Caroline Mowat

The plaintiff successfully moved to set aside a registrar's order dismissing the action for delay.

In this supplementary decision on costs, the defendants sought costs of the motion despite being the unsuccessful party.

The court found this to be a rare and exceptional case warranting an award of costs to the unsuccessful party, as the plaintiff had obtained a significant indulgence after a 28-month delay in bringing the motion and initial evidentiary deficiencies.

The court fixed the defendants' costs at $5,000, reducing the requested amount of $9,436.71 as excessive.

The plaintiff brought a motion to set aside a registrar's order dismissing her motor vehicle accident action for delay.

The action was dismissed after the plaintiff's former lawyer failed to set the action down for trial by the court-ordered deadline.

Applying the four-factor test, the Master found that the delay was not inordinate, the missed deadline was due to inadvertence, and the defendants suffered no actual prejudice.

The motion was granted and the dismissal order was set aside, subject to the suspension of pre-judgment interest and payment of a missed defence medical cancellation fee.