The plaintiff commenced an action for negligence after a fire on the defendant's railway lands damaged its business.
The action was struck from the trial list due to outstanding undertakings and later administratively dismissed for delay after a motion judge refused to restore it.
The Court of Appeal allowed the appeal, finding the motion judge erred in principle by focusing on allocating blame for the delay rather than whether the plaintiff's explanation was reasonable, and by presuming prejudice from the passage of time.
The Court reweighed the evidence, found the plaintiff's explanation acceptable and no non-compensable prejudice to the defendant, and ordered the action restored to the trial list.
