Evan Kopiak

The court dismissed the plaintiff’s motion to set aside a registrar’s dismissal order for delay in a motor vehicle accident action.

The plaintiff’s counsel misunderstood the effect of the COVID-19 suspension of administrative dismissals, believing there was additional time to set the matter down for trial.

The court found the explanation for delay unsatisfactory, noting the plaintiff and her counsel failed to move the action forward and did not provide evidence of a plan thwarted by unforeseen obstacles.

The court also found the presumption of prejudice to the defendants was not rebutted, as key evidence and witnesses were no longer available.

The decision emphasizes the responsibility of parties to advance litigation and the court’s intolerance for delay.

The defendant brought a motion to dismiss the plaintiff's action for inordinate and inexcusable delay and non-compliance with court orders.

The action, stemming from a 2011 motor vehicle accident, had seen significant periods of inactivity and the plaintiff failed to comply with discovery undertakings and production orders.

Despite the plaintiff finally retaining counsel, the court found no adequate explanation for the 10-year delay and that the plaintiff failed to discharge the burden of proving the defendant would not be prejudiced, especially in light of the recent Barbiero v. Pollack decision.

The motion to dismiss was granted.

The defendants brought motions to dismiss two separate actions for the plaintiff's failure to comply with a previous court order and for inordinate and inexcusable delay under Rules 60.12, 24.01(1), and 48.14.

The court found the plaintiff's non-compliance with the order to be complete and unequivocal, with no adequate explanation for the significant delay, particularly after an indulgence was granted.

The court determined that the delay was inordinate and inexcusable, raising a substantial risk that a fair trial would not be possible due to a presumption of prejudice that the plaintiff failed to rebut, including concerns about the availability of medical records and witnesses.

Consequently, both actions were dismissed.

Following the dismissal of the plaintiffs' motion to reinstate their action and the granting of the defendants' motions for summary judgment and a vexatious litigant declaration, the court determined the costs payable to the defendants.

The plaintiffs failed to provide responding costs submissions and had a history of ignoring adverse costs awards.

The court awarded the defendants their requested costs on a partial indemnity basis, totaling $85,832.43.

The plaintiffs brought a motion under Rule 59.06(2) to set aside previous dismissal orders on the basis of fraud.

The defendant municipality brought a motion for summary judgment, and the defendants collectively applied to have the plaintiffs declared vexatious litigants under s. 140 of the Courts of Justice Act.

The court dismissed the plaintiffs' motion, finding no evidence of fraud.

The court granted the municipality's summary judgment motion, finding the claims barred by issue estoppel.

Finally, the court declared the plaintiffs vexatious litigants, noting their 15-year history of abusive litigation, frivolous appeals, and failure to pay over $218,000 in costs awards.

The parties attended a case conference to schedule several proceedings, including the plaintiffs' Rule 59.06 motions to set aside previous orders, the defendants' summary judgment motion, and an application to declare the plaintiffs vexatious litigants.

The self-represented plaintiff argued that a proposed constitutional challenge regarding the conduct of opposing counsel and the judiciary should be heard first.

The court rejected this argument, noting the constitutional challenge had not yet been commenced and the other proceedings had been outstanding for years.

The court scheduled the outstanding motions for a combined hearing.

Dian and Aaryn Doyle moved to set aside a registrar's order dismissing their action for delay, stemming from two motor vehicle accidents in 2010.

The court applied the four Reid factors (explanation for delay, inadvertence, promptness of motion, and non-compensable prejudice).

The court found a reasonable explanation for delay due to personal difficulties, health issues, confusion regarding undertakings, settlement discussions, and a conflict of interest with previous counsel.

The deadline was missed through inadvertence, and the motion was brought promptly.

The court found no non-compensable prejudice to the defendants, as no critical evidence was lost due to delay.

The motion was granted, setting aside the dismissal order for Dian and Aaryn Doyle, but not for Aiden Doyle who did not participate.

No costs were awarded due to counsel's inadvertence.

The appellants appealed an order from the motion judge dismissing a certification motion for class proceedings.

The Court of Appeal found that the motion judge's order was clear and unequivocal in dismissing only the certification motion, not the underlying claims.

Under section 30 of the Class Proceedings Act, an appeal from an order refusing to certify a proceeding lies to the Divisional Court, not the Court of Appeal.

Accordingly, the appeal to the Court of Appeal was quashed without prejudice to the appellants proceeding with the appeal in the Divisional Court.

The plaintiff was involved in a motor vehicle accident and commenced tort and accident benefits actions.

After multiple changes in counsel and a capacity assessment confirming she was capable, the plaintiff became self-represented.

The case management judge attempted to appoint Amicus Curiae to assist the plaintiff at trial, but the relationship between the plaintiff and proposed counsel broke down.

The plaintiff insisted on representing herself and refused further assistance.

The court reluctantly discontinued efforts to appoint Amicus Curiae and scheduled the trial and outstanding motions.