The plaintiff's personal injury action was dismissed for delay by the registrar after a status notice was not served on the plaintiff or his counsel due to an administrative error.
The plaintiff's counsel discovered the dismissal order shortly after but waited two years to bring a motion to set it aside.
The motion judge dismissed the motion due to the delay.
On appeal, the Court of Appeal held that while the failure to serve the status notice was an irregularity rather than a jurisdictional error, the motion judge erred by applying a rigid test instead of a contextual approach.
Balancing all factors, including the lack of prejudice to the defendants, the Court set aside the dismissal order and reinstated the action.
