Mark Edward Paul Cavanaugh

The defendant brought a motion to strike the plaintiff’s statement of claim without leave to amend under Rules 21.01 and 25.11 of the Rules of Civil Procedure.

The claim alleged conspiracy, fraudulent misrepresentation, and negligence arising from the defendant’s conduct and counsel’s conduct in a separate ongoing action between the same parties.

The court held that the pleading disclosed no reasonable cause of action because a separate lawsuit cannot be used to challenge litigation conduct occurring in another proceeding.

The court further found that another proceeding between the same parties concerning the same subject matter was already pending, rendering the new action improper and abusive.

The statement of claim was struck without leave to amend, the action was dismissed, and the plaintiff was prohibited from commencing further proceedings against the defendant without leave of the court.

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.