Derek Fulton

The defendant, York Condominium Corporation No. 129 (the "Owner"), sought partial indemnity costs for its unopposed motions to amend pleadings.

The plaintiff, Brook Restoration Ltd. ("Brook"), opposed the costs and sought its own costs for preparing responding submissions.

The Master found that Brook had no obligation to consent to the amendments and that the Owner unnecessarily incurred costs by preparing full motion materials despite Brook's indication of non-opposition.

The Master denied the Owner's request for costs and also denied Brook's request for costs due to its non-compliance with a timetable order.

Each party was ordered to bear its own costs.

The appellants appealed a Master's decision that had set aside an administrative dismissal of a personal injury action.

The action was dismissed in 2011 due to the plaintiffs' counsel's delay, and the motion to set aside the dismissal was not brought for 2.5 years.

The Superior Court found that the Master erred in law by misinterpreting the statutory context of Rule 48.15 repeal, incorrectly assigning blame to the defendants for not filing a defence, and failing to adequately consider the finality principle and the growing presumption of prejudice over time.

The court re-evaluated the Reid factors, concluding that the plaintiffs failed to provide a satisfactory explanation for the delay, did not demonstrate inadvertence, and did not move promptly.

Furthermore, actual prejudice to the defendants and intervenor was established.

The appeal was allowed, and the administrative dismissal was reinstated.