Jillian Van Allen

The appellant appealed from an order dismissing his motion to set aside a previous order that dismissed his action.

The action had been dismissed after the appellant failed to comply with two separate court orders requiring him to answer undertakings and pay costs.

The motion judge found no adequate explanation for the delay or non-compliance, and noted prejudice to the respondents.

The Court of Appeal found no error in the motion judge's conclusions, noting the appellant's counsel admitted to non-compliance because he did not anticipate strict enforcement.

The appeal was dismissed with costs.

The applicant insurer sought judicial review of a Director's Delegate's decision which found that the respondent insured was not precluded from proceeding to arbitration.

The insurer had denied the insured's claim for a non-earner benefit but failed to provide a copy of the medical report it relied upon until more than two years later.

The Divisional Court held that the Director's Delegate's decision was reasonable, as the failure to provide the medical report meant the insurer provided incomplete reasons for the denial, and thus the two-year limitation period did not commence until the report was finally provided.

Following dismissal of the plaintiff’s motion to set aside an order dismissing the action, the court addressed the defendants’ claim for costs.

The defendants sought over $27,000 in legal fees and additional disbursements, relying on extensive work performed by multiple lawyers, clerks, and students.

The court accepted that the motion’s outcome was predictable and found the staffing and hours claimed by the defendants excessive given the straightforward nature of the motion.

While acknowledging that law firms may allocate work among multiple professionals, the court held that the losing party should not bear the costs of training junior counsel.

Costs were fixed at $13,000 payable by the plaintiff.

The plaintiff moved to set aside a Registrar’s order dismissing a civil action for delay arising from alleged workplace sexual assault and related constructive dismissal claims.

The court applied the contextual analysis described in Reid v Dow Corning Corp, considering explanation for litigation delay, inadvertence in missing the deadline to set the action down for trial, promptness of the motion, and prejudice to the defendants.

Although the action progressed slowly and counsel cited workload pressures, the court found there was no intentional delay and that the plaintiff had taken steps toward advancing the litigation.

The motion to set aside the dismissal was brought promptly and the defendants failed to demonstrate significant prejudice.

The court set aside the dismissal order and permitted the action and a related crossclaim to proceed.

Following a summary judgment motion concerning a limitation period defence in a slip and fall personal injury action, the court had previously granted partial summary judgment to the plaintiff dismissing the defendants’ limitation period defence and allowing the action to proceed to trial on negligence and damages.

The present decision addressed the plaintiff’s request for partial indemnity costs of $6,168.71 arising from that motion.

The defendants argued only that the claimed amount was excessive and unreasonable.

The court found no merit in that objection and awarded the plaintiff the costs as claimed.

The defendants appealed a master's order reinstating an action that had been administratively dismissed for delay for a second time after the plaintiff's counsel missed the deadline to set the matter down for trial.

The appeal challenged the master's finding that the missed deadline resulted from inadvertence and argued that a stricter test should apply following a second dismissal.

The court held that the governing four‑factor contextual test for setting aside a dismissal for delay, articulated by the Court of Appeal, does not change simply because the dismissal occurred a second time.

While a court should expect some articulated explanation for the missed deadline, a minimal explanation may suffice in context.

The master's discretionary decision to reinstate the action was entitled to deference and disclosed no reversible error.

The plaintiff moved under Rule 37.14 of the Rules of Civil Procedure to set aside an order dismissing the action for failure to comply with discovery undertakings and prior costs orders.

The dismissal had been obtained without notice pursuant to a prior court order permitting the defendants to move if compliance was not achieved.

The court held the motion was not brought forthwith after the order came to the plaintiff’s attention and that no reasonable explanation was provided for the continued failure to complete undertakings or pay costs despite multiple extensions.

The court also found the defendants had experienced prejudice due to outstanding discovery obligations affecting their ability to defend the claim.

The request to set aside the dismissal and extend compliance was therefore refused.

The elderly plaintiff fractured her ankle in a slip and fall and was hospitalized for several weeks, during which she was heavily medicated and disoriented.

She commenced an action just over two years after the fall.

The defendants brought a motion for summary judgment, arguing the claim was statute-barred.

The court dismissed the defendants' motion and granted partial summary judgment to the plaintiff, finding that the limitation period was tolled under s. 7 of the Limitations Act, 2002 because the plaintiff was incapable of commencing a proceeding while hospitalized.

The plaintiff brought a motion under Rule 37.14 of the Rules of Civil Procedure to set aside a registrar’s order dismissing the action as abandoned under Rule 48.15 and to validate service of the statement of claim.

The court applied the contextual approach and the Reid factors governing motions to set aside administrative dismissals, emphasizing that prejudice to the defendant is the key consideration.

Although the plaintiff failed to satisfy several factors, including promptness and explanation for delay, the court found that significant prejudice had been rebutted because liability was clear and relevant evidence remained available.

The court therefore set aside the dismissal order, extended time for service, and validated service attempts.

A motion by the plaintiff’s insurer to be added as a defendant under Rule 13.01 was dismissed due to conflict-of-interest concerns where an insurer seeks to oppose its insured.

The plaintiff brought motions under Rule 37.14 of the Rules of Civil Procedure seeking to set aside registrar’s dismissal orders in a tort action and a related accident benefits action arising from a bus incident.

The dismissals occurred after court-imposed deadlines were missed due to oversight within the plaintiff’s law firm, including inadequate supervision of an articling student and administrative issues following counsel’s departure.

The court applied the contextual analysis governing motions to set aside administrative dismissals, focusing on the Reid factors: explanation of delay, inadvertence, promptness of the motion, and prejudice.

Although the motion was not brought promptly, the court accepted that the litigation delay was adequately explained, the missed deadlines resulted from inadvertence rather than intentional abandonment, and the defendants suffered no significant prejudice.

Balancing the competing principles of timely litigation and adjudication on the merits, the court concluded that justice favoured reinstating the actions.

The plaintiff brought a motion under Rule 37.14 of the Rules of Civil Procedure to set aside a registrar’s order dismissing the action as abandoned under Rule 48.15 and to extend the time for service of the statement of claim.

The court reviewed the applicable principles governing motions to set aside administrative dismissal orders, including the Reid factors addressing explanation for delay, inadvertence, promptness of the motion, and prejudice to the defendant.

Although the plaintiff failed to provide satisfactory explanations for significant litigation delay and for the delay in bringing the motion, the court accepted that the missed deadline resulted from inadvertence and found that the plaintiff rebutted the presumption of prejudice despite the expiry of the limitation period.

Given the preference for resolving disputes on their merits and the absence of demonstrated actual prejudice to the defendants, the registrar’s dismissal order was set aside and the time for service extended.

The defendants were awarded costs of the motion.

The appellant appealed a motion judge's order enforcing a settlement of her claims for statutory accident benefits against her automobile insurer.

The appellant had accepted an offer to settle but later rescinded it, arguing the offer did not qualify as a Rule 49 offer and thus was subject to the rescission provisions of the Automobile Insurance Regulation.

The Divisional Court agreed, finding the offer required the appellant to release future claims not included in her statement of claim, meaning it was not a valid Rule 49 offer.

The appeal was allowed and the judgment enforcing the settlement was set aside.

The plaintiffs brought a motion to set aside a registrar's order dismissing their motor vehicle accident action as abandoned under Rule 48.15.

The action was dismissed after the plaintiffs failed to file a defence within 180 days.

Applying the Reid factors, the court found that while the plaintiffs failed to bring the motion promptly and did not adequately explain the litigation delay, the failure to comply with the rules was inadvertent and the defendant suffered no actual prejudice.

The court set aside the dismissal order and ordered the plaintiffs to pay the defendant's costs of the motion.

The plaintiffs brought a motion to set aside a registrar's order dismissing their motor vehicle accident action as abandoned under Rule 48.15.

The action was dismissed because no defence was filed within 180 days and the plaintiffs' counsel inadvertently failed to respond to a pending dismissal notice.

Applying the Reid factors, the court found that while the plaintiffs failed to explain the litigation delay and did not move promptly, the failure was inadvertent and the defendant suffered no actual prejudice.

The court set aside the dismissal order and awarded costs of the motion to the defendant.

Following a motion to set aside an administrative dismissal under Rule 48.14 of the Rules of Civil Procedure, the court addressed the issue of costs.

Although the plaintiff was successful in having the administrative dismissal set aside, the court found that the plaintiff’s unexplained delay, failure to bring the motion promptly, and deficiencies in the evidentiary record significantly complicated the proceeding.

The court held that the defendant was justified in opposing the motion and that the plaintiff’s conduct unnecessarily lengthened and complicated the litigation.

Applying the factors under Rule 57, the court concluded that the defendant should receive costs despite not succeeding on the motion itself.

A reduced partial indemnity costs award was granted to reflect some excess in the claimed time and the plaintiff’s ultimate success on the motion.

The defendant insurer appealed a master's decision made at a Rule 48.14 status hearing that allowed a delayed action to continue.

The court considered recent Court of Appeal jurisprudence clarifying that the purpose of a status hearing is not case management but to determine whether the plaintiff can provide an acceptable explanation for delay and demonstrate absence of non-compensable prejudice to the defendant.

The evidence filed on behalf of the plaintiff consisted only of affidavits from counsel explaining that the file had fallen through the cracks, with no affidavit from the plaintiff herself.

The court held that such evidence does not satisfy the plaintiff’s evidentiary burden under the modern status hearing framework.

The appeal was allowed and the master's order was set aside, but rather than dismiss the action outright, the court directed that a new status hearing be scheduled with a fresh evidentiary record.

The plaintiff brought a motion to set aside a Registrar’s order dismissing the action as abandoned following prolonged delay in prosecuting a motor vehicle accident claim.

The court applied the contextual test from Scaini v. Prochnicki, considering explanation for delay, inadvertence in missing deadlines, promptness of the motion, and prejudice to the defendant.

The court found multiple unexplained delays in the litigation, including failures to provide basic documents to the defendant’s insurer and a lengthy delay before bringing the motion after the dismissal order.

The plaintiff’s explanations, including counsel’s health issues and a mislabeled file, were found insufficient and not credible in light of earlier delays.

The presumption of prejudice to the defendant was not rebutted.

The motion to set aside the dismissal order was dismissed.

The plaintiffs brought a motion under rule 37.14(1) of the Rules of Civil Procedure to set aside a registrar’s order dismissing their motor vehicle accident action as abandoned under rule 48.15 and to extend time for service of an amended statement of claim on an additional defendant.

Applying the Reid factors, the court considered whether the delay was adequately explained, whether the dismissal resulted from inadvertence, whether the motion was brought promptly, and whether the defendants would suffer prejudice.

The court found that the delay was largely attributable to the plaintiffs’ lawyer’s mental health issues and constituted inadvertence rather than a deliberate decision to abandon the claim.

Although the delay was significant, the plaintiffs rebutted the presumption of prejudice and the defendants failed to establish actual prejudice.

Balancing the interests of finality with the principle that actions should be decided on their merits, the court set aside the dismissal and validated late service on the defendant.

The plaintiff appealed an order dismissing her action.

The application judge found evidence that the plaintiff lacked capacity to instruct counsel to commence the action.

The Court of Appeal held that the application judge erred in principle by failing to consider Rule 7 of the Rules of Civil Procedure.

Instead of dismissing the action, it should have been stayed under Rule 15.02 until an application for a litigation guardian could be made.

The appeal was allowed, the dismissal set aside, and the action stayed.

The plaintiffs brought a motion under Rule 37.14 of the Rules of Civil Procedure to set aside a registrar’s order dismissing their action for delay under Rule 48.14.

The underlying action arose from a pedestrian–motor vehicle accident and included tort claims against the driver and statutory accident benefits claims involving the Motor Vehicle Accident Claims Fund.

Applying the contextual test and the four factors from Reid v. Dow Corning Corp., the court examined the explanation for delay, inadvertence in missing the deadline, promptness of the motion, and prejudice to the defendants.

Although the motion was not brought promptly, the court found that the delay was largely attributable to counsel’s inadvertence and unusual circumstances including illness, staff turnover, and an office flood, and that the defendants had not demonstrated actual prejudice.

The registrar’s dismissal order was therefore set aside.