The plaintiff brought a motion to set aside an order dismissing its construction lien action for failure to set the action down for trial within the time required under the Construction Lien Act.
The delay resulted from failures by the plaintiff’s in‑house counsel, who had misinformed the plaintiff about the status of the case.
The defendant opposed restoration of the action, arguing prejudice due to the death of a key witness and lack of merit in the plaintiff’s claim.
The court held that dismissal orders may be set aside where a fair trial remains possible and no substantial prejudice arises from delay.
Finding that the dispute would primarily turn on expert evidence and that documentary records could substitute for the deceased witness’s testimony, the court concluded that the defendant would not suffer irreparable prejudice and restored the action.
