J. Jakubiak

During a motion hearing, the judge raised the potential applicability of Rule 57.07(2) of the Rules of Civil Procedure regarding possible costs consequences for counsel based on issues identified in the motion materials.

The defendant moved for the judge’s recusal, arguing that raising the rule created a reasonable apprehension of bias.

The court held that merely identifying concerns arising from the written record and inviting submissions does not demonstrate bias or predisposition.

Judges are entitled to form preliminary impressions from motion materials and to alert counsel to potential issues so that they may address them fully.

The recusal motion was therefore dismissed.

The plaintiffs brought a motion under Rule 37.14 to set aside a Registrar’s order dismissing their wrongful dismissal action for delay under Rule 48.14.

The delay arose after the employee-plaintiff died of cancer and his widow temporarily lacked financial means to continue the litigation, while the plaintiffs’ former lawyer failed to notify the estate trustee of the Status Notice issued by the Registrar.

The court held that the plaintiffs provided an acceptable explanation for the delay and that the defendant demonstrated no non-compensable prejudice.

The judge emphasized that the action had not been plagued by delay and that the absence of notice of the Status Notice weighed strongly in favour of relief.

The Registrar’s dismissal order was therefore set aside and the action reinstated.