The decision in Toronto-Dominion Bank v. Entretel Incorporated, 2008 CanLII 8598 (ON S.C.) is useful in setting out the general prohibition on a party in default for moving for any relief until the default is set aside. The case also has useful language regarding the need to bring motions promptly and in an orderly fashion.
The Court writes:
[11] The plaintiff's conduct of this action has been both careless and ill-conceived and at the same time high-handed and presumptuous. The action having been dismissed, and until the dismissal is set aside, the plaintiff has no entitlement to seek interlocutory relief other than an order setting aside the dismissal. It is not a foregone conclusion that an order setting aside the registrar's order of dismissal will be granted. The registrar's dismissal has the same effect as a dismissal for delay and the criteria for setting aside the order are the same. In the instant case, the actual delay in bringing on the motion to set aside the registrar's order was six months, all of it attributable to the plaintiff's mismanagement. In my view, such a delay bordered on the inordinate, but as indicated above, I am allowing the motion. Where an action has been dismissed as abandoned or for want of prosecution, the defaulting plaintiff may not presume that the order reinstating will not carry with it terms as a condition of being permitted to move the case forward.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
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