Legal Blog

Registrar’s Dismissal for Delay

Grillo Barristers P.C. v. Kagan Law Firm P.C. 2021 Ont SCJ

The associate judge had allowed a motion setting aside a registrar’s dismissal under Rule 48.14 for a five year delay. The motion judge, to whom the appeal was taken, savaged the decision of the associate judge, reviewed the Reid factors, and concluded that although the plaintiff explained the delay for some periods of the five years, many other periods were not. As to the final Reid factor, prejudice, the judge noted that it was not an error for the associate judge to consider the defendant’s conduct, but it was an error to place the burden on the defendant to complain of the delay, to warn of the impending dismissal, or to move the action to trial. A defendant does not have a burden to do so and the primary responsibility for the progress of an action lies with the plaintiff. The action remained dismissed.

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