J. Van Allen

The plaintiff was partially successful on a motion to compel a further and better affidavit of documents and sought partial indemnity costs of $4,575.87.

The defendants argued for 50% of the claimed costs due to divided success.

The court rejected a strict mathematical reduction for divided success but noted the plaintiff's evidentiary failings on the unsuccessful relief.

Costs were fixed at $3,748.82 inclusive of disbursements and HST.

The plaintiff, suing his former lawyers for professional negligence and breach of contract, brought a motion under Rule 30.06 for a further and better affidavit of documents.

The plaintiff sought production of correspondence, legal billing records, internal law firm documents, and settlement communications with insurers.

The court granted the motion in part, ordering the defendants to produce documents relating to legal billing and accounting, as well as communications with insurers regarding the settlement of the tort and accident benefits claims, finding these relevant to the pleadings.

The request for internal documents and other correspondence was dismissed for lack of evidence.

The plaintiff brought a motion to add Kristen McLean as a defendant to an action arising from an incident on a slide ride at Blue Mountain Resort.

The proposed defendant opposed the motion, arguing the two-year limitation period had expired.

The plaintiff argued the identity of the proposed defendant was not discoverable until the resort provided an unredacted incident report.

The court granted the motion, finding the plaintiff had met the low evidentiary threshold to show the identity was not discoverable with due diligence, and added the proposed defendant without prejudice to her right to plead a limitation defence.

The plaintiff brought a motion to extend the time to set the action down for trial to avoid administrative dismissal under Rule 48.14.

The motion was adjourned to proceed as a status hearing.

However, before the dismissal deadline, the plaintiff filed a trial record and abandoned her motion.

The defendant argued this was an abuse of process and sought to proceed with the status hearing.

The court held that the plaintiff was entitled to file the trial record before the deadline, pre-empting the status hearing.

However, because the action was not actually ready for trial, the court struck it from the trial list to allow the defendant to complete discoveries.

The plaintiffs brought a motion to set aside a Registrar's order dismissing their motor vehicle accident tort claim for delay.

The delay was primarily caused by the plaintiffs' former counsel focusing on statutory accident benefits claims and mistakenly believing the defendant had been noted in default.

The court applied a contextual approach, finding the delay was adequately explained, resulted from counsel's inadvertence, and caused no actual prejudice to the defendant.

The motion was granted and the dismissal order was set aside.

The plaintiff brought a motion to set aside a registrar's order dismissing her wrongful dismissal action.

The defendant argued the motion was improperly brought on behalf of the plaintiff's lawyer, who had delayed taking action for over two years due to panic and embarrassment.

The court rejected the standing argument and applied the Reid factors, finding that the delay was caused by solicitor negligence rather than apathy, and that the defendant suffered no prejudice and had acted opportunistically.

The motion was granted and the dismissal order was set aside.

The plaintiff brought a motion to set aside a registrar’s order dismissing the action for delay and to restore the matter to the trial list.

The underlying claim concerned damages for breach of a commercial lease and alleged damage to fixtures following the defendant’s departure from leased premises.

The court considered the established factors governing whether a dismissal for delay should be set aside, including explanation for delay, inadvertence, promptness of the motion, and prejudice to the defendant.

The delay was largely attributable to serious injuries suffered by the plaintiff’s counsel and inadvertent failure to respond to a status notice.

Finding the delay explained and no significant prejudice to the defendant, the court set aside the dismissal and restored the action to the trial list.

The plaintiff in a medical malpractice action moved for an order nunc pro tunc to extend the deadlines set out in a previous consent timetable order.

The court applied the test for setting aside a Registrar's dismissal order, considering the explanation for delay, inadvertence, promptness of the motion, and prejudice to the defendants.

Finding the plaintiff's explanations for missing multiple deadlines inadequate and not the result of inadvertence, the court dismissed the motion and directed the Registrar to dismiss the action for noncompliance.

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.

The plaintiff brought a show cause motion at a status hearing under Rule 48.14 to avoid dismissal of an action for delay.

The claim sought entitlement to critical illness benefits under an insurance policy after a thyroid cancer diagnosis, which the insurer denied based on alleged misrepresentations regarding depression treatment in the application.

The court applied the contextual two‑part test requiring an acceptable explanation for delay and absence of non‑compensable prejudice.

Although the explanation for portions of the delay was weak and attributed largely to solicitor inadvertence, the court held it was acceptable when considered in context, including the defendant’s delayed document disclosure and the document‑driven nature of the dispute.

The court also found no evidence of non‑compensable prejudice to the insurer and rejected speculative claims of future prejudice.

The action was permitted to proceed and the plaintiff was directed to establish a timetable for the litigation.

The defendant moved to enforce a settlement agreement reached via email shortly before trial.

The plaintiff opposed the motion, arguing the offer did not comply with Rule 49, there was no meeting of the minds, and she had a right to rescind under the Statutory Accident Benefits regulations.

The court found the offer was clear and unconditionally accepted, and that misapprehension by plaintiff's counsel did not void the settlement.

Following appellate authority, the court held that engaging in litigation precludes relying on SABS rescission rights to avoid a Rule 49 settlement.

The motion to enforce the settlement was granted.