Eleonora Persichilli

Following dismissal of the plaintiff’s motion to set aside a registrar’s order dismissing the action, the court determined the appropriate quantum of costs.

The defendant insurer sought partial indemnity costs for the entire action and the unsuccessful motion.

The court held that the defendant was entitled to the costs awarded in the dismissal order and was not deprived of those costs merely because it did not promptly quantify them.

Due to insufficient docket detail and the involvement of numerous counsel, the court reduced the amounts claimed and fixed reasonable partial indemnity fees and disbursements.

Costs were fixed at $12,000 inclusive of HST and disbursements.

The plaintiff brought a motion to set aside a registrar’s dismissal of a personal injury action arising from a motor vehicle accident under Rule 48.14 of the Rules of Civil Procedure.

The court applied the four factors from Reid v. Dow Corning Corp., namely explanation for the litigation delay, inadvertence in missing the deadline, promptness in bringing the motion, and prejudice to the defendant.

The court found that the plaintiff failed to adequately explain extensive delays in advancing the litigation, failed to demonstrate inadvertence, and did not bring the motion promptly, waiting over three years after learning of the dismissal.

Although there was no evidence of actual prejudice to the defendant, the court held that the principle of finality constituted prejudice after such an inordinate delay.

The motion to set aside the dismissal was therefore dismissed.