Dixon et al. v. Ryan et al. [Indexed as: Dixon v. Ryan]
111 O.R. (3d) 229
2012 ONSC 3353
Ontario Superior Court of Justice,
Platana J.
June 7, 2012
Civil procedure -- Dismissal for delay -- Setting aside -- Action dismissed for failure to set it down for trial within deadline set at status hearing -- Plaintiffs' motion to set aside that order granted -- Counsel for plaintiffs careless but acting inadvertently -- Action having passed discovery stage and other related actions still proceeding -- Defendants not filing any responding materials alleging that they would be prejudiced if action were reinstated -- Prejudice not inferred in these [page230] circumstances -- Plaintiffs bringing motion almost immediately after receiving notification of order dismissing action.
The plaintiffs sued for damages arising from motor vehicle collisions that occurred in January 2007. In May 2012, the action was dismissed under rule 48.14 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 for failing to set it down for trial within the deadline set at a status hearing. The plaintiffs moved to set aside that order.
Held, the motion should be granted.
There was evidence that the action had been moving forward. Discoveries had been held, experts' reports had been prepared and other related actions were still proceeding. Counsel for the plaintiffs was careless, but acted inadvertently. The defendants had not filed any responding materials alleging that they would be prejudiced if the action were reinstated. In the circumstances, prejudice should not be inferred. The plaintiffs brought the motion to set aside the order almost immediately after receiving notification of it. On balance, the order should be set aside in order to achieve a fair and just result.
MOTION to set aside an order dismissing an action for delay.
Cases referred to
Aguas v. Rivard Estate (2011), 107 O.R. (3d) 142, [2011] O.J. No. 3108, 2011 ONCA 494 , 7 C.P.C. (7th) 16, 282 O.A.C. 39, 335 D.L.R. (4th) 365, 203 A.C.W.S. (3d) 741;
Grégoire v. Sakto Corp., [2011] O.J. No. 5454, 2011 ONSC 7246 (S.C.J.);
Hamilton (City) v. Svedas Koyanagi Architects Inc. (2010), 104 O.R. (3d) 689, [2010] O.J. No. 5572, 2010 ONCA 887 , 271 O.A.C. 205, 328 D.L.R. (4th) 540, 97 C.L.R. (3d) 1, 2 C.P.C. (7th) 114;
Marché D'Alimentation v. Giant Tiger Stores Ltd. (2007), 87 O.R. (3d) 660, [2007] O.J. No. 3872, 2007 ONCA 695 , 47 C.P.C. (6th) 233, 286 D.L.R. (4th) 487, 247 O.A.C. 22;
Perera v. Pierre, [2009] O.J. No. 4241 (S.C.J.);
Scaini v. Prochnicki (2007), 85 O.R. (3d) 179, [2007] O.J. No. 299, 2007 ONCA 63 , 219 O.A.C. 317, 39 C.P.C. (6th) 1, 154 A.C.W.S. (3d) 1075;
Viola v. Tortorelli, [2010] O.J. No. 5022, 2010 ONSC 6148, 7 C.P.C. (7th) 163 (Div. Ct.);
Wellwood v. Ontario Provincial Police (2010), 102 O.R. (3d) 555, [2010] O.J. No. 2225, 2010 ONCA 386 , 262 O.A.C. 349, 90 C.P.C. (6th) 101
Rules and regulations referred to
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 1.04(1) , 37.14(2) , 48.14
Christopher D.J. Hacio, for plaintiffs.
Brian A. Babcock, for defendants George Ryan and Lawrence Cashmore.
Peter K. Foulds, for defendants Her Majesty the Queen and TWD Roads Management Inc.
Tracy Cresswell, for defendant Joseph LeBlanc.
[1] PLATANA J.: -- This is a motion by the plaintiffs to set aside a registrar's order dismissing this action under rule 48.14 [of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 ] for failure to set the action down for trial within the deadline set out at a status hearing. [page231] Background
[2] To give context to the issues which must be decided by me, I have included the relevant parts of the affidavit filed by a law clerk with the office of counsel for the plaintiffs:
I am a Law Clerk with the law firm Hacio Law, lawyer for the plaintiffs herein, and as such have knowledge of the matters to which I now depose in this my Affidavit.
This Action for personal injury damages arises as a result of sequential motor vehicle collisions which occurred on January 3rd, 2007. As a result, a number of Claims were issued which related to this collision. Mr. Hacio represents the plaintiffs in this Action.
A Status Hearing for this Action was scheduled for June 10, 2011. In attendance on Mr. Hacio's behalf was Ruby Van Bendegem. Other Counsel were there in person or they sent representatives. Following submissions by Counsel, Justice McCartney endorsed the Record on a number of issues one of which was set the matter down for Trial by the end of April 2012. Attached as Exhibit "A" to this my Affidavit is a copy of Justice McCartney's Endorsement dated June 10th, 2011. Attached as Exhibit "B" to this my affidavit is a copy of Ms. Van Bendegem email to Mr. Hacio confirming what transpired at the Status Hearing. Ms. Van Bendegem notes in her email that the matter was to be put over to the April 2012 Status Hearings. That is not in Judge McCartney's Endorsement.
Mr. Hacio attended the Status Hearing on April 27th, 2011 [See Note 1 below] expecting this matter to be on the list. It was not on the list. We had planned to ask that this action be put over with other related actions that arose out of the same accident. We knew they were on the list. Mr. Hacio and Mr. Babcock spoke to the presiding Justice, Justice Fitzpatrick, and explained that while other Actions related to the same accident were on the list this Action was not. The other related matters were put over to September 28, 2012 for a Status Hearing.
We received the Registrar's Order dismissing this Action for delay pursuant to Rule 48.14 on May 8th, 2012. We seek an Order setting aside the dismissal of this Action on the basis of the above.
[3] To give further context, I include the entire contents of exhibit B:
I spoke to Peter Foulds and Brian Babcock before attending at the status hearing today. Jennifer Lohuis appeared for Brian Babcock. We made our representations. Justice McCartney endorsed the record to say:
-- all experts have been retained;
-- all discoveries have been completed; [page232]
-- outstanding undertaking are to be completed;
-- the final report of the accident reconstruction expert was to be provided (if it's going to be) by the end of October 2011 (counsel agreed on this time frame); and
-- the matter is to be set down for trial by the end of April 2012 (counsel agreed on this time frame).
The matter was put over to the April 2013 for a status hearing. The Law
[4] There is no dispute between counsel as to the applicable Rules and the law. In Perera v. Pierre, [2009] O.J. No. 4241 (S.C.J.), at paras. 3-6 , Master R. Dash addressed the law as follows:
The dismissal order was made pursuant to rule 48.14(4) which provides:
Where an action is not set down for trial or terminated by any means within the time specified in an order made at a status hearing, the registrar shall dismiss the action for delay, with costs.
The motion is brought pursuant to rule 37.14(1) which provides:
A party or other person who . . .
(c) is affected by an order of a registrar,
may move to set aside or vary the order, by a notice of motion that is served forthwith after the order comes to the person's attention and names the first available hearing date that is at least three days after service of the notice of motion.
The test that the court is to adopt in determining whether a registrar's dismissal made under rule 48.14 should be set aside has been set out by the Court of Appeal in Scaini v. Prochnicki (2007), 2007 ONCA 63 () , 85 O.R. (3d) 179, [2007] O.J. No. 299 (C.A.) and Marché D'Alimentation Denis Thériault Lteé v. Giant Tiger Stores Ltd. (2007), 2007 ONCA 695 () , 87 O.R. (3d) 660, [2007] O.J. No. 3872 (C.A.). The court is to adopt a contextual approach and weigh all relevant factors, including the four factors set out in Reid v. Dow Corning Corp., [2001] O.J. No. 2365, 11 C.P.C. (5th) 80 , reversed on other grounds [2002] O.J. No. 3414, 48 C.P.C. (5th) 93 (Div. Ct.) , which are of central importance in most cases, in order to determine what is just in all of the circumstances of the particular case.
The four Reid factors, as summarized in paragraph 12 of Marché are set out as follows: (1) Explanation of the Litigation Delay: The plaintiff must adequately explain the delay in the progress of the litigation from the institution of the action until the deadline for setting the action down for trial as set out in the status notice. She must satisfy the court that steps were being taken to advance the litigation toward trial, or if such steps were not taken to explain why . . . If either the solicitor or the client made a deliberate decision not to advance the litigation toward trial then the motion to set aside the dismissal will fail. [page233] (2) Inadvertence in Missing the Deadline: The plaintiff or her solicitor must lead satisfactory evidence to explain that they always intended to set the action down within the time limit set out in the status notice, or request a status hearing, but failed to do so through inadvertence. In other words the penultimate dismissal order was made as a result of inadvertence. (3) The Motion is Brought Promptly: The plaintiff must demonstrate that she moved forthwith to set aside the dismissal order as soon as the order came to her attention. (4) No Prejudice to the Defendant: The plaintiff must convince the court that the defendants have not demonstrated any significant prejudice in presenting their case at trial as a result of the plaintiff's delay or as a result of steps taken following the dismissal of the action.
Although the plaintiff is not required to rigidly satisfy each of the four factors, the four factors are of central importance and are to be considered and weighed together with any other relevant factors in order that the court may make such order as is just in the circumstances. Position of Plaintiffs
[5] Mr. Hacio notes that this claim was issued in 2008 and pleadings were closed in December 2008. The plaintiff is a defendant in other actions.
[6] Mr. Hacio argues that although the e-mail from Ms. Van Bendegem references the matter being put over to the April 2012 status hearings, that is not in the endorsement of Justice McCartney. Mr. Hacio attended the April 2012 status hearing court and this action was not on the list. All other matters related to this action were put over to the September 28, 2012 status hearings list.
[7] Mr. Hacio relies on rule 37.14(2) and argues that I can make the order requested "on such terms as are just". He further refers me to rule 1.04(1) and submits that the rules should be interpreted liberally.
[8] He relies upon the decision in Hamilton (City) v. Svedas Koyanagi Architects Inc. (2010), 2010 ONCA 887 () , 104 O.R. (3d) 689, [2010] O.J. No. 5572 (C.A.), where the court set out the following considerations which should be weighed in determining whether an order setting aside a dismissal should be granted:
-- the length of the delay;
-- whether the plaintiff has adequately explained the delay;
-- whether the delay has prejudiced the defendants;
-- whether the dismissal order resulted from a lawyers inadvertence; and [page234]
-- whether after becoming aware of the dismissal order, the plaintiff moved reasonably promptly to set it aside. The court noted that these factors are not exhaustive and that the court's overriding objective is to achieve a just result.
[9] Mr. Hacio submits that the onus is on the defendants to show that any delay has caused them actual prejudice. He submits that, by not having filed any materials in response to this motion, the defendants have not established any prejudice and I may therefore infer that there is no prejudice, either deemed or actual, to the defendants.
[10] He further refers me to the decision of Master Dash in Perera v. Pierre, supra, where, after considering the four Reid factors, the master dismissed the plaintiff's motion to set aside a dismissal order. Although the dismissal order was not set aside, Mr. Hacio argues that the master commented on the prejudice factor. In that decision, the master found that there was no solicitor inadvertence, but rather the opposite. Further, there was no reliable evidence of the plaintiff's intention to proceed with the motion. Mr. Hacio focused specifically on the comment that "the defendants have not demonstrated any significant prejudice in presenting their case at trial as a result of the plaintiff's delay". Mr. Hacio also references the consideration of Master Dash that the Reid factors must be weighed together with any other relevant factors and that the ultimate goal of the court is to make an order that is "just in the circumstances".
[11] Mr. Hacio has also referred me to the decision in Viola v. Tortorelli, [2010] O.J. No. 5022, 2010 ONSC 6148 (Div. Ct.) , where Justice Herman, sitting in Divisional Court, set aside an order of dismissal where the master had placed too significant an emphasis on the factor of inadvertence and had made a finding that the plaintiff had not established inadvertence. In the same case, Mr. Hacio references two other factors that were key to the Divisional Court ruling. As the court noted [at para. 62]:
Firstly, the absence of prejudice will generally favour setting aside the dismissal order. There is prejudice here. Secondly, in general, a party should not lose his or her right to proceed due to the inadvertence of counsel[.] Position of Defendants
[12] Mr. Foulds, for the defendants Her Majesty the Queen and TWD Roads Management Inc., referred me to the decision in Marché D'Alimentation v. Giant Tiger Stores Ltd. (2007), 87 O.R. (3d) 660, [2007] O.J. No. 3872, 2007 ONCA 695 and the Reid factors referred to therein. Mr. Foulds argument is that the plaintiffs have not presented any evidence in this motion [page235] material explaining the litigation delay or the inadvertence in missing the deadline. He specifically refers to the e-mail which is exhibit B to the affidavit, which I have earlier produced. The e-mail clearly states, "The matter is to be set down for trial by the end of April 2012 (counsel agreed on this timeframe.)" Mr. Foulds argues that there is nothing in the affidavit that says the deadline for setting the matter down for trial in this case was missed by inadvertence or otherwise. He posits to me that if court-ordered deadlines are not met, counsel will not take into account that there is a purpose to such order. Mr. Foulds agrees that the four factors listed in Reid are not exclusive but submits that they are of central importance.
[13] He responds to Mr. Hacio's submission with respect to rule 1.04(1) by referencing Hamilton (City) v. Svedas Koyanagi, at paras. 20 and 21, where the court balances the two competing principles, (1) that civil actions should be decided on their merits and (2) that civil actions should be resolved within a reasonable timeframe.
[14] Ms. Cresswell, for the defendant Joseph LeBlanc, makes no specific submissions and relies upon the positions of the other defendants.
[15] Mr. Babcock, for the defendants George Ryan and Lawrence Cashmore, submits that there is no explanation in the motion material as to why the order to set the matter down for trial was not complied with. He argues that neither of the first two parts of the Reid test are met, and in the absence of any explanation for not having complied with the order of McCartney J., the plaintiffs' motion must fail.
[16] He refers me to Grégoire v. Sakto Corp., [2011] O.J. No. 5454, 2011 ONSC 7246 (S.C.J.) , where Master McLeod found [at paras. 20-21] that "the plaintiff's evidence fails to address the first factor in any meaningful way . . . Ordinarily I would consider that failure to be significant if not fatal." In that case, the delay was considered in light of an extended timetable agreed to by the defendants. The master did not consider it fair and just to allow the defendant to reconsider an earlier consent to extend the timetable because the plaintiff failed to file a status hearing.
[17] In referencing the decision in Viola v. Tortorelli, Mr. Babcock points [to] para. 45 of that decision, where Justice Herman states, "The Master also correctly noted that the absence of prejudice is not the sole criterion." Justice Herman further noted [at para. 50], with approval, the master's comments that "A plaintiff in a motion to set aside a Registrar's order is obliged to 'lead trump' and 'put his best foot forward'." [page236]
[18] Mr. Babcock points out that there is no explanation in the motion material as to why, five years post-accident, this matter is not set down for trial.
[19] Mr. Babcock further references the decision in Perera v. Pierre, where the master relied on the fact that no evidence was given indicating the deadline was missed by inadvertence. Further, no reliable evidence with respect to the plaintiff's intention to proceed with the action, or to have it set down by the court-ordered deadline, was provided. He notes that the master also commented that the evidence in support of setting aside the registrar's dismissal in that case was "scant and deficient". Mr. Babcock argues that the same circumstance are present in this case. He notes that the master's decision was ultimately overturned on appeal; however, the appeal was granted based on palpable and overriding error in certain factual findings.
[20] In contrast to the scant and deficient reference to evidence, Mr. Babcock refers me to Hamilton (City) v. Svedas and the very extensive affidavit evidence presented to that court in support of the motion to set aside. It is this type of evidence that Mr. Babcock argues should have been presented on this motion in order for me to have an appropriate evidentiary basis to determine the issue. He relies on the decision in Wellwood v. Ontario Provincial Police (2010), 102 O.R. (3d) 555, [2010] O.J. No. 2225, 2010 ONCA 386 and the significant details presented to the court addressing the four Reid factors. He further notes that the decision in Wellwood relies upon the overlying approach established in Scaini v. Prochnicki (2007), 2007 ONCA 63 () , 85 O.R. (3d) 179, [2007] O.J. No. 299 (C.A.), where the court stated [at para. 24]:
The key point is that the court consider and weigh all relevant factors to determine the order that is just in the circumstances of the particular case.
[21] Dealing specifically with the fourth Reid factor, prejudice, Mr. Babcock references para. 60 of the Wellwood decision, where the court states:
. . . the expiry of a limitation period can give rise to some presumptive prejudice, the strength of which increases with the passage of time. Where the presumption arises, the plaintiff bears the burden of rebutting the presumption on proper evidence. Where the presumption is so displaced, the onus shifts to the defendant to establish actual prejudice.
[22] In summary, Mr. Babcock argues that part one of the test has not been met at all and that part two has either not been met at all, or inadequately, even if there is no prejudice established.
[23] In reply, Mr. Hacio asks me to infer that because the defendants did not reply to the issue of prejudice, this is not a situation where prejudice should be inferred or deemed. He [page237] further submits that from a reading of cases surrounding this issue, the court generally did not set aside a dismissal order where a number of the factors enunciated in Reid were not adhered to. He submits that where only one factor worked against the plaintiff, dismissal was generally granted. Discussion
[24] In Marché D'Alimentation Denis Thériault Lteé v. Giant Tiger Stores Ltd., supra, paras. 20 and 21, the court stated:
In Scaini v. Prochnicki (2007), 2007 ONCA 63 () , 85 O.R. (3d) 179 (C.A.), a decision handed down after those of both the Master and the Divisional Court, this court reversed the line of authority that had strictly required a moving party to satisfy each element of the four-part test in Reid v. Dow Corning Corp., supra. Writing for the court, Goudge J.A. stated at paras. 23-24 that "a contextual approach . . . is to be preferred to a rigid test requiring an appellant to satisfy each one of a fixed set of criteria." The four Reid criteria are "likely to be of central importance in most cases," but they are not exhaustive and "[t]he key point is that the court consider and weigh all relevant factors to determine the order that is just in the circumstances of the particular case."
The contextual approach mandated by Scaini to determine what "is just in the circumstances of the particular case" invites the application of important underlying principles and values of the civil justice system that are inherent in the four Reid factors. As I read his reasons, the Master's interpretation of the four Reid factors implicitly embraced these principles and values.
[25] In Hamilton (City) v. Svedas Koyanagi Architects Inc., supra, the Court of Appeal confirmed that [at paras. 19-23]:
Judges' decisions on whether to set aside a registrar's order dismissing an action for delay are discretionary. The general principles and specific considerations that structure the exercise of this discretion are well established: see Scaini v. Prochnicki (2007), 2007 ONCA 63 () , 85 O.R. (3d) 179 (C.A.); Marché D'Alimentation Denis Thériault Lteé v. Giant Tiger Stores Ltd. (2007), 2007 ONCA 695 () , 87 O.R. (3d) 660 (C.A.); Finlay v. Van Paassen (2010), 2010 ONCA 204 () , 266 O.A.C. 239 (C.A.).
Two principles of our civil justice system and our Rules of Civil Procedure come into play. The first, reflected in rule 1.04(1) , is that civil actions should be decided on their merits. As the motion judge said at para. 31 of his reasons: "the court's bias is in favour of deciding matters on their merits rather than terminating rights on procedural grounds."
The second principle, reflected in the various time limits mandated by our rules, and indeed, as noted by the motion judge, in the provision for a status notice and hearing, is that civil actions should be resolved within a reasonable timeframe. In Marché, at para. 25, my colleague Sharpe J.A. wrote about the strong public interest in promoting the timely resolution of disputes. Both the litigants and the public have an interest in timely justice. Their confidence in the administration of our civil justice system depends on it.
On motions to set aside an order dismissing an action for delay, invariably there is tension between these two principles. In seeking to give effect to [page238] these principles, motion judges must take account of and weight a list of considerations. These considerations typically include:
-- The length of the delay;
-- Whether the plaintiff has adequately explained the delay;
-- Whether the delay has prejudiced the defendants;
-- Whether the dismissal order resulted from a lawyer's inadvertence; and
-- Whether, after becoming aware of the dismissal order, the plaintiff moved reasonably promptly to set it aside.
This list is not exhaustive. Moreover, which considerations are relevant and how much weight should be assigned to each will vary from case to case. The court's overriding objective is to achieve a just result -- a result that balances the interests of the parties and takes account of the public's interest in the timely resolution of disputes.
[26] With respect to the length of the delay, there is nothing specific in the affidavit which details the manner of proceeding with this action to date. The evidence does indicate that the accident occurred on January 3, 2007, and the only other reference is that a status hearing was scheduled for June 10, 2011. I do note, however, that in reviewing exhibit B to the affidavit, the record was endorsed on that date that all experts had been retained; all discoveries had been completed; outstanding undertakings are to be completed. That is evidence that the action had been moving forward. Additionally, the affidavit indicates that there are related actions which are proceeding and those actions were put over to September 28, 2012.
[27] The affidavit material does not specifically and clearly address the issue of any delay. In Gregoire v. Sakto Corp., the master found [at para. 21] that there was no explanation for the inactivity between December 2009 and July 2011. He stated that "ordinarily I would consider that failure to be significant if not fatal". The master went on to note that the Reid factors are not a rigid checklist and all of the factors must be considered when applying the contextual approach set out in Scaini v. Prochnicki. In looking at any explanation for the delay in this case, I have considered that the e-mail filed as an exhibit to the affidavit sets out the factors above, which I have referred to in addressing the length of the delay. The issue then becomes the delay between the June 2011 status hearing date and the April 2012 failure to meet the deadline to set the matter down for trial. In looking at this from a contextual aspect, the material is clear that the plaintiffs' counsel did in fact appear, apparently in response to the e- mail saying the matter was on the status hearings list of April 27. I query why, when it was discovered that this action [page239] was not on the list, immediate action was not taken to determine why not. However, I am guided by the statement of Sharpe J.A. in Marché, where he stated, at para. 31:
[T]he nature of the delay and the solicitor's conduct in this case amount to more than that kind of lapse or inadvertent mistake that the legal system can countenance. I do not consider that in the facts of this case it can be said that the plaintiff made a deliberate decision to ignore the date. Although the plaintiffs counsel did not specifically address each of the required parts of the tests in the affidavit filed, the material does permit me to find that plaintiffs counsel was carelessness but acted inadvertently. Counsel's action is questionable and perhaps not totally understandable; however, it does not in my view go beyond the kind of lapse or inadvertent mistake that the legal system can countenance. As noted in Perera:
The conduct of plaintiffs counsel is not the type, if excused by the court, that would bring the administration of justice into disrepute.
[28] Neither plaintiffs nor defendants provided affidavit evidence specifically directed to the issue of prejudice. Mr. Hacio references Viola v. Tortorelli, where the master found no prejudice to the defendants, and stated that an indulgence to the plaintiff is generally favoured where there is no prejudice. In that same case, the master commented that the absence of prejudice is not the sole criterion.
[29] In Hamilton (City) v. Svedas, the defendants filed affidavits indicating that they had been prejudiced by a long delay because important witnesses were either unavailable, or could no longer recall the circumstances of the events. In Aguas v. Rivard Estate (2011), 107 O.R. (3d) 142, [2011] O.J. No. 3108, 2011 ONCA 494 , Rosenberg J.A. found that, in the circumstances of that case, prejudice could be inferred and that the presumption of prejudice arose because of the passage of time, considering the limitation period had expired. As I understand the cases referred to me, it is clear that in appropriate circumstances, prejudice can be inferred from the lengthy passage of time, the nature of the action and the expiration of the limitation period.
[30] Having said that, the burden is on the plaintiffs to "convince the court that the Defendants have not demonstrated any significant prejudice in presenting their case at trial as a result of the plaintiffs' delay or as a result of steps taken following the dismissal of the action".: see Marché, at para. 12. Mr. Hacio relies upon the fact that the defendants did not file any affidavit material suggesting prejudice and asks me to infer that no prejudice should be taken into account. In this case, the defendants made [page240] no specific argument suggesting that prejudice should be inferred or deemed and instead relied upon the fact that the onus was on the plaintiffs to establish no prejudice. Mr. Hacio submits that a number of the cases which I was referred to by the defendants referenced significant affidavit materials filed by the defendants such that the court had an initial basis upon which to determine whether the plaintiff had satisfied the onus or not. In the circumstances before me, I have again considered the history of this matter. As I noted earlier, examinations have been held, experts' reports have been prepared and there are other related actions that are still proceeding. In the face of those factors, and specifically when the defendants have not filed any responding materials alleging prejudice, I find that this is not a circumstance where I should infer or deem prejudice towards the defendants. The plaintiffs therefore have satisfied the onus that there is no prejudice to the defendants if this action is reinstated.
[31] With respect to the factor of moving promptly after becoming aware of the dismissal order, it is abundantly clear that the plaintiffs moved virtually immediately after receiving notification of the order.
[32] In considering all of the above factors, I am mindful of the balancing of the two principles of timely disposition and finality. The overriding objective is to achieve a just result that balances the interests of the parties and takes account of the public's interest in the timely resolution of disputes.
[33] Despite the failure of the plaintiffs to specifically address the factors to be dealt with in their affidavit, there is sufficient evidence for me to find that on a balancing of factors, and taking a contextual approach, I am led to the conclusion that in order to achieve a fair and just result in this case the motion should be granted. An order shall issue setting aside the registrar's dismissal of this action.
[34] In the circumstances, although the plaintiffs have been successful on their motion, I am not awarding costs in this instance because this motion was made necessary solely because of the actions of the plaintiffs in missing the deadline for setting the matter down. Furthermore, the affidavit material provided by the plaintiffs in this case, although sufficient for me to exercise my discretion in their favour, certainly cannot be considered to be reflective of any significant thought and time.
[35] This matter should be placed on the status hearing court of September 28, 2012.
Motion granted.
Notes
Note 1: This is the date in the affidavit which I have assumed should correctly read 2012.