R.J. Hooper

Following the successful motion by the plaintiff to set aside a registrar's dismissal order, the parties could not agree on costs.

The defendant argued that no costs should be awarded because the plaintiff was granted an indulgence due to her former counsel's negligence.

The court held that while the plaintiff received an indulgence, the defendant's unreasonable opposition and failure to accept a reasonable offer to settle warranted a costs award.

The plaintiff was awarded $6,000 in costs on a partial indemnity scale.

The plaintiff moved to set aside a Registrar's order dismissing her action for delay.

The court considered the four factors from Reid v. Dow Corning Corp., finding that the plaintiff provided a satisfactory explanation for delay, largely due to her former counsel's misconduct and illness, and that the failure to set the action down was inadvertent.

The motion was brought promptly, and the defendant failed to demonstrate actual prejudice.

Emphasizing the principle that a client should not be irrevocably jeopardized by counsel's neglect, the court granted the motion to set aside the dismissal order, allowing the action to proceed to a determination on its merits.