Lord v. Smith, 2012 NSSC 232

SUPREME COURT OF NOVA SCOTIA Citation: Lord v. Smith, 2012 NSSC 232 Date: 20120619 Docket: Hfx. No. 167941 Registry: Halifax Between: Michael Kenneth Lord Plaintiff v. Leanne Smith Defendant LIBRARY HEADING Judge : The Honourable Justice Peter P. Rosinski Heard: June 12, 2012 in Halifax, Nova Scotia Subject: Setting aside Appearance Day Order dismissing a Plaintiff ’ s claim for inactivity - Practice Memorandum No. 27 [Part three - Appearance Day] Civil Procedure Rules (1972).

Summary: Action filed claiming damages for a 1998 motor vehicle collision. Defendant never served, but insurer aware of the collision and conducted preliminary investigation. After twenty-four months, Prothonotary placed matter on Appearance Day docket pursuant to Practice Memorandum No. 27. On April 7, 2003, Judge dismissed Plaintiff ’ s action for inactivity. Plaintiff ’ s previous counsel was removed previously by action of the Bar Society.

Plaintiff was represented by new counsel, yet did not advise court of change of counsel, and therefore neither counsel nor the Plaintiff received notice from the Prothonotary of the Appearance Day motion. As no defence was filed, Prothonotary was unable to contact the Defendant. Thus no one appeared on the Appearance Day. One year later, in April 2004, Plaintiff ’ s counsel became aware of the dismissal. Prothonotary suggested it could be set aside on application. No action taken until March 2012 to set aside the Order for dismissal. Another counsel had been retained since October 2010.

Issue: Does the Court have jurisdiction to, and should it in this case, set aside the April 7, 2003 Order for dismissal? Result: It was found appropriate to use the test from Hiscock v. Pasher [2008] NSJ No. 475 (CA) to decide on the merits whether to set aside the Order for dismissal. The Court exercised its inherent jurisdiction to set aside the Order for dismissal.

THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET . SUPREME COURT OF NOVA SCOTIA Citation: Lord v. Smith, 2012 NSSC 232 Date: 20120619 Docket: Hfx. No. 167941 Registry: Halifax Between: Michael Kenneth Lord Plaintiff v. Leanne Smith Defendant Judge: The Honourable Justice Peter P. Rosinski Heard: June 12, 2012, in Halifax, Nova Scotia Counsel: David Green, for the Plaintiff Dennise Mack, for the Defendant By the Court : Background [ 1 ] This is a Motion in Chambers requesting the Court to order the setting aside of MacDonald, ACJ ’ s Order of April 7, 2003 dismissing the Plaintiff ’ s claim.

[ 2 ] On file we find the following; on December 18, 2000 an Originating Notice Action / Statement of Claim was filed by Kyle D. Langille of Pressé Mason Law Office, Bedford, Nova Scotia; it alleged the Defendant caused a rear end collision which caused injuries to Mr. Lord on December 11, 1998. No further litigation documents have been filed by either the Plaintiff or Defendant since then. [ 3 ] No proof of service on the Defendant has been established. However Susan Crooks (employee of the Defendant ’ s insurer) was dealing with the file since October 2001, and Mr. Langille who was representing Mr.

Lord in 2002, according to her affidavit and cross-examination. The matter was brought to the attention of the Defendant ’ s insurer. [ 4 ] Thereafter she dealt with John McKiggan, counsel for Mr. Lord, between 2002 - 2003. One of the earliest written contacts between them was his letter dated July 2, 2002 - Exhibit #1 at the hearing. She requested documents from him. It is unclear when, but the defendant ’ s representatives had received a June 27, 2001 assessment report from Dr. Tom Lane regarding Mr. Loane. At that time Mr.

Lord ’ s address is noted to be Unit #1, 5801 Inglis Street, Halifax, B3J 4M9, and it appears he remains at that address to this day. [ 5 ] Unbeknownst to either of the parties (it is unclear exactly when Mr. Langille ’ s retainer ended and Mr. McKiggan ’ s started and ended - although I conclude that Mr. Lord had counsel in March - April 2003) on or about April 7, 2003, the matter was dealt with by MacDonald, ACJ (as he then was) on a Prothonotary ’ s Motion pursuant to Practice Memorandum No. 27. [ 6 ] Practice Memorandum 27 reads in part: Appearance Day 1.

Appearance day is held weekly on Friday at 12:00 noon. ... 3. The court may on its own motion bring matters forward on apearance day to have counsel or the parties discuss with the court the status of the case where: ... (

b) twenty-four (24) months have passed since the filing of the originating notice and no defence has been filed. 4. The appearance day judge has the jurisdiction to award costs. Failure to appear at an appearance day may result in an order being issued against the absent party. [ 7 ] In the file we find a photocopy of a March 18, 2004 cheque from Dennise Mack LLB which is consistent with her having attempted to file a Defence, as she had been referred the file by Susan Crooks in early March 2004.

Also on file is an original signed copy of an April 1, 2004 letter from Annette Boucher, Q.C. to John McKiggan regarding this proceeding. I accept the contents of the letter as accurate regarding the chronology described by the Prothonotary therein. Dear Mr. McKiggan: Re: Michael Kenneth Lord v. Leanne Smith SH 167941

I have a telephone message from you of March 19, 2004 when I was away on vacation. At that time, you informed the Deputy Prothonotary that you were now representing Mr. Lord and you were not aware that the action had been dismissed. A Notice to Appear was issued in this matter on December 18, 2002 returnable at Appearance Day on January 3, 2003 as two years had passed since the action had been commenced and the court file consisted only of a copy of the Originating Notice (Action) and Statement of Claim. This was being done in accordance with Practice Memorandum No. 27. As Mr. Langille was Mr.

Lord’s solicitor when filing the commencing documents we attempted to contact Mr. Langille whom at that time, as you know, had his law practice taken over by the Barristers’ Society. The Barristers ’ Society informed us that Mr. Lord was representing himself in this matter. We then attempted to locate an address for Mr. Lord and were unsuccessful in doing so both on a internet search and on requesting that the Barristers’ Society provide us with a mailing address. All that was noted in the Statement of Claim was that the Plaintiff resided in Halifax.

On this basis, approximately four months after we first made our inquiries in this matter Associate Chief Justice MacDonald dismissed this action on the basis that we had been unable to locate the Plaintiff as thus he presumably had no interest in advancing the claim. A Certified copy of that Order is enclosed for your reference. On March 17, 2004 Ms. Mack attempted to file a Defence in this matter which was not accepted for filing on the basis that the file and action was closed.

It is certainly open to you at this point to make an application to the court on notice to the proposed Defendant to set aside Associate Chief Justice MacDonald’s dismissal Order in this matter. Yours Truly, Annette M. Boucher Prothonotary [My emphasis] [ 8 ] Thus when the Order for dismissal issued on April 7, 2003, the Plaintiff had counsel, but the Court was unaware of this, and since the Plaintiff was not located, he did not receive notice of the imminent dismissal of his action.

No Defence had been filed, so neither the Defendant nor any representative on her behalf was notified. [ 9 ] Dennise Mack wrote to Mr. McKiggan on March 24, 2004 to confirm her contact with him, and that the claim had been dismissed. [ 10 ] As noted in the April 1, 2004 Prothonotary ’ s letter to Mr. McKiggan, he was advised that Ms.

Dennise Mack had attempted to file a Defence on March 17, 2004, and that it was “ certainly open to you at this point to make an application to the court, on notice to the proposed Defendant, to set aside ACJ MacDonald ’ s dismissal Order in this matter. [ 11 ] Thereafter no procedural steps of any kind were taken by the Plaintiff until he contacted the Prothonotary ’ s office in 2010 though his counsel David Green, to which Annette Boucher, Q.C. in her usual thorough fashion, responded in writing (fax confirmation to Mr. Green ’ s office included in the court file) on October 27, 2010. [ 12 ] She wrote in part:

RE: Hfx. No. 167941 - Michael Kenneth Lord v. Leanne Smith I have received your telephone inquiry wherein you are asking how to have the Order of Associate Chief Justice Michael MacDonald, as he then was, dated April 7, 2003, in this matter, set aside. The order dismissed this action. I have reviewed the court file and note, in 2004, there had been an inquiry made by John McKiggan on behalf of Mr. Lord inquiring as to how he could go about setting aside the Order of Associate Chief Justice MacDonald at that time. A copy of that letter (April 1, 2004) is enclosed for your reference.

So it seems that at least one year after the Order was entered that the Plaintiff was aware the Order had issued by the court and was through counsel making inquiries about how to have the Order set aside. Nothing further occurred on this file until your most recent inquiry of October 22, 2010. As you know, pursuant to Civil Procedure Rule 82.18 a judge may dismiss a proceeding that is not brought to trial or hearing in a reasonable time. It would be upon a similar authority that the Associate Chief Justice would have rendered his Order in this matter on April 7, 2003.

As there was no adjudication in this case on the merits of the action itself, it is open to you to bring a motion before a Chambers Judge invoking the equitable inherent jurisdiction of the court to set aside the earlier dismissal Order so that the matter could be pursued at this time.

However, as you are aware, an Affidavit in support of the motion would have to be presented to the court setting out the reasons why the Plaintiff did not pursue this matter a year after the Order was granted when he made inquiries through counsel on April 1, 2004, with regard to how to set aside this matter. [My emphasis] The Evidence Plaintiff [ 13 ] On March 28, 2012 Mr. Green filed a Notice of Motion including Mr.

Lord ’ s affidavit sworn March 23, 2012. [ 14 ] Highlights of his affidavit include: 1. “ I had not notice [of the Prothonotary ’ s] motion leading to [the April 7, 2003] Order. ” 2. “ In February or March 2004 I consulted Mr. John McKiggan.... [and] I understood [thereafter] Mr. McKiggan was making or, after a time, that he had made such an application [to set aside the Order dismissing my claim]. ” 3. “ I have attended for many treatments and medical assessments particularly in the years immediately following the accident. Representatives of Ms.

Smith have been provided with the reports arising out of these medical assessments or medical records... ” 4. “ In the fall of 2010 I became fed up with the failure of Mr. McKiggan to protect my interests and proceed with my claim... ” 5. “ I have never wavered from my intention to pursue my claim for damages and am still intent on doing so. ”

[ 15 ] In cross-examination Mr. Lord ’ s statements in his affidavit, came under attack. His evidence in response was fairly characterized as vague, generalized answers, which were not often supported by independent objective evidence - eg:

i) Para. 4 - “ In February or March of 2004, I [first] consulted Mr. John McKiggan... ” - in contrast Exh. #1 clearly shows that Mr. McKiggan represented him as early as July 2002. For a witness who purported to have maintained copies of all relevant documents and admitted his counsel Mr. Green and he had Mr. McKiggan ’ s file in their custody, this is a bewildering mistake about something as simple as when he first retained Mr. McKiggan; thereafter he admitted in cross-examination that Mr. McKiggan could have been his lawyer as early as late 2001: “ Yeah possibly ” ; ii) para. 5 - “ I understood Mr.

McKiggan was making or after a time, that he had made, such an application [to set aside the dismissal order]... I understood that discussions with Mr. Smith ’ s representatives were proceeding ” - yet in cross-examination he conceded that his own last personal contact with the Defendant ’ s insurers was in 2004 and when asked whether or not Mr. McKiggan had told him that McKiggan had any contact with the Defendant ’ s insurer since 2004 - he replied “ I don ’ t know ” ; when para. 10 of Ms.

Crooks ’ affidavit was shown to him to the effect that the Defendant did not receive any communication from the Plaintiff or his counsel after March 22, 2004 he replied: “ That ’ s possible ” ; iii) he suggested repeatedly that he had made “ numerous ” enquiries over the years of Mr. McKiggan about the status of his lawsuit, and whatever Mr. McKiggan told him, he was left with the impression that the application to set aside the Dismissal Order had been made and his lawsuit was active again - yet he waited until the fall of 2010 to confront Mr.

McKiggan about the slow pace of the litigation, and only then was he told by Mr. McKiggan that “ the file was going nowhere - nothing that [Mr. McKiggan] could do about it ” - and that the application to set aside the dismissal had never been made - the suggestion is that Mr. McKiggan misled him, and specifically ignored Mr. Lord ’ s specific instructions to make the application to set aside the dismissal. These very serious unproven allegations could easily have been confirmed by documents in Mr. McKiggan ’ s file or by having him attend to give evidence, yet neither was done; iv) Mr.

Lord says he had to continue rehabilitative “ therapies ” as recent as two weeks ago and over the course of the last eight years [since 2004 and before], yet not one of those was submitted for reimbursement or provision to the Defendant ’ s insurer / counsel it seems - he suggests that in fact nothing was done on the file by Mr. McKiggan, while reassuring Mr. Lord over eight years that the litigation was ongoing. Without Mr. McKiggan ’ s evidence about the events between April 2004 and late 2010, the court is not able to confidently come to the factual conclusions other than to say that while Mr.

Lord ’ s testimony was a source of frustration for, and some level of scepticism by, the court, it does appear that his evidence is sufficiently credible to cause me to conclude, in view of all the evidence, that Mr. McKiggan was his counsel from early 2002 at least, and that he became aware of the need for an application to set aside the Dismissal Order to be made. He appears to have had a retainer that continued on until the fall of 2010. Defendant [ 16 ] Susan Crooks filed an affidavit sworn May 16, 2012. She is a litigation specialist with the insurer of the Defendant, Ms. Smith.

The highlights of her affidavit include: 1. “ Although I had been dealing with Kyle Langille, who represented Mr. Lord, in or around 2002, I was informed that John McKiggan was now representing Mr. Lord. Between 2002 and 2003, I had several communications with Mr. McKiggan in which I was requesting documents. 2. In or about 2004, I reviewed the within file, which was an old file involving a 5 year old motor vehicle accident. As I was having difficulty moving the file forward to a conclusion, I retained counsel Dennise Mack on or about March 2, 2004, to move the matter along. 3.

Shortly after referring the file to Ms. Mack, I was advised by Ms. Mack that the plaintiff ’ s Action had been dismissed by the Prothonotary. 4. I had no further communications with either the Plaintiff or counsel on behalf of the Plaintiff after referring the matter to Ms. Mack [on March 2, 2004]. I am informed by Ms. Mack, and verily believe it to be true, that until the fall of 2010, she did not have receive

further communications with either the Plaintiff or any counsel representing the Plaintiff after sending her letter of March 22, 2004 to Mr. McKiggan. 5. Since no application was brought to set aside the Prothonotary ’ s Order, and since no communication was received from either Mr. Lord or anyone on his behalf following Ms. Mack ’ s letter to Mr. McKiggan on March 22, 2004, I closed this file on our system on June 21, 2005. 6. Since closing the file in our system on June 21, 2005, I heard nothing further from Mr. Lord or his counsel, and have been advised by Ms.

Mack that she did not hear anything further from Mr. Lord or his counsel, until Mr. Green was retained, in the fall of 2010. 7. Mr. Lord ’ s file remained closed with no communication, documentary collection or activity between June 21, 2005 and Mr. Green ’ s retention in the fall of 2010. 8. I do not know the current whereabouts of the Defendant, Leanne Smith. If the dismissal of the Action is set aside, Ms. Smith will be severely prejudiced as a result of the inordinate passage of time. ” [ 17 ] In cross-examination Ms. Crooks noted that she was one of four adjusters to be responsible for Mr.

Lord ’ s claim file, but that since the Defendant ’ s insurer had been notified on a timely basis of the collision, they did have an opportunity to conduct their routine inquiries and get statements from witnesses, etc. - she stated: “ I believe these were all done ” . She confirmed that the whereabouts of the Defendant, Leanne Smith are unknown to the insurer at this time. [ 18 ] The chronological facts that I accept herein establish that between the April 1, 2004 Prothonotary ’ s letter to Mr.

McKiggan and October 2010 neither the Plaintiff nor anyone on his behalf contacted the Defendant or her representatives. Mr. McKiggan and Mr. Lord were both aware that the Action had been dismissed by early April 2004. [ 19 ] Why did the Plaintiff take no further steps between April 1, 2004 and October 2010 to challenge the dismissal Order? [ 20 ] Given this preliminary question in my mind, and aware of the retention of Mr. McKiggan sometime during the years 2001 to 2004, yet with no evidence from him, I wrote to counsel on June 8, 2012 as follows: I have reviewed the materials herein and noted that Mr.

Lord in his affidavit alleges that “... in the fall of 2010 I became fed up with the failure of Mr. [John] McKiggan to protect my interests and proceed with the claim”. Given this allegation, it would seem appropriate, as a courtesy at least, to make Mr. McKiggan aware immediately of its nature by providing all relevant documentation to him if that has not yet been done. If any further materials are to be filed please forward them to me on an “urgent” basis. [ 21 ] At the hearing Mr. Green represented that in the fall of 2011 he had spoken to Mr.

McKiggan about the unfiled application to set aside the dismissal, and that he had supplied my letter and the motion documents to Mr. McKiggan on June 11, 2012. He elaborated that Mr. McKiggan intended to examine the materials, but did not intend to attend the hearing on June 12, 2012. [ 22 ] Defendant ’ s counsel suggested that the Court should draw a negative inference from the Plaintiff ’ s decision not to call Mr. McKiggan as a witness. I decline to do so here, as we are dealing with a procedural matter which could preclude Mr. Lord having his day in court; because it is not clear that Mr.

McKiggan ’ s evidence would differ in substance from Mr. Lord ’ s; and because it appeared Mr. Green did not turn his mind to do so until he received my letter of June 8, 2012.

Issues [ 23 ] This hearing presents the following issues for resolution:

i) Are paras. 7 and 9 in Mr. Lord ’ s affidavit (and any associated references in his brief) objectionable as precluded by settlement negotiations privilege? ii) if the new Rules CPR (2009) apply to this hearing is there a basis therein for the remedy sought, or may the court have recourse to its “ inherent jurisdiction ” to effect the remedy sought by Mr. Lord? iii) If the old Rules, CPR (1972) apply to this hearing, is there a basis therein for the remedy sought or may the court have recourse to its “ inherent jurisdiction ” to effect the remedy sought by Mr.

Lord? iv) If the court may have recourse to its inherent jurisdiction as the only basis upon which the sought remedy may be effected, is this a proper case to overturn the April 7, 2003 Order for Dismissal? i - Settlement Negotiation Privilege [ 24 ] The impugned paragraphs contain portions that are inadmissible as they violate the privilege cited. I strike those portions and specifically:

a) All of para. 7; b) “ Mr. Green advised me... unacceptable to me ” in para. 9. ii - New Rules or Old Rules Applicable? [ 25 ] This action was started before January 1, 2009 when the new Rules displaced the old Rules (1972). Civil Procedure Rule (2009) 92.02(1)(

b) suggests on its face that the new Rules apply to “ all steps taken ” in a proceeding after January 1, 2009. Both “ proceeding ” and “ step in a proceeding ” are defined in CPR 94.10. [ 26 ] In my view the Action, though dismissed on April 7, 2003 is properly considered a “ proceeding ” at this time. Here there was no determination made on the merits. [ 27 ] Is the motion herein a “ step in a proceeding ” ? [ 28 ] The motion by Mr. Lord has an uncertain legal foundation. The motion itself, and Mr.

Lord ’ s brief, suggest that the “ inherent jurisdiction ” of this court is the basis upon which the order for Dismissal could be overturned. I acknowledge that the Defendant contests the validity of this assertion by the Plaintiff. [ 29 ] Although “ step in a proceeding ” is defined as “ means... ” in CPR (2009) 94.10, I nevertheless adopt a more inclusive

interpretation to “ step in a proceeding ” so that a motion such as the one before me is included in that definition, and therefore the new

Rules presumptively apply to this motion, unless pursuant to CPR (2009) 92.08(2) the application of the new Rules “ causes one party to gain an unfair advantage over another ” . [ 30 ] In such cases, the application of those Rules that remove or reduce the unfairness become applicable. [ 31 ] Under the new Rules, the intention is to make transitional steps in pre January 1, 2009 proceedings as a close in effect as those under the new Rules, though recognizing that some steps may already have been taken under the old Rules.

Unless the proposed steps to be taken under the new Rules rise to a level of unfairness, the new Rules are to be followed. [ 32 ] Here, depriving Mr. Lord of the opportunity to argue that the Order for Dismissal should be overturned, on a technical application of either the new or old Rules would rise to such a level of unfairness. [ 33 ] Therefore, I conclude that Mr. Lord must at least have the opportunity to argue that, this Court has “ inherent jurisdiction ” , and should exercise it in this case to his favour. [ 34 ] Having said this, I observe that:

i) Under the old Rules this matter was brought forward on the Prothonotary ’ s Motion pursuant to Practice Memorandum No. 27 “ Appearance Day ” but I note neither the Plaintiff nor Defendant had notice thereof; ii) until April 1, 2004 the Plaintiff and/or his representative was not aware of the Order for Dismissal issued April 7, 2003; iii) at any time between April 1, 2004 and January 1, 2009 (and January 1, 2009 to October 2010) the Plaintiff could have earlier contested the Order for Dismissal yet did not do so; iv) the Court in 2003 could not have relied on: CPR (1972) 12 (Default of Defence) since none was filed as no service was effected on the Defendant; CPR (1972) 28.13 - (Dismissal for Want of Prosecution) since the Defendant did not apply to have it dismissed; nor CPR 51.05 - (orders made by a Prothonotary), since the Order was that of a Judge in response to the Prothonotary ’ s Motion following Practice Memorandum No. 27 “ Appearance Day ” - although I recognize the Judge ’ s Order in this case is a near cousin to the Prothonotary ’ s administrative Order under CPR 28.11 - see Roscoe, JA ’ s comments at para. 19 Hiscock v.

Pasher 2008 NSCA 101 .

v) had the Prothonotary been able to contact either the Plaintiff or Defendant, the court would have then had the benefit of a status update which may very well have altered the outcome. [ 35 ] In conclusion I consider it immaterial at this stage of the analysis whether the old or new Rules are relied upon because in either case it is in the interests of justice to allow Mr.

Lord to make his argument that it is the Court ’ s “ inherent jurisdiction ” that should provide the basis for the remedy he seeks. [ 36 ] Conversely the Defendant is entitled to argue that the Court ’ s inherent jurisdiction does not apply to these circumstances or that if it is available, it ought not to exercise that discretion here. iv - Merits of the Motion The Court ’ s Inherent Jurisdiction is Limited

[ 37 ] How does a Court decide when “ inherent jurisdiction ” should be relied upon? [ 38 ] While this Court has an “ inherent jurisdiction ” to control its own process and prevent injustices, its jurisdiction has significant restrictions - see Nova Scotia (Securities Commission) v. Potter 2012 NSCA 12 per Bryson, JA and the Supreme Court of Canada ’ s comments in R v.

Caron 2011 SCC 5 . [ 39 ] “ Inherent jurisdiction ” is available to supervise so-called inferior courts and tribunals, as well as to allow the court the flexibility to ensure an injustice is not occasioned by a rigid application of its own processes and rules. It operates where no alternative remedy exists to prevent an injustice - eg. where no right of appeal exists in the Civil Procedure Rules due to a drafting oversight - see para. 19 of the Court ’ s decision in Goodwin v. Rodgerson 2002 NSCA 137 . [ 40 ] In Hiscock v.

Pasher 2008 NSCA 101 the Court had to consider whether a Chambers Judge erred in his consideration of the appeal from a Prothonotary ’ s CPR (1972) 28.11(3) Order Dismissing an Action.

It found error by the Chambers Judge in not setting aside the Prothonotary ’ s order dismissing the action (at para. 27). [ 41 ] Justice Roscoe observed that such orders were administrative; not made after a consideration of the merits of the case; which assist the court in “ clearing the docket of cases that are not likely to proceed ” - para. 20. [ 42 ] On appeal, the Court adopted the test applicable to Defendant Motions seeking dismissal for want of prosecution, and summarized the test at para. 23: [23] Under Rule 28.13, the defendant bears the burden as the applicant.

On appeal from a Prothonotary’s Rule 28.11 order, the plaintiff, as the appellant, ought to bear the burden of proving: 1. That there is no inordinate or inexcusable delay, or, if there is, that it is not the plaintiff personally who is to blame for the delay; 2. That the plaintiff has always intended to proceed with the action and was either unaware of the Rule 28.11 notice or her solicitor’s failure to respond to it; 3. That the defendant has not likely been prejudiced by the delay; and, 4.

After balancing all the relevant factors, it is shown to be in the interests of justice, to set aside the prothonotary ’s order. [ 43 ] In my opinion, though an order of a Judge, the April 7, 2003 Order for Dismissal here is, in essence, very comparable to a Prothonotary ’ s order to dismiss for want of prosecution, and therefore the same considerations as noted above ought to guide the application of inherent jurisdiction to cases such as the one at Bar (both counsel agreed with the Pasher test being applied to this case) provided that there is no alternative remedy available. [ 44 ] At this juncture it becomes important to consider the old and new Rules again.

Under the old Rules or new Rules is there an alternative effectual remedy available? Position of Parties Plaintiff:

[ 45 ] Mr. Lord argues on the merits that an order should issue to set aside ACJ MacDonald ’ s decision of April 7, 2003 dismissing his claim for the following reasons: 1. There is no dispute that the Defendant is liable; only the amount of damages is in issue (see my earlier comments regarding settlement negotiation privilege- the Defendant ’ s contest liability); 2. Mr.

Lord has always had the intention to pursue his claim and he personally has been diligent in doing so; 3. there is no evidence that the Defendant has likely been prejudiced by any delays herein; 4. therefore it is in the interests justice to set aside the Dismissal Order of April 7, 2003 - citing Clarke v. Sherman 2002 NSCA 64 . [ 46 ] Mr. Lord argues further that the jurisdiction of this Court is found in its “ inherent jurisdiction ” citing: Hiscock v. Pasher 2008 NSCA 101 Goodwin v. Rodgerson 2002 NSCA 137 Defendant [ 47 ] Whether under the old Rules or new Rules, Mr. Lord ’ s motion must fail because:

i) Under CPR (2009) only two Rules could apply: specifically 78.08 - (Errors and Extensions of time) permits changes to an existing order; or Rule 90 - (Civil Appeals) which requires under 90.06 and 90.13 that it be started within 25 days of the Order (I note extensions of time are possible - see recently Justice Beveridge ’ s reasons in Farrell v. Casavant 2010 NSCA 71 although the Defendant argues that Mr. Lord could not succeed thereunder in obtaining an extension of the appeal filing deadlines); ii) under CPR (1972) one must consider that the purported jurisdictional basis for the Order was the “ Appearance Day ”

part 3 portion of Practice Memorandum No. 27. Practice Memorandums do contain some practice directives and some guidelines. Although a Judge ’ s Order, the Defendant argues it was in effect a Prothonotary ’ s order under 28.11(3), which could have been appealed pursuant to CPR (1972) 51.05(3) (As noted earlier I disagree with the view that the Order is issued pursuant to CPR (1972) 28.11).

Since the Plaintiff did not appeal even after he became aware by April 1, 2004 of the Order for Dismissal, he cannot now avail himself under the new or old Rules - (see my comments under Farrell above); iii) the test to set aside an order should be that used by courts in deciding whether to set aside a Prothonotary ’ s order under CPR (1972) 51.05 - i.e. per Hiscock v. Pasher 2008 NSCA 101 . To be successful therefore Mr. Lord must establish all of the following: 1.

There is no inordinate or inexcusable delay, or if there is, that it is not the Plaintiff personally who is to blame for the delay; 2. the Plaintiff has always intended to proceed with the action and was either, unaware of the Rule 28.11 notice, or his solicitor ’ s failure to respond to it;

3. the Defendant has not likely been prejudiced by the delay; 4. after balancing all the relevant factors it is shown to be in the interests of justice to set aside the Prothonotary’s Order. [48] The Defendant relies on Savoie v. Fagan (1998) 1998 NSCA 41 , 165 NSR (2d) 276 [1998] NSJ No. 27 (CA) tobuttress its argument that:

i) As a rule, the longer the delay, the greater the inference or likelihood of serious prejudice arising which would cause a substantiallikelihood that it is not possible to have a fair trial on the merits; ii) if there is direct evidence of prejudice, such as irreplaceable loss of evidence, both the actual and inferred prejudice must cumulativelybe considered. [49] In its brief, the Defendant reminded the Court that an exercise of the Court’s inherent jurisdiction is not solely to be based onwhat the Court considers “fair”, but rather it requires the application and balancing of all the relevant factors - ABN Amro Bank Canadav. NsC Diesel Power Inc.

(1991) NSR (2d) 361, [1991] NSJ No. 108, per Hallet, JA. [50] Moreover, the Defendant suggests that Mr. Lord should be appealing the April 7, 2003 Order for Dismissal before he comes tothis Court requesting it to use its “inherent jurisdiction” to overturn the Order for Dismissal. Analysis [51] I start with the observation that each case has its own unique factual matrix. (I note that without setting out the jurisdictionalbasis therefor Annette Boucher suggested that an application could be made to the Court to set aside the dismissal order.) In this case,arguably Mr.

Lord could not have appealed the April 7, 2003 Order under the old Rules, or under the new Rules should they beapplicable. Nevertheless, having said that, should I be wrong, I observe that whether seen as a motion to extend the time to take a step ina proceeding (eg. an appeal as in Farrell) or to revisit an order for dismissal as, urged here [eg. to review a decision to grant an Order forDismissal for want of prosecution - Hurley v.

Cooperators General Insurance Co. (1998) 169 NSR (2d) 1998 NSCA 127 ,[1998] NSJ No. 184 (CA) per Flinn, JA, at paras. 28 - 30] - the “three part test” referred to by Beveridge, JA in Farrell at para. 17regarding extensions of time to appeal, embodies the same spirit and similar factors as the test on review of an Order for Dismissal. [52] In considering present day extensions to file appeals, the traditional “three part test” [compelling or exceptional circumstancesthat warrant the extension: i.e. a strongly arguable case that the judge erred and real grounds exist for interfering with the decision;bonafide intention to appeal with the right to appeal existed; reasonable excuse for the delay], has “morphed into being more properlyconsidered guidelines or factors which a Chambers Judge should consider in determining the ultimate question as to whether or notjustice requires that an extension of time be granted” per Beveridge, JA at para. 17.

He continued: From these, and other cases, common factors considered to be relevant are the length of delay, the reason for the delay, the presence orabsence of prejudice, the apparent strength or merit in the proposed appeal and the good faith intention of the applicant to exercisehis right of appeal within the prescribed time period. The relative weight to be given to these or other factors may vary. As Hallett J.A.stressed, the test is a flexible one, uninhibited by rigid guidelines. [My emphasis] [53] These guidelines are not dissimilar from those in reviewing an Order for Dismissal:

1. That there is no inordinate or inexcusable delay, or, if there is, that it is not the plaintiff personally who is to blame for the delay; 2. That the plaintiff has always intended to proceed with the action and was either unaware of the Rule 28.11 notice or her solicitor's failure to respond to it; 3. That the defendant has not likely been prejudiced by the delay; and 4. After balancing all the relevant factors, it is shown to be in the interests of justice, to set aside the prothonotary's order. Hiscock v.

Pasher , [2008] NSJ No. 475 (CA) Conclusion [ 54 ] On balance: I cannot say that the Plaintiff is personally to blame for the delay in the making of the application to set aside the April 7, 2003 Order for Dismissal; moreover it appears that the Plaintiff has always intended to proceed with the action. [ 55 ] As to prejudice to the Defendant, I accept that, having reasonably believed that the action would remain dismissed after April 2004, there may be some prejudice to the Defendant in her ability to establish no liability for the collision, no causation for damages, and no contributory negligence, etc., however I find that the prejudice is not so substantial, given that the collision was reported early enough to allow the Defendant to do an investigation and follow up to assess its preliminary position regarding the issues in the action. [ 56 ] While some records from treatment providers or experts may be unavailable (eg. physio-tech, clinic records) or not as fresh (Dr.

Nurse ’ s records), most of these are records that the Plaintiff will require to prove his claim more so than the Defendant, who would seek to possibly discredit them; the burden of proof lying on the Plaintiff. [ 57 ] Other records, such as witness statements, and potential discoveries based thereon may be less than ideal - but nevertheless sufficient to ensure a fair trial between the parties. [ 58 ] Balancing all those factors, I find that it would not be in the interests of justice to deny Mr.

Lord his day in court by allowing the April 7, 2003 Order to stand, and therefore I set aside that Order. [ 59 ] Given the unusual circumstances, I will make no order as to costs. J.