[6] The statement of claim was issued on June 27, 2008 and served shortly thereafter. The action proceeded through the pleadings stage. Affidavits of documents were exchanged. Examinations for discovery for both sides were conducted on April 29, 2009. The plaintiff underwent a defence independent medical examination by an orthopedic surgeon on May 25, 2010. The action proceeded to an unsuccessful mediation on September 30, 2010.
[7] This motion is supported by an affidavit from one of the plaintiff’s lawyers whom I will call lawyer D.C.. This affidavit is 83 paragraphs long and has 71 exhibits. The affidavit describes in great detail the history of the action and the correspondence which the plaintiff’s lawyers sent and received in the course of this action. Much of this correspondence deals with efforts which the plaintiff’s lawyers made to collect information and documents in support of the plaintiff’s claim.
[8] Lawyer D.C. says that after the mediation failed he intended to set this action down for trial but that owing to inadvertence, he failed to diarise a deadline for doing so as was his standard diarizing practice at the time. The action was never set down for trial.
[9] On September 20, 2010 the court registry issued a status notice in this action. Lawyer D.C. says that neither her nor his form received a copy of this status notice and therefore were unaware of any pending dismissal of this action. This is disputed.
[23] Lawyer D.C. failed to set this action down for trial. He offers several explanations for this failure. First, he says that he failed to diarise a deadline for setting this action down for trial. Secondly, he says that between 2009 and 2012 he had a case load of from 250 to 300 files in addition to numerous other responsibilities at his firm. It took him some time to realize that this file load and his other firm responsibilities were completely unsustainable. He eventually requested and got permission to reduce his file load and transfer files to other lawyers. He does not say just when this happened. He does say that between January 2011 and September 2013, he overlooked prosecution of this action in favour of other priority issues. Finally, lawyer D.C. says that he always intended to proceed with the plaintiff’s claim.
[24] The plaintiff himself has sworn an affidavit in support of this motion. He states that it has always been his intention to proceed with this action. He also says that he was in contact with the office of lawyer D.C. from time to time and understood that his action was proceeding in the normal course. Finally, he says that he has instructed his lawyers to proceed with a motion to set aside the registrar’s dismissal order.
[25] To repeat myself, I am satisfied that his action was satisfactorily prosecuted until just after the failed mediation of September 30, 2010. There is no evidence that lawyer D.C. or anyone at his firm ever made a conscious and deliberate decision not to prosecute this action. There is no evidence that the plaintiff ever instructed his lawyers not to prosecute this action.
[26] Lawyer D.C. has explained the delay in the prosecution of this action in the limited sense that I now know why this delay occurred. However the overall delay is so great that the explanation is not fully satisfactory. I therefore conclude that the plaintiff has not fully met the first Reid criterion.
Balancing Exercise
[52] Finally I must balance the interests of the parties. If this motion is dismissed and the allegations in the statement of claim are true the plaintiff will suffer prejudice. Because the registrar dismissed this action with costs, if this motion is dismissed the plaintiff must pay those costs to the defendant. Since this action is almost ready to be set down for trial those costs would be substantial. In some cases where the court has dismissed a motion like the present one, the court has said that the plaintiff will not be without a remedy because the plaintiff can sue her or his negligent lawyer. In other cases the courts have cautioned against speculating as to whether the plaintiff has such a remedy. At the very least, if the plaintiff’s motion is dismissed and he is left to start a new action, the day he receives compensation will be delayed for several years.
[53] I must also consider whether the defendant will be prejudiced if this motion is granted. In that event, I am of the view that the defendant will not be prejudiced because on the evidence before me he can still present his case at trial.
Conclusion
[54] This motion is therefore granted. The registrar’s dismissal order of January 6, 2011 is set aside. The time for the plaintiff to set this action down for trial is extended to 90 days from the final disposition of this motion. This may seem like a very generous time extension. However, my experience in other motions has been that even diligent lawyer experience considerable delays in getting formal orders issued and entered by court staff.