Barrister and Solicitor
Legal Writing and Research
Civil Procedure - Dismissal for Delay
Chrisjohn v. Riley (Ont CA, 2015)
In this case the Court of Appeal discussed the principles applicable to setting aside a trial court clerk's dismissal for delay:
 The decision of a master or judge refusing to set aside an administrative dismissal is entitled to deference and may be set aside only if made on an erroneous legal principle or infected by a palpable and overriding error of fact: 1196158 Ontario Inc. v. 6274013 Canada Ltd., 2012 ONCA 544 (CanLII), 112 O.R. (3d) 67, at para. 16. The appellants assert that there were such errors in this case.
 In Finlay v. Van Paassen, 2010 ONCA 204 (CanLII), 101 O.R. (3d) 390, Laskin J.A. noted, at para. 33, that on a motion to set aside a dismissal order, the court should be concerned primarily with the rights of the litigants, not with the conduct of their counsel. In Marché, at para. 28, Sharpe J.A. observed: “The law will not ordinarily allow an innocent client to suffer the irrevocable loss of the right to proceed by reason of the inadvertence of his or her solicitor.” Sharpe J.A. went on to recognize that the situation may be different where the lawyer’s conduct is not inadvertent but deliberate.
 As this court noted in Hamilton (City) v. Svedas Koyanagi Architects Inc., 2010 ONCA 887 (CanLII), 104 O.R. (3d) 689, at para. 33, on a motion to set aside a dismissal for delay, the question of prejudice is invariably a key, if not the key consideration. The relevant prejudice is to the defendant’s ability to defend the action that would arise from steps taken following dismissal or which would result from the restoration of the action: MDM Plastics Ltd. v. Vincor International Inc., 2015 ONCA 28 (CanLII), 124 O.R. (3d) 420, at para. 25; see also 806480 Ontario Ltd. v. RNG Equipment Inc., 2014 ONCA 488 (CanLII),  O.J. No. 2979, at para. 4.
 The onus was not on the respondent to demonstrate “significant and actual” prejudice, as asserted by the appellants (although there was evidence of such prejudice on the record), but on the appellants to rebut the inference of prejudice, that is, prejudice to the respondent’s ability to defend the action. The motion judge correctly concluded that the onus was not met in the present case, and that actual prejudice relevant to the ability to defend the action on damages and liability had been established.