Setting aside a registrar's order dismissing an action for delay

Hamilton (City) v. Svedas Koyanagi Architects Inc., 2010 ONCA 887 is yet another case dealing with setting aside a registrar's order dismissing an action for delay. The case sets out the principles well:

[19]          Judges' decisions on whether to set aside a registrar's order dismissing an action for delay are discretionary.  The general principles and specific considerations that structure the exercise of this discretion are well established:  see Scaini v. Prochnicki (2007), 85 O.R. (3d) 179 (C.A.); Marché d'Alimentation Denis Thériault Ltée v. Giant Tiger Stores Ltd. (2007), 87 O.R. (3d) 660 (C.A.); Finlay v. Van Paassen (2010), 266 O.A.C. 239 (C.A.).

[20]          Two principles of our civil justice system and our Rules of Civil Procedure come into play.  The first, reflected in rule 1.04(1), is that civil actions should be decided on their merits.  As the motion judge said at para. 31 of his reasons:  "the court's bias is in favour of deciding matters on their merits rather than terminating rights on procedural grounds." 

[21]          The second principle, reflected in the various time limits mandated by our rules, and indeed, as noted by the motion judge, in the provision for a status notice and hearing, is that civil actions should be resolved within a reasonable timeframe.  In Marché, at para. 25, my colleague Sharpe J.A. wrote about the strong public interest in promoting the timely resolution of disputes.  Both the litigants and the public have an interest in timely justice.  Their confidence in the administration of our civil justice system depends on it. 

[22]          On motions to set aside an order dismissing an action for delay, invariably there is tension between these two principles.  In seeking to give effect to these principles, motion judges must take account of and weigh a list of considerations.  These considerations typically include:

·                    The length of the delay;

·                    Whether the plaintiff has adequately explained the delay;

·                    Whether the delay has prejudiced the defendants;

·                    Whether the dismissal order resulted from a lawyer's inadvertence; and

·                    Whether, after becoming aware of the dismissal order, the plaintiff moved reasonably promptly to set it aside.

[23]          This list is not exhaustive.  Moreover, which considerations are relevant and how much weight should be assigned to each will vary from case to case.  The court's overriding objective is to achieve a just result – a result that balances the interest of the parties and takes account of the public's interest in the timely resolution of disputes.
James Morton
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