John Hardy McNair

The plaintiff, Azmoon Trading Inc., sought to alter a previous costs award in favour of the defendants, Caffe Demetre Franchising Corp. et al., following the dismissal of an injunction motion.

Azmoon Trading argued that costs should be borne by each party due to similar incurred costs and ongoing litigation, and challenged specific disbursements related to the defendants' counsel retaining lawyers from London, Ontario.

The court confirmed the original costs award of $41,670.61 to Caffe Demetre, finding that the successful party is presumptively entitled to costs, and that retaining counsel from a different municipality, even if it incurs additional travel disbursements, is generally permissible and reasonable if the overall costs are fair.

The plaintiff, The Canada Trust Company, Trustee, brought a motion under Rule 37.14 to set aside a Registrar's dismissal order from May 3, 2013, which administratively dismissed the action for delay.

The court applied the four-pronged Reid test, considering the explanation for delay, inadvertence in missing the deadline, promptness of bringing the motion, and prejudice to the defendants.

While the court found the missed deadline was inadvertent, it determined that the plaintiff failed to adequately explain the full extent of the delay and did not bring the motion promptly.

Crucially, the court found significant non-compensable prejudice to the defendants, Boulos and Henriette Daher, due to the inordinate passage of time, the nature of their *non est factum* defence relying on faded memories, and their declining health, which rendered them unfit to participate in trial.

The motion to set aside the dismissal was therefore dismissed.

The plaintiff brought a motion to set aside a Registrar’s administrative dismissal of an action for delay under Rule 48.14 of the Rules of Civil Procedure.

The action had previously been stayed by court order under s. 7(1) of the Arbitration Act, 1991 in favour of arbitration pursuant to a contractual arbitration clause.

The court held that a judicial stay places the proceeding in suspended animation such that the parties cannot take further procedural steps and the administrative timelines under Rule 48.14 cannot operate.

The Registrar therefore lacked jurisdiction to issue a status notice and dismissal order while the action remained stayed.

The administrative dismissal and resulting certificate of assessment of costs were set aside and the action remained stayed pending arbitration.