Dhawan v Wehbe, 2015 ONSC 6104 (CanLII)

Released October 15, 2015 | CanLII

This motion concerns a plaintiff’s efforts to set aside an administrative dismissal order dated November 26, 2014 to permit reinstatement of the proceeding and to extend time to set the action down for trial.

The action was commenced in 2008 and at the time of the motion, the plaintiff’s counsel missed deadlines to set it down. The defendant consented to extend time three times and there had been two administrative orders dismissing the action.

The decision states many principles with respect to motions to set aside administrative orders dismissing proceedings.  First, the Court will consider these four factors:

  1. Explanation of the litigation delay;
  2. Inadvertence in missing the deadline;
  3. Promptness of a motion to set aside the dismissal order; and
  4. Prejudice to the defendant since commencement of the proceeding or since the dismissal.

The following principles were outlined:

  • Of the four factors, prejudice to the defendant is paramount: Marché D’Alimentation Denis Thériault Ltée v. Giant Tiger Stores Ltd., 2007 ONCA 695 (CanLII) (“Giant Tiger“), and Scaini v. Prochnicki, 2007 ONCA 63 (CanLII) (“Scaini“);
  • The Plaintiff is not required to satisfy each factor. A contextual approach is required: Scaini;
  • In weighing the factors, the primary focus should be on the rights of the litigants, not on the conduct of their counsel: Finlay v. Van Paassen, 2010 ONCA 204 (CanLII), and Giant Tiger;
  • The plaintiff has primary responsibility to ensure the progress of the proceeding: Wellwood v. Ontario (Provincial Police),2010 ONCA 386 (CanLII) (“Wellwood“);
  • The court may set aside an order by a registrar on such terms as are just pursuant to Rule 37.14 (1) and (2) of the Rules of Civil Procedure;
  • The plaintiff must adequately explain the delay in the proceeding from its commencement to its dismissal, not just since the dismissal order was argued: Giant Tiger;
  • The court should not normally speculate as to the rights of action the plaintiff may have against her solicitor, absent deliberate conduct of plaintiff’s counsel: Finlay, and Giant Tiger;
  • Prejudice to the defendant may be presumed, particularly in the case of a lengthy time period after the dismissal order for a limitation period has expired: Wellwood;
  • The plaintiff has the onus to demonstrate that the defendant has not suffered significant prejudice a result of the plaintiff’s delay, or as a result of steps taken following the dismissal of the action in which case the plaintiff must have evidence to rebut the presumption of prejudice;
  • Prejudice to the defendant is not limited to prejudice after the administrative order dismissing the proceeding: Giant Tiger;
  • Prejudice to the defendant occurs when the action is revived after it being dismissed for the plaintiff’s delay, or as a result of steps taken following dismissal of the proceeding: Giant Tiger;
  • If the plaintiff rebuts the presumption of prejudice, the defendant will then have the onus to establish actual prejudice: Wellwood.

 

NOTE: Rule 48.14 was significantly changed on January 1, 2015.

 

Read the full decision on CanLII

Michael Ettedgui
Written by

Michael practices exclusively in the field of personal injury law at Campisi LLP.

Michael was called to the Bar in 2014. He received his law degree from Osgoode Hall Law School, where he participated in various programs geared towards access to justice and practical legal education. In particular, Michael volunteered with unrepresented litigants at family court and was the student co-ordinator of Osgoode Hall's Pro Bono Students Canada chapter.

When he is not working, Michael enjoys spending time with his wife and three young children.