Master granted the motion, finding that the responding party's evidence of prejudice was insufficient and that any potential prejudice could be compensated by costs.