Legal Blog

Off the Record: Court of Appeal Sets Aside Order Dismissing Action

Cunningham v. Hutchings 2018 Ont CA

Lawyers for the plaintiff got off the record. The order did not have the usual text set out in Rule 15.04 (8) & (9) warning the plaintiff that she had to appoint a new lawyer or indicate she would be acting in person. The plaintiff did not appear at the motion, possibly because she was not properly served. The motions judge dismissed her action. The plaintiff then moved to set aside the order, but the second motions judge concluded that he had no authority to do so. The Court of Appeal reversed. First, it held that the second motions judge did have authority. Second, it held that the deficiency in the order by which the lawyers got off the record and the lack of reasons given by the first motions judge in dismissing the action were sufficient to set aside his order.

Written by Jonathan Speigel, the founding partner of Speigel Nichols Fox LLP, leads the litigation and construction practices.