The action arises out of a motor vehicle accident that occurred October 2003. The statement of claim was issued October 2004. Examinations for discovery were completed by September 2005.
In January 2007, the registrar issued a status notice indicating that the action would be dismissed unless it was set down for trial within 90 days. In error, the status notice was not sent to the plaintiff or his counsel.
On April 30, 2007, the registrar issued an order dismissing the action for delay. Plaintiff’s counsel first obtained a copy of the registrar’s order in mid-May 2007 but did not take any action to set aside the order until 2009.
The motion’s judge refused to set aside the dismissal order, relying on the four factors articulated by the Court of Appeal in Giant Tiger Stores:2
- Explanation of the litigation delay;
- Inadvertence in missing the deadline;
- The motion is brought promptly; and
- No prejudice to the defendant.
For the motion’s judge, the third factor was decisive. He held that a delay of two years to bring a motion was unacceptable in the circumstances.
The Court of Appeal held that an appellant must not satisfy each of the above criteria before an order is set aside. Rather, the court should use a contextual approach and weigh all relevant considerations to determine a just result. In this case, the Court of Appeal held that the motion’s judge “did not engage in this weighing exercise” and most importantly, did not consider the absence of prejudice to the respondents.
The Court of Appeal acknowledged the deference it owed to the motion’s judge. It then allowed the appeal, set aside the orders of the motion’s judge and the registrar, and re-instated the action.