Judge must adopt overall contextual approach on motion to set aside dismissal for delay

WANT OF PROSECUTION

Judge must adopt overall contextual approach on motion to set aside dismissal for delay

Fuller sued CPI, supplier of patent management systems, for negligence and breach of contract, alleging CPI failed to monitor dates when patent maintenance fees became payable. Fuller alleged CPI negligently relied on incorrect representations of R, Toronto-based patent lawyer against whom Fuller also brought claim. Fuller granted R extensions to file statement of defence, but did not require CPI to file defence, instead focusing attention on claim against R. R died and CPI filed its statement of defence five days later. Fuller failed to set action down within required time-limit. Registrar’s status notice not received by solicitors for Fuller because registrar sent notice to wrong address. Subsequent order dismissing action also sent to wrong address. Upon becoming aware of dismissal, counsel for Fuller took position that registrar had no jurisdiction to dismiss because status notice not served in accordance with rules. However, failure to properly serve status notice is mere irregularity. Counsel for Fuller continued settlement discussions with R’s insurer, ultimately bringing application to set aside dismissal about three months after becoming aware of dismissal order. Motion judge dismissed motion. Fuller’s appeal allowed and action reinstated. Judge must adopt overall contextual approach when considering relevant factors. Two-part test requiring plaintiff to provide acceptable explanation for delay and show that defendant would suffer no non-compensable prejudice if action proceeded may be adopted. Defendant’s conduct in litigation also relevant. Weight of authority favours deciding matters on merits, particularly where delay results from error by counsel. Motion judge placed little weight on fact that status notice not properly served and that Fuller moved to set aside order reasonably quickly. Delay due in large part to counsel’s mistaken view that registrar lacked jurisdiction. Motion judge also failed to consider that Fuller lost opportunity to prevent action being dismissed by delay because status notice went to wrong address. In considering prejudice, motion judge erred in failing to consider CPI’s passivity and failed to link question of prejudice to whether fair trial still possible. CPI did not plead non-compensable prejudice and nothing occurred between issuance of status notice and motion to set aside dismissal order that increased prejudice to CPI. Fair trial was still possible.
H.B. Fuller Co. v. Rogers (Mar. 16, 2015, Ont. C.A., K.M. Weiler J.A., Gloria Epstein J.A., and David Brown J.A., File No. CA C59444) Decision at 244 A.C.W.S. (3d) 556 was reversed.  250 A.C.W.S. (3d) 591.