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The June 17 decision, Hengeveld v. The Personal Insurance Company, 2019 ONCA 497, focused when negligence of a plaintiff’s lawyer is the plaintiff’s responsibility, wrote Justice Benjamin Zarnett, with Justices Alexandra Hoy and Peter Lauwers concurring.
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[1] The plaintiff Joseph Langemann claims damages arising from personal injuries sustained in a motor vehicle accident that occurred on February 1, 2012. He alleges that he was injured when the Dodge Caravan vehicle that he was driving was involved in a collision with a farm tractor owned by the defendant Daniel Mooney and operated by the defendant Shane St. Pierre.
[2] The statement of claim was issued on January 17, 2014 by the plaintiff’s former counsel. The action was dismissed for delay by the registrar on February 13, 2019, and the plaintiff, represented by different counsel since September, 2017, now moves to set aside that dismissal order. The chronology of events in the action between the issuing of the statement of claim and the dismissal is set out below. The motion is opposed by the defendants St. Pierre and Mooney.
[6] The factors to be considered on this motion were reviewed by the Court of Appeal in Habib v. Mucaj, [2012] O.J. 9546 (C.A.), at paragraphs 5-7:
5 There are four well established factors to consider when deciding to set aside an order to dismiss an action: (i) explanation of the litigation delay – a deliberate decision not to advance the litigation will usually be fatal; (ii) inadvertence in missing the deadline – the intention always was to set the action down within the time limit; (iii) the motion is brought promptly – as soon as possible after the order came to the party’s attention; and (iv) no prejudice to the defendant – the prejudice must be significant and arise out of the delay: Reid v. Dow Corning Corp. (2001), 11 C.P.C. (5th) 80 (Ont. Div. Crt.).
6 No one factor is necessarily decisive of the issue. Rather, a “contextual” approach is required where the court weighs all relevant considerations to determine the result that is just. Here, the Master specifically referenced the proper test and engaged in the weighing exercise. He found that, after the weighing exercise, the just result was to set aside the dismissal order. The Master’s order was discretionary and was made as part of his duty to manage the trial list. The decision, therefore, attracts significant deference from a reviewing court: Finlay v. Van Paassen, 2010 ONCA 204 (CanLII).
7 Furthermore, 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. However, where the lawyer’s conduct is not inadvertent but deliberate, this may be different: Marché d’Alimentation Denis Thériault Ltée. v. Giant Tiger Stores Ltd. (2007), 2007 ONCA 695 (CanLII), 87 O.R. (3d) 660 (O.C.A.), at para. 28. . . . .