C. Michael J. Kealy

The plaintiffs brought a motion to restore their personal injury action to the trial list after it was struck off due to the inaction of their former lawyer, who was subsequently suspended by the Law Society.

The defendants brought a cross-motion to dismiss the action for delay.

The court found that the plaintiffs had an acceptable explanation for the delay, as they had constantly inquired about the status of their file and were failed by their former lawyer.

The court also found no non-compensable prejudice to the defendants, as liability had been admitted and relevant evidence preserved.

The plaintiffs' motion was granted and the defendants' cross-motion was dismissed.

The plaintiff was previously successful on a motion to restore her action to the trial list.

In these supplementary reasons on costs, both parties sought costs of the motion.

The Master found that the plaintiff was not entitled to costs because she had received an indulgence after waiting many months to bring the motion, and the defendants reasonably opposed it given the history of administrative dismissals.

However, the Master also declined to award costs to the unsuccessful defendants, noting that the plaintiff had satisfied the factors of delay and prejudice without deliberate misconduct.

Ultimately, no costs were awarded to either party.

The plaintiff brought a motion to restore her personal injury action to the trial list after it was struck for failure to file a trial certification form.

The court found that the plaintiff provided an acceptable explanation for the delay, which included a change of counsel and the defendants' failure to respond to the certification form.

The court also found no non-compensable prejudice to the defendants, as the action was largely ready for trial and the defendants had fully investigated the claim.

The motion was granted and the action was restored to the trial list.

The appellants appealed a Master's decision allowing the respondents to select the appellants' in-house counsel as their representative for examination for discovery.

The in-house counsel also had carriage of the fraud action on behalf of the appellants.

The Superior Court of Justice allowed the appeal, finding that while in-house counsel are not shielded from discovery, requiring counsel of record to attend would be oppressive as it would inevitably prevent him from continuing as counsel, thereby interfering with the appellants' choice of counsel.

The respondents were ordered to select another representative.