Setting aside an administrative dismissal

Aguas v. Rivard Estate, 2011 ONCA 494 deals with setting aside an administrative dismissal under Rule 48.14.  The test requires four matters to be considered (1) and explanation for the delay (2) intention to continue with the litigation (3) was the motion to set aside brought promptly and (4) was there prejudice to the defendant.  The Court writes:

[13]         The motion judge relied on this court`s decisions in Marché and Wellwood.  Those decisions make the important points that the rules, including Rule 48.14, are intended to promote the timely resolution of disputes and finality.  Those principles are given effect in the context of a motion to set aside an administrative dismissal under Rule 48.14 by reference to the Reid factors.  At paragraph 32 of Marché, Sharpe J.A. also pointed to the risk that countenancing negligence and incompetence of solicitors will undermine public confidence in the administration of justice.  Sharpe J.A. also emphasized the importance of finality in that case, at para. 38:

When an action has been disposed of in favour of a party, that party's entitlement to rely on the finality principle grows stronger as the years pass. Even when the order dismissing the action was made for delay or default and not on the merits, and even when the party relying on the order could still defend itself despite the delay, it seems to me that at some point the interest in finality must trump the opposite party's plea for an indulgence. This is especially true where, as in the present case, the opposite party appears to have another remedy available.

[14]         In Wellwood, this court also emphasized the importance of finality.  In that case, Cronk J.A. also wrote at length about the prejudice factor and especially about presumed prejudiced where the administrative dismissal is made after expiry of the limitation period. 

[15]         However, Marché and Wellwood have important distinguishing features. In Marché, an important factor in finding that the explanation for the delay was not satisfactory and that the deadlines were not missed due to inadvertence was that the solicitor effectively abandoned the file (para. 27).  And in Wellwood, Cronk J.A. noted at paragraph 74 that on the findings of the Master in that case, the delay occasioned by the plaintiff was intentional.  She found as follows at para. 79:

Further, on the facts of this case, it is my view that invocation of the finality principle, in the context of full consideration of the other factors relevant to the decision whether to set aside the dismissal orders, was dispositive of the central issue before the master. In particular, I note that the respondent failed to comply with the mandatory requirements of rule 37.14(1); that he failed to provide a satisfactory explanation for his delay in moving to set aside the dismissal orders; and that even when he determined to seek such relief, his motion for relief was not brought promptly. In these circumstances, I conclude that this is the type of case described by Sharpe J.A. in Marché, in which finality must trump.