The appellant appealed an order dismissing her action for delay.
The Court of Appeal found the motions judge erred in principle, as the delay was neither inordinate nor inexcusable.
The appellant had made efforts to move the matter along, and the failure to schedule discoveries was partly due to the respondents.
Furthermore, any presumption of prejudice was rebutted because the deceased witness died within the limitation period, evidence of faded memories was tenuous, and witness statements were available to refresh memories.
The appeal was allowed and the motion to dismiss for delay was dismissed.
