G. Bobesich

The plaintiff sued his former lawyer for professional negligence arising from the lawyer's representation during a criminal appeal.

The defendant lawyer did not defend the civil action.

The court found that the defendant made false promises of success, failed to properly advance the appeal, and negligently conceded an abandonment of the sentence appeal.

The plaintiff failed to prove most of his claimed damages due to a lack of evidence, but the court awarded nominal punitive damages and reimbursement for legal fees paid to the defendant and successor counsel, totaling $62,042.

The plaintiff moved to set aside a Registrar’s order dismissing the action for delay under Rule 48.14 of the Rules of Civil Procedure.

The court applied the contextual approach and the Reid factors, considering explanation for delay, inadvertence in missing the deadline, promptness of the motion, and prejudice to the defendants.

The plaintiff failed to provide a satisfactory explanation for lengthy litigation delay, including significant gaps in evidence regarding counsel’s reminder system and delay in bringing the motion.

The court also found prejudice to the defendants arising from missing documentary evidence and corporate changes undertaken in reliance on the dismissal order.

Balancing the interests of justice and the principle of finality, the court declined to set aside the Registrar’s order.