In Macaulay v. McKee 2011 ONSC 6710 (CanLII), the court considered the effect of an order requiring payment of costs by a certain date and non-compliance (substantial compliance?) with that order.

By court order, the plaintiffs in a motor vehicle action (the accident happened in 1999) were to pay costs by noon on November 24, 2010. If the plaintiffs defaulted, the plaintiffs’ action was to be dismissed. 

Payment was rendered late in the day on November 24, 2010. 

Notwithstanding, the plaintiffs’ claim was dismissed.

The plaintiffs retained new counsel, and moved to extend the time limits set out in the earlier court order. The plaintiffs were successful.

The court noted that there was no prejudice to the defendants that could not be compensated for in costs. 

The court further noted that the fact that the plaintiffs may have a cause of action against their prior lawyer if the dismissal was upheld should not be a factor considered by the court in determining whether the dismissal should be set aside. The primary concern should be the rights of the litigants, and not the conduct of their counsel.

The court ordered that the plaintiffs were liable to the defendants for the costs of the motion to set the dismissal aside.

Thanks for reading.

Paul Trudelle – Click here for more information on Paul Trudelle