Court Denies Plaintiffs’ Motion to Set Aside Dismissal

In a decision released last week, Master Dash denied a motion by plaintiffs to restore their action after it was dismissed for delay by the court Registrar.   The case arose out of alleged medical malpractice and Master Dash acknowledged that the plaintiff had “suffered very serious injuries.”

Master Dash cited the following 4 factors that must be considered and weighed together with any other relevant factors:

  1. Explanation for the litigation delay that prompted the dismissal order.
  2. Inadvertence in missing the deadline, despite the plaintiffs’ best intention to set the matter down or request a status hearing.
  3. The motion to set aside the dismissal is brought promptly.
  4. No prejudice to the defendant.

Master Dash had the following comments with respect to each of the above factors:

Explanation for Delay The delay was not inordinate, in the context of a medical malpractice action.

Inadvertence: The plaintiffs led no evidence that they missed the deadline as a result of inadvertence.  To the contrary, “the plaintiffs’ solicitors completely ignored the deadline for setting the action down because they were not ready to set it down.”

Motion Brought Promptly: The plaintiffs moved promptly to set aside the dismissal order once it came to their attention.

Prejudice: Neither party provided affidavit evidence on the issue of prejudice.  When the defendants cross-examined the plaintiff’s lawyer on her affidavit, the lawyer refused to answer a question regarding the primary plaintiff’s ability to be examined for discovery.  Master Dash inferred from this refusal that the plaintiff was not physically able to be examined.  As a result the defendants would suffer prejudice, since they could not discover the plaintiff on issues of liability or damages.

Master Dash concluded that the plaintiffs took lightly the court-ordered deadline to set the action down for trial and failed to provide sufficient evidence to permit him to set aside the order.

It is not known whether the plaintiffs intend to appeal this decision.

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