Executive Summary: Key Legal and Evidentiary Issues

• Plaintiff sought to set aside a registrar’s dismissal for delay under Rule 48.14 of the Rules of Civil Procedure.

• Delay spanned nearly seven years with minimal progress and no discoveries, mediation, or trial timetable established.

• Plaintiff attributed the delay to her lawyer’s mistaken belief about post-COVID procedural deadlines.

• Court found no satisfactory or credible explanation for the delay, nor evidence of consistent intent to prosecute.

• Presumption of prejudice to defendants was not rebutted due to unavailable witnesses and missing documentary evidence.

• Motion was dismissed and the registrar’s dismissal order upheld due to the failure to meet the legal test.

Factual background and origin of the dispute

The plaintiff, Tatiana Chekhovtsova, initiated a personal injury claim stemming from a motor vehicle accident that occurred on April 13, 2016. The vehicle involved was driven by Peter Mutschler and owned by Anita Bergmann. The action was commenced on October 4, 2017. Ms. Chekhovtsova later moved to the United States, and her involvement in the litigation continued through counsel.

The early stages of litigation were marked by insurance complications. Intact Insurance advised the plaintiff in early 2018 that Mutschler was an excluded driver under the policy, resulting in a lack of insurance coverage for either defendant. This prompted a third-party claim by Bergmann against Intact and, later, an amendment by the plaintiff to add her own insurer, Coachman Insurance, to the action under uninsured/underinsured provisions.

Despite attempts to move the matter forward, Examinations for Discovery were scheduled but never proceeded. Delays ensued due to unresolved insurance issues and conflict allegations made by the plaintiff’s counsel against defence counsel. Little litigation progress occurred between 2017 and 2024.

Registrar’s dismissal and motion to set it aside

On June 12, 2024, the action was administratively dismissed by the registrar for failing to be set down for trial within five years, in accordance with Rule 48.14. The plaintiff brought a motion to set aside this dismissal under Rule 37.14, arguing that her lawyer misunderstood the resumption of administrative dismissals following the COVID-19 suspension and believed there would be an additional grace period of 182 days.

The plaintiff claimed she always intended to pursue her claim and relied entirely on her counsel. Her lawyer admitted responsibility for the delay and cited challenges related to COVID-19 disruptions, staff turnover, and misplaced focus on tangential procedural disputes.

Court’s legal analysis and findings

The court applied the four-part test for setting aside a dismissal: (1) satisfactory explanation for delay, (2) continued intention to prosecute, (3) prompt motion to set aside once aware of the dismissal, and (4) no significant prejudice to the defendant. Only the third factor was conceded by all parties.

The court found that the delay—nearly seven years with no discoveries or mediation—was not adequately explained. It ruled that the lawyer’s misunderstanding of procedural deadlines lacked credibility, especially given clear public notices about administrative dismissals resuming. No meaningful plan to advance the case was presented, and the plaintiff remained passive throughout the litigation.

The plaintiff also failed to rebut the presumption of prejudice. Mr. Mutschler, a key witness, had passed away, and vital medical and employment records were likely lost or unavailable. The plaintiff did not produce concrete evidence confirming that key documents had been preserved. The court noted that trial fairness had been compromised.

Final outcome

The motion to set aside the registrar’s dismissal was dismissed. The court emphasized that while civil matters should ideally be resolved on their merits, that principle must be balanced against the duty to advance litigation efficiently. The dismissal order stands, and the plaintiff’s action remains dismissed. If costs cannot be agreed upon, the court invited written submissions to resolve the issue.