Timothy S.B. Danson

The defendants, former legal counsel for the plaintiffs, brought a motion for summary judgment to dismiss the plaintiffs' solicitor negligence action on the basis that it was statute-barred.

The plaintiffs alleged the defendants were negligent in failing to argue the unconscionability and public policy branches of the Tercon test regarding an exclusion clause in the underlying trial against Toyota.

The court dismissed the summary judgment motion, finding that the limitation period did not begin to run until the Supreme Court of Canada denied leave to appeal in the underlying action, as the plaintiffs reasonably relied on the defendants' advice to pursue appeals and a legal proceeding was not an 'appropriate means' to seek a remedy until the appeal process was exhausted.

The plaintiffs brought a motion to extend the date by which their defamation action must be set down for trial, after failing to meet a consent timetable order due to an overlooked mandatory mediation requirement.

The court treated the motion similarly to one setting aside a registrar's dismissal order and applied the Reid factors.

Finding that the delay was adequately explained, the failure to set down was inadvertent, the motion was brought promptly, and the defendants suffered no actual prejudice, the Master granted the extension.

No costs were awarded as the plaintiffs required an indulgence from the court.