James Hill Lawson

The appellant appealed a Superior Court decision that set aside a master's order reinstating his action to the trial list.

The action had been dismissed for delay multiple times and reinstated on consent.

The parties agreed to a fourth timetable with a consent order under Rule 48.14(4) requiring the appellant to meet an August 18, 2016 deadline for restoration.

The appellant met the deadline and the master reinstated the action.

The appeal judge allowed the respondents' appeal, but the Court of Appeal reversed, holding that the master correctly focused on delay subsequent to the consent order rather than the entire history of delay.

The court affirmed that the respondents' consent to the order was binding and that there was no relevant delay requiring explanation.

The appellants (defendants) appealed a Master's order that restored an action to the trial list, arguing that the Master erred by failing to find non-compensable prejudice due to the plaintiff's unexplained delay and the deaths of key defence witnesses.

The court found that the Master made a palpable and overriding error by not considering that the appellants were unaware of the witnesses' deaths when they consented to a new timetable, and by not considering the entire period of delay.

The court concluded that the plaintiff failed to provide an acceptable explanation for the overall delay and that the deaths of the key witnesses constituted non-compensable prejudice.

The appeal was allowed, and the action was dismissed.