Rachel E. Pano

The plaintiff moved under Rule 37.14 to set aside a registrar’s order dismissing the action for delay after the matter was not set down for trial following a status notice.

The court applied the contextual approach endorsed in Scaini v. Prochnicki and considered the four Reid v. Dow Corning criteria: explanation for delay, intention to proceed, promptness of the motion, and prejudice to the defendants.

Although the litigation had experienced significant delay largely attributable to plaintiff’s counsel, the court found the failures resulted from inadvertence rather than deliberate disregard of the Rules of Civil Procedure.

The defendants failed to demonstrate meaningful actual prejudice beyond generic concerns about faded memories, particularly because examinations for discovery had already occurred.

Balancing the interests of the parties, the court set aside the dismissal, dispensed with mandatory mediation to avoid further delay, and ordered the plaintiff to set the action down for trial within 30 days while paying costs to several defendants.

An insurer appealed a loss transfer arbitration decision that apportioned fault for a snowmobile–automobile collision under the Insurance Act regime.

The arbitrator determined that the Fault Determination Rules did not apply to the circumstances and instead assessed liability using ordinary negligence principles, finding the snowmobile operator primarily responsible and the automobile driver partially responsible.

On appeal, the insurer argued the arbitrator erred in law by concluding the collision fell outside the regulatory fault rules.

The court held that the arbitrator’s determination involved questions of mixed fact and law and was therefore outside the limited right of appeal restricted to questions of law.

Applying a deferential standard of reasonableness, the court found no reviewable error and upheld the arbitration award.