Dismissal for Delay Upheld on Appeal

In Lumaj v. St. Michael’s Hospital, 2021 ONSC 5786, the Divisional Court upheld a dismissal of a lawsuit for delay.

The registrar had dismissed the lawsuit in May 2013. The plaintiff’s former lawyer did not take steps to set aside the dismissal. The plaintiffs themselves first learned of the dismissal in June 2019 and promptly sought to set it aside.

Master McGraw concluded that, in the absence of any evidence from the plaintiffs’ former lawyer on why the deadline to set the action down for trial was missed, or any explanation for the failure to move to set aside the dismissal for six years, the plaintiffs’ lawyer had effectively abandoned the action. Master McGraw also held that there was prejudice to the defendants.

On appeal, Justice Swinton upheld the dismissal of the plaintiffs’ motion to set aside the dismissal order, holding that Master McGraw applied the correct legal principles.

This decision demonstrates that a lawyer’s behaviour which results in excessive delay can be visited on his or her clients, with significant consequences.