CITATION: Cripps v. Corporation of the city of Thunder Bay, 2026 ONSC 3864

COURT FILE NO.: CV-18-0556-00

DATE: 2026-07-02

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

ASHLEY CRIPPS

D. Lester, for the Plaintiff

Plaintiff

• and -

THE CORPORATION OF THE CITY OF THUNDER BAY

E. Prpic, for the Defendant

Defendant

HEARD: June 4, 2026, in Thunder Bay, via Zoom

Justice W.D. Newton R.S.J.

Decision On Motion

Overview

1The plaintiff seeks an order setting aside the Registrar’s Order dated June 30, 2025, dismissing her action for delay (the “Dismissal Order”).

2For the reasons that follow, the Registrar’s Dismissal Order is set aside.

The Facts

3On November 22, 2016, the plaintiff fell after disembarking from a City bus. She alleges that the City failed to keep the bus stop free of hazards and that, as a result of her fall, she sustained injuries and suffered damages.

Procedural History to Date

4The statement of claim was issued on November 20, 2018, and served on the City on November 23, 2018.

5From 2019 to June 2021, the plaintiff resided in England. She returned to Canada after the pandemic restrictions were lifted. In June 2022, she gave birth to her daughter. She deposed that she had difficulty communicating with her lawyers due to her employment, due to her being in England, and due to the pandemic.

6The plaintiff’s counsel provided a draft affidavit of documents to counsel for the City in early 2021, however, counsel for the City insisted that examination for discovery would not proceed until the plaintiff provided up to date damage documentation, including medical records.

7The City delivered its statement of defence on April 21, 2023. New counsel for the City was appointed in November 2023.

8On November 30, 2023, the plaintiff applied for and received an order that the action would not be dismissed pursuant to r. 48.14 of the Rules¹ and a litigation timetable was imposed. The timetable provided for production of certain records from the plaintiff and for the action to be set down for trial by November 30, 2024. The Order also provided that the action should not be dismissed pursuant to r. 48.18.

9The plaintiff delivered a sworn affidavit of documents on January 5, 2024.

10Examinations for discoveries were completed on May 16, 2024. Both parties provided answers to undertakings which included correspondence from counsel for the City answering the City’s undertakings on January 12, 2025.

11Counsel for the plaintiff did not diarize the new date specified for setting the action down by the November 30, 2023 Order.

12On July 4, 2025, counsel for the plaintiff received the Registrar’s Dismissal Order.

13Counsel for the plaintiff did not receive any communication from counsel for the City between February 2025 and July 4, 2025, the date the Dismissal Order was received.

14Counsel spoke about the Dismissal Order on August 20, 2025, and a settlement proposal was subsequently delivered. By email dated August 29, 2025, counsel for the City rejected the plaintiff’s settlement proposal, noted that undertakings were still outstanding, and advised that the City was not prepared to consent to an order setting aside the Registrar’s Dismissal Order.

15The plaintiff delivered her motion to set aside the Registrar’s Dismissal Order on March 9, 2026. The motion was returnable on March 26, 2026.

16A supplementary affidavit filed by counsel for the plaintiff advised that their office reported the claim to LawPro in October 2025 and that the motion material was delivered once LawPro reviewed and approved the motion material.

Positions of the Parties

17The parties agree on the applicable law but disagree on the application of that law to the facts of this case.

18In Piedrahita v. Costin,² the Court of Appeal for Ontario summarized the test to be applied for a dismissal order for delay as follows:

a. have the plaintiffs provided a satisfactory explanation for the litigation delay;

b. have the plaintiffs led satisfactory evidence to explain that they always intended to prosecute the action within the applicable time limits but failed to do so through inadvertence;

c. have the plaintiffs demonstrated that they moved forthwith to set aside the dismissal order as soon as the order came to their attention; and

d. have the plaintiffs convinced 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?

19A contextual approach is required. The court must weigh and consider all relevant factors to the determine the order that is just:³

… the overriding objective is to achieve a result that that balances the interests of the parties and takes account of the public’s interest in the timely resolution of disputes.⁴

20In H.B. Fuller Company v. Rogers (Rogers Law Office),⁵ the Court of Appeal for Ontario described the balancing required in this way:

25The factors that guide the court’s choice between ending the plaintiff’s action before trial and forcing the opposite party to defend the case despite the delay require a judge to resolve the tension between two underlying policies. The first is that civil actions should be decided on their merits. The second is that civil actions should be resolved in a timely and efficient manner in order to maintain public confidence in the administration of justice [Citations omitted].

21The plaintiff submits that the delay is not inordinate and is adequately explained by her change in residence, Covid, and the birth of her child. The failure to meet the deadline set by the prior order was due to inadvertence of counsel in failing to diarize the deadline. This motion was brought promptly considering LawPro’s involvement. The defendant’s ability to defend the action has not been prejudiced by the delay and the City has acquiesced to some of the delay.

22The City submits that the delay is inordinate as it surpasses the five-year time limit set out in r. 48.14, it has not been adequately explained, and counsel’s inadvertence does not explain all the delay. The City submits that the motion was not brought promptly as required by r. 37.14(1). As the incident giving rise to the claim occurred over nine years ago, the City submits that the passage of time alone results in prejudice sufficient to dismiss the motion. Relying on Gutcher v. Welland Retirement Suites Limited,⁶ and other cases, the City argues that a “tolerant attitude towards delay is out of step with” the goals of the justice system.

Analysis and Disposition

23Motions to set aside dismissal orders made by the Registrar always turn on the unique facts of each case.

24The first unique fact is that there was an Order in place from November 30, 2023, which provided that the action shall not be dismissed pursuant to r. 48.14. Despite this Order, the Registrar issued an Order pursuant to r. 48.14 dismissing the action for delay on June 30, 2025.

25The second unique fact is that the November 30, 2023, Order provided that the time to set down the action for trial was extended to November 30, 2024. Through inadvertence, counsel did not diarize that date and the action was not set down by then. Prior to that deadline, the plaintiff delivered a sworn affidavit of documents and discoveries of all parties were completed in March 2024.

26The third unique fact is that there were no discussions between counsel about the missed deadline between the deadline on November 30, 2024, until, at least, the Registrar’s dismissal on June 30, 2025.

27I am satisfied that that the plaintiff has led satisfactory evidence explaining that she always intended to prosecute the action but that it was the plaintiff’s difficulty in communicating with counsel that led to much of the delay and led to the plaintiff’s counsel bringing the motion to extend the time to set the action down so the action would not be administratively dismissed in 2024.

28The delay in setting the action down by the Court ordered deadline is, I am satisfied, due to inadvertence of counsel.

29Counsel for the plaintiff did not comply with the timing directive for bringing a motion to set aside the Registrar’s Order, that is, forthwith and the first available hearing date: r. 37.14(1). Instead, the motion was not brought until about five months after counsel for the City advised that the City would not be consenting to an order setting aside the Dismissal Order. I accept that some of the delay would be involved with securing LawPro direction. Although the motion was initially returnable in March, I do not know why the motion did not proceed until June.

30As to prejudice, the prejudice I am to consider on a motion to set aside the Registrar’s Dismissal Order includes the defendant’s ability to defend the action arising from steps taken following dismissal.⁷ The plaintiff acknowledges that she bears the onus of establishing that there is no significant prejudice and states that the City had timely notice of the claim, including the statement of claim, and that discoveries have been completed. The plaintiff does not address the prejudice since the dismissal. The City’s submissions on prejudice focus on the passage of time generally, noting that, but for the November 2023 Order, the action would have been dismissed then as beyond five years from commencement. The City also does not address prejudice following the Dismissal Order. In the circumstances of this case, I find no significant prejudice to the City in presenting their case at trial as a result of the plaintiff’s delay,⁸ or as a result of steps taken following the dismissal of the action. Unless a delay is truly inordinate, “presumed prejudice alone will not usually justify depriving a plaintiff of their substantive rights.”⁹ Absent prejudice to the defendant, “the importance of deciding cases on their merits should take precedence” on the facts of this case.

31Considering all the factors in this case, the “balancing” favours a trial on the merits.

32The Registrar’s Order dated June 30, 2025, dismissing the action is set aside.

33As the plaintiff seeks a remedy attributable to her failure to comply with a procedural order, although successful, I exercise my discretion to not award any costs to the plaintiff.

34No submissions were made as to any procedural order required if I set aside the Dismissal Order. In the circumstances, I order that plaintiff is to serve a trial record by September 1, 2026. If a different procedural order is sought, counsel may seek a further attendance before me.

The Hon. Justice D. Newton R.S.J.

Footnotes

1. 1Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
2. 22023 ONCA 404, at para. 8.
3. 3See for example Prescott v. Barbon, 2018 ONCA 504, at para. 15 (“Prescott”).
4. 4Prescott, at para. 15.
5. 52015 ONCA 173 (“Fuller”).
6. 62026 ONCA 273.
7. 7See MDM Plastics Ltd. v. Vincor International Inc., 2015 ONCA 28, at para. 25; Fuller at para. 37; Francis v. Schneider, 2025 ONSC 2491, at para.33; and Reid v. Town of Bracebridge and Tatham, 2025 ONSC 2535, at para. 76.
8. 8Although delayed, discoveries are substantially complete.
9. 9Arumgasamy v. Subaschandiran, 2026 ONCA 102, at para. 16.