When civil litigation files go stale, the plaintiff runs the risk that their claim will be administratively dismissed by the court Registrar if the action is not set down for trial within five (5) years. Its always a risky situation for a plaintiff, as was evident in this case where the judge refused to restore the dismissed claim.
This case outlines what a Plaintiff must do in order to convince the court to restore the action. The Plaintiff:
(1) must try to provide an explanation for the delay;
(2) must try to establish that the oversight was inadvertent and not deliberate;
(3) must try to bring a motion to set aside the Registrar’s dismissal order promptly;
(4) must try to satisfy the court that there is no overt prejudice to the defendant(s) in allowing the claim to proceed.
The Court reminds us that not all of the above criteria need to be established, and in addition, no one factor is decisive. Indeed, the court can consider other factors as well, if relevant. The presiding judge is to consider the matter contextually, balancing all the relevant factors with a view to finding the just result that considers both the hope that matters will be decided on their merits and the need for litigation to be prosecuted in a timely fashion.
In the case for the judge in this instance, the judge concluded that the Plaintiff was not able to satisfy any of the four criteria above. As such, there was no real “balancing” required to come to the conclusion that the Registrar’s dismissal order would remain in effect.
Estate of James Freure et al v. Terracon Underground Ltd. et al, 2022 ONSC 1591
https://www.canlii.org/en/on/onsc/doc/2022/2022onsc1591/2022onsc1591.html