[27] I note that there were two lawyers, from the same firm, who addressed the plaintiff’s claims. I have referred to them, collectively, as plaintiff’s counsel. Both advanced the plaintiff’s claims and both erred in failing to set the action down in a timely fashion. But, in all and in my view, the advancement of the plaintiff’s claims here eclipses the errors made. Why do I say this?
[28] The plaintiff has explained the litigation delay and the failure to set the action down for trial (the first two Reid factors), as required. The trial record was served and, even after the trial record was served, positive steps were taken to move this action forward. Until late November/10, I cannot say that this action languished. And while the explanation proffered for the delay from late 2010 until 2013 (when a motion date was obtained) has a few flaws (I accept that the action may have “fallen out of [counsel’s] tickler system” as suggested, but why was there a delay in responding to defendant’s counsel’s letters?), the plaintiff’s delays until October 29/10 are few. There were a few bumps in the road (such as the rescheduling of the plaintiff’s examination for discovery and the cancellation of mediation) but litigation is seldom conducted without any bumps, including some reasonable delays. Further, and in any event, there is no evidence before me to suggest that a deliberate decision was made by plaintiff’s counsel or by the plaintiff to fail to advance the litigation towards trial (and, indeed, the steps taken throughout negate that notion).
[29] I acknowledge, however, that the motion was not brought promptly (as was argued). In respect of the third of the Reid factors, plaintiff’s counsel fails. I understand counsel’s confusion about the trial record but it only takes counsel so far. Even if it was thought that the dismissal Order was made in error, the dismissal Order ought to have been addressed before it was. Two years passed and reminders were sent by counsel for the defendant, to little avail. Noteworthy, though, is the fact that defendant’s counsel did not choose to speak with plaintiff’s counsel by phone. While I am not faulting defendant’s counsel, I do find it curious that, in a file that had progressed as much as this one had and in respect of which a trial record had been served (if not filed), the parties resorted to the exchange of letters, only.