Court of Appeal

                                NOVA SCOTIA COURT OF APPEAL

Citation: Hiscock v. Pasher, 2008 NSCA 101

Date:  20081028

Docket: CA 292378

Registry: Halifax

Between:

Florence M. Hiscock

Appellant

v.

Mary M. Pasher

Respondent

Judge:                            The Honourable Justice Roscoe

Appeal Heard:                September 11, 2008

Subject:       Civil Procedure Rule 28.11, appeal from prothonotary’s dismissal order

Summary:   An action by the plaintiff for damages resulting from a motor vehicle accident was dismissed by the prothonotary pursuant to Rule 28.11 when her solicitor failed to file a notice of intention to proceed. Her application to have the order set aside was dismissed by the chambers judge.

Issues:         What is the test that should be applied by a chambers judge on an appeal of a prothonotary's order dismissing an action for failure to respond to a notice pursuant to Rule 28.11(2)? Did the chambers judge err by requiring the plaintiff to satisfy the criteria listed in Reid v. Dow Corning Corporation (2001) 11 C.P.C. (5th) 80 ?

Result:        Appeal allowed. On an appeal of 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.    

The application of this test leads to the conclusion that it is in the interests of justice that the plaintiff's action should be reinstated and the prothonotary's order be set aside. The chambers judge erred by over emphasizing the plaintiff’s solicitor’s neglect and in failing to consider the plaintiff's lack of blameworthiness in attempting to balance the interests of the parties.