The defendant moved for an order requiring the plaintiff to pay costs following a notice of discontinuance, seeking an extension of time under Rule 23.05 of the Rules of Civil Procedure after failing to bring the motion within the 30‑day deadline.
The court applied the test requiring absence of prejudice and a reasonable explanation for delay.
While the plaintiff would not be prejudiced, the defendant deliberately chose an incorrect procedure by attempting to have costs assessed by an assessment officer rather than bringing a timely motion.
The court held that a mistaken strategic choice did not constitute a satisfactory explanation for delay.
The motion for an extension and costs was dismissed, and the plaintiff was awarded reduced partial indemnity costs relating to the assessment hearing.
