After Mediation the Defence lawyer took out a final Dismissal Order without the authorization of Plaintiff’s counsel and before settlement funds were received. All attempts to contact the Defence lawyer to demand an explanation were ignored. The Plaintiff’s only remedy was to bring a motion to set aside the Order. Funds were received on the same day the Motion Record was filed and the matter proceeded on Costs alone. The Plaintiff was awarded $2400.00 in Costs on a Partial Indemnity scale.
Of note are the comments of Justice Lisa Sheard regarding the failure of the Defence lawyer to respond. The Defence argued at the motion, inter alia, that the remedy should be a complaint to the LSO and not a motion. That remedy does not assist the Plaintiff to get funds.
“It should go without saying that lawyers ought to respond to emails and letters from opposing counsel. In this case, given the nature of the concerns expressed by Ms. Sullivan, it was incumbent upon Mr. Dickson to respond quickly.”
The lesson to be learned is that it is incumbent on Plaintiff’s counsel to ensure that the Action is not dismissed until funds are received and, equally, that Defence Counsel must wait. In the absence of Minutes of Settlement addressing the matter directly one can no longer assume that procedural necessity will be followed.
