Respondents did not proceed as if they were acting on principle of finality

WANT OF PROSECUTION

Respondents did not proceed as if they were acting on principle of finality

This was appeal from motion judge’s dismissal of motion to set aside registrar’s administrative dismissal order. Motor vehicle accident occurred on October 5, 2001. Appellant alleged that tractor trailer driven by respondent swerved into her lane on highway. Appellant was involved in second motor vehicle accident in March 2005 and commenced separate action. In August 2007 registrar made administrative dismissal of action. Status notice and order dismissing action were sent to appellant’s former counsel. On application to set aside dismissal order motion judge found delay was not adequately explained, prejudice could be inferred and presumed and respondents were entitled to rely on finality of registrar’s order. Appeal allowed. It was palpable and overriding error to say that appellant did not give any reason for slow progress of matter up to date of status hearing notice. Respondents’ counsel continued to attend discoveries in second accident and did not raise any indication that something was wrong so it was hard to see what prejudice respondents were suffering. Respondents did not proceed as if they were acting on principle of finality, as they continued to participate in litigation. Registrar’s order should have been set aside.

Aguas v. Rivard Estate (July 5, 2011, Ont. C.A., Rosenberg, Feldman and Juriansz JJ.A., File No. C52438) 203 A.C.W.S. (3d) 741 (25 pp.).