IN THE SUPREME COURT OF NOVA SCOTIA
Citation: Hiscock v. Pasher, 2008 NSSC 36
Date: 20080204
Docket: SN No. 112927
Registry: Sydney
Between:
Florence M. Hiscock
Applicant/Plaintiff
v.
Mary M. Pasher
Respondent/Defendant
LIBRARY HEADING
Judge: The Honourable Justice Frank Edwards
Heard: January 22, 2008 in Sydney, Nova Scotia
Subject: Civil Procedure Rule 28.11 - Order by Prothonotary dismissing action.
Facts: The lawyer failed to move the action along for almost six years prior to a Prothonotary's dismissal order. While he responded to the first notice from the Prothonotary, he completely ignored the second. Further, the lawyer did not advise the Plaintiff of the Dismissal. The application to set aside was not made for more than one year after the dismissal.
Issue: Whether Order should be set aside; application of appropriate criteria; explanation for the delay; inadvertence in missing deadline; motion brought promptly; no prejudice to Defendant.
Result: Application dismissed. Lawyer's wilful neglect more than mere inadvertence. Conduct should not be condoned by the Court especially where Plaintiff has remedy in action against lawyer.
Cases Noted: Goodwin v. Rogerson, (2002) NSJ No. 469
Osborne v. Irving Oil Ltd. (2007) NSJ No. 331 (S.C.)
Reid v. Dowe Corning Corporation (2001) 11 C.P.C. (5th) 80, 2001 (Ont Master)
Scaini v. Prochnicki and Winn, [2007] O.J. No. 299
Marché D'Alimentation Denis Thériault Ltée v. Giant Tiger Stores Ltd., [2007] O.J. No. 3872 (C.A.)
Printing Circles v. Compass Group Canada (Beaver Ltd.), [2007] O.J. No. 2682 (Sup. Ct. J.)
THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET.