Oct 26, 2017
On motion where Hughes Amys' Caroline Mowat was defence counsel, Ont. Master sets aside administrative dismissal but suspends pre-judgment interest for approximately 33 months
Author Michael S. Teitelbaum
Related Lawyer Caroline Mowat
In Aube v. Quinnell
, Ontario Master Muir set aside the Registrar's order dismissing this February 2011 mva action for delay.
However, Hughes Amys' Caroline Mowat, who acted for the defendants, was able to secure an order suspending pre-judgment interest from January 6, 2015 to September 22, 2017, and requiring the plaintiff to pay the outstanding defence medical cancellation fee in the amount of $847.50 by October 25, 2017. Great work, Caroline!
The dismissal order was made by the Registrar on January 6, 2015. It appears the plaintiff’s lawyer received a copy of it on January 14, 2015. He did not advise the plaintiff of the dismissal of her action. It does appear that he contacted the lawyer for the defendants soon after receiving the order. On February 25, 2015, the defendants’ lawyer confirmed that she had received instructions not to oppose any motion to set aside the dismissal order. It was not until the plaintiff’s current lawyers were retained in late 2016 that any steps were taken to bring the necessary motion to set aside the dismissal order. Ultimately, the notice of motion was served in April 2017 with an initial return date of June 12, 2017. It was further adjourned at the Master's initiative and ultimately heard on September 22, 2017.
The Master's Analysis reads:
 I do not view the delay in the progress of this action as particularly long or inordinate. The claim is nearly six years old. However, it is important to note that the accident giving rise to the claim took place in February 2011, just over six years ago. The statement of claim was issued soon after the accident took place.
 Much has been done to move this action forward. The plaintiff has made significant production to date. Examinations for discovery have taken place. Transcripts are available. The plaintiff has attended one defence medical assessment and is available and willing to attend a second, if necessary. Counsel for the plaintiff has followed up in an effort to obtain further production and schedule a mediation session. The action is ready to be set down subject to mediation taking place.
 It is true that the progress of this action has not been perfect. Some requested production remains outstanding. The failure of the plaintiff to attend the January 2015 defence medical appointment and pay the resulting cancelation fee is troubling. The long delay by the plaintiff’s former lawyer in bringing the motion to set aside the dismissal order is less than satisfactory. However, as I have stated in several other decisions, the explanation for the delay need not be perfect. It simply need to be adequate. There have been a few gaps in the progress of the action but nothing that I view as extraordinary or rising to a level that would justify denying the plaintiff a right to a determination of her claim on the merits. This is not a situation where a claim has been ignored and forgotten for lengthy periods of time. Steady and regular progress was made to move the action toward the point where it can be set down for trial. Finally, the plaintiff has given evidence that she was in regular contact with both of her former lawyers in order to ensure her action was proceeding in the appropriate fashion. It is her evidence that she always intended to pursue this claim.
 I am therefore satisfied that the plaintiff has met this element of the test.
 I am also satisfied that the set down deadline was missed due to inadvertence. The unchallenged evidence of the plaintiff’s former lawyer is that he failed to diarize the set down deadline. He took immediate steps to contact the defendants’ lawyer as soon as he received the dismissal order and stated his intention to seek an order setting aside the dismissal. He obtained the defendants’ agreement to not oppose an order to set aside the dismissal. Moreover, at the same time, he was taking other steps to move this action forward, such a communicating with the defendants’ lawyer in respect of the cancelled defence medical examination and further medical related productions. The plaintiff attended a defence medical examination just two weeks before the missed set down deadline. In my view, the failure to set the action down for trial in a timely manner must have been inadvertent. No other explanation makes sense in the circumstances of this action.
 In my view, this motion has not been brought promptly. I appreciate that the plaintiff herself was unaware of the dismissal order. However, her lawyer was aware of it from the outset. I do not accept the explanation provided by the plaintiff’s former lawyer as being adequate in the circumstances. If a lawyer is unable to handle all of the files for which he has been retained, he has an obligation as a legal professional to find another lawyer to take on the files he cannot handle or at least advise his client of the status of her claim and recommend other legal representation. A lawyer also has a duty to adequately staff his or her office. A dismissal order is a serious matter. It requires immediate attention even if a defendant has indicated that it will not oppose such a motion. Surely any such position taken by a defendant is implicitly conditional on the motion being brought within a reasonable period to time. Twenty-seven months to bring a motion to set aside a dismissal order cannot be described as prompt in any circumstances.
 I am satisfied that the plaintiff has rebutted any presumption of prejudice. In my view, the presumption of prejudice is not particularly strong in this case. I have found that there has been no inordinate delay. Much has taken place in connection with this action. It is mostly ready to be set down. Production has been made for the most part and discovery has taken place. Witnesses are available. The plaintiff has been examined by a defence medical expert and is willing to be examined again. The defendants have been aware of this claim from the beginning and represented by counsel throughout. The defendants have not provided any evidence of actual prejudice.
 The defendants do take issue with the plaintiff’s failure to respond to all of the defendants’ requests for additional post-discovery production. It does appear that the plaintiff’s production may not be 100% complete. However, in my view it is not necessary for a plaintiff to demonstrate that every conceivable document requested by a defendant has been produced in order to rebut the presumption of prejudice, especially when that presumption is not very strong. The plaintiff has made very substantial production to date.
 I am therefore satisfied that the plaintiff has met her burden in terms of prejudice. In my view, the defendants will not be prejudiced in defending themselves at trial.
 When deciding a motion to set aside an administrative dismissal order, the court must adopt a contextual approach in which it weighs all relevant considerations to determine the result that is just in the circumstances. The court must, of course, balance the strong public and private interest in promoting the timely resolution of disputes with the entitlement of a plaintiff to have her claim decided on the merits. However, the preference in our system of civil justice is for the determination of disputes on their merits.
 The plaintiff has satisfied three of the four relevant factors, including the key consideration of prejudice. The plaintiff’s unchallenged evidence is that she always intended to pursue this claim. For the most part, the courts should focus on the rights of the parties rather than the conduct of counsel.
 I have therefore concluded that it is just in the circumstances of this action that the dismissal order be set aside. However, as a term of my order I am suspending pre-judgment interest from January 6, 2015 to September 22, 2017. The plaintiff shall also pay the outstanding defence medical cancellation fee in the amount of $847.50 by October 25, 2017.