Adam Patel

The plaintiff was successful on a motion for a status hearing and successfully defended the defendant's motion to dismiss the action for delay.

The plaintiff sought costs of $36,301.47 on a substantial indemnity basis or $20,220.19 on a partial indemnity basis.

The court declined to award costs to the plaintiff, finding that the plaintiff had required an indulgence from the court to proceed with the action due to delay, and had improperly set the matter down for trial without a status hearing.

Each party was ordered to bear their own costs.

The plaintiff, a creditor of a bankrupt lawyer, sought to proceed with an action to collect a debt allegedly owed by the defendant, a former client of the lawyer.

The defendant moved to dismiss the action for delay, citing the 11.5 years since the action commenced.

The court found that while the delay was inordinate, it was excusable due to the lawyer's bankruptcy and the time required for the plaintiff to obtain a section 38 order under the Bankruptcy and Insolvency Act.

The court also found no substantial risk to a fair trial, as relevant documents and witnesses were available.

The defendant's motion to dismiss was denied, and the action was allowed to proceed.