The appellant estate appealed a motion judge's decision dismissing its motion to dismiss a solicitor's negligence action for delay.
The defendant solicitor had died unexpectedly during the litigation.
The appellant argued the loss of the solicitor's viva voce evidence caused actual prejudice.
The Divisional Court upheld the motion judge's finding that the documentary evidence was sufficient to ensure a fair trial and that the appellant failed to prove actual prejudice.
The respondent's cross-appeal regarding the motion judge's costs award was also dismissed.
