[27] The failure of Plaintiffs’ counsel to proceed with this matter in a timely way is of great concern to the Court. If the test for granting the relief that the Plaintiff is seeking in this case was whether their counsel had moved promptly to take the appropriate and necessary steps, I would have no hesitation in dismissing these motions. Although these concerns are not relevant to my disposition of this motion, I have detailed them because it was clear to me that the lawyers involved did not believe that there was any issue with the way that they had handled the claim.
[28] The failures of Plaintiff’s counsel are not, however, the test to be applied. The tests to be applied relate to the prejudice that would be suffered by the Defendants. In addition, the Court must ensure that meritorious disputes are resolved on their merits, rather than on preliminary motions or preliminary issues. (See Mader v. Hunter (2004 CanLII 17834 (ON CA), 2004 Can LII 17834, 183 O.A.C. 294 (C.A.)). As a result, the fact that it is clear that it is the Plaintiff’s lawyers who have been dilatory in pursuing this claim is actually a factor that assists the Plaintiff, as he should not be held responsible for the conduct of his counsel. I now turn to the merits of the two motions.