Civil procedure – Dismissal order – Test to
The appellant commenced an action on October 6, 2003, against
Curtis Rivard following a motor vehicle accident. On August 15,
2007, the Registrar dismissed the action because the appellant had
neither set the matter down for trial within two years of the
filing of the statement of defence nor obtained an order from a
judge presiding at a status hearing in accordance with Rule 48.14.
The order dismissing the action was mistakenly sent to the
appellant's former counsel, but not to current counsel. Counsel
for the appellant did not discover that the action had been
dismissed until September 2009. On October 7, 2009, the appellants
filed a notice of motion to set aside the dismissal.
This decision is an appeal from the order of Seppi J. dismissing
the appellant's motion to set aside the dismissal order.
The majority of the Court of Appeal allowed the appeal, holding
that while the motion judge identified and applied the proper test,
she made three palpable and overriding errors.
First, the court held that the motion judge made an error in
finding that there was no explanation for the litigation delay. In
the court's opinion, although the action was not proceeding
with "lightning speed", steps were being taken.
Additionally, the litigation was complicated and directly affected
by a second accident in which the appellant was involved, which led
to a second action commenced by the appellant. In the court's
decision, it was an error to say that the appellant did not give
"any reason whatsoever" for the litigation delay.
Moreover, once counsel for the appellant discovered the dismissal,
she moved almost immediately to set it aside.
Second, the court held that the motion judge made an error in
finding that prejudice to the respondents favoured dismissing the
motion. The court found that the motion judge placed unreasonable
emphasis on prejudice, and concluded that there was no prejudice
suffered by the respondents.
Third, the court held that the motion judge erred in holding
that the respondents were entitled to rely on the principle of
finality. It held that the respondents did not proceed as if they
were acting on the principle of finality, and continued to
participate in the litigation, most obviously by attending the
discoveries in the second accident.
Upon considering the facts of the case in context, the Court of
Appeal determined that the dismissal order should have been set
Juriansz J.A. dissented from the majority's opinion. He
stated that the motion judge's decision to uphold the dismissal
order involved an exercise of discretion, which should be given
"significant deference from this court". An appellate
court reviews a decision, not with the aim of replacing it with the
decision it would have made itself, but with a view to determining
whether the motion judge erred in arriving at his/her decision. He
stated: "Interfering with her considered exercise of
discretion will have the effect of rendering the jurisprudence of
this court so uncertain that trial judges will have difficulty
understanding and applying it. Uncertainty in the jurisprudence
will have the result that a Court of Appeal decision will be
required to determine the final status of a case administratively
dismissed under Rule 48.14, which is intended to remove cases from
the court's docket without any judicial involvement".
Juriansz J.A. concluded that the result reached by the motion judge
in this case was reasonable.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).