William D. Howse

The plaintiff, Svitlana Novak, sued the defendants for breach of contract and misrepresentation, alleging she was promised a full-time recreation assistant position that was subsequently given to another individual.

The defendants denied any such agreement or representation and raised a limitations defense.

The court dismissed the plaintiff's claim, finding it was statute-barred under the Limitations Act, 2002, as the plaintiff failed to rebut the statutory presumption of discoverability.

Alternatively, the court found the plaintiff failed to prove on a balance of probabilities that a guaranteed full-time employment agreement or specific representation was made.

The plaintiff brought a motion to set aside a registrar’s dismissal order for delay after the action was not set down for trial by a court‑ordered deadline.

The court applied the contextual approach articulated in appellate authority and considered the four factors governing such motions: explanation for delay, inadvertence, promptness of the motion, and prejudice.

Although the plaintiff failed to provide an adequate explanation for the prolonged litigation delay and did not establish inadvertence, the court found the motion was brought promptly and that the presumption of prejudice was rebutted.

Evidence of a Canada Revenue Agency investigation into the same investment demonstrated preservation of relevant documents and undermined claims of prejudice.

Balancing the factors contextually, the court set aside the dismissal order and allowed the action to proceed under a new timetable.