The Court of Appeal’s decision in  Piedrahita v. Costin provides clarifying interpretation of the test on a motion to set aside a dismissal order for delay. The decision gives a distinct boost to the resiliency of delayed actions by lowering the threshold required to set aside an order dismissing for delay.


The initial matter, titled Piedrahita v. Brad, arose out of a motor vehicle accident that occurred on May 11, 2012. The plaintiff retained counsel in July of that same year and a statement of claim was issued on May 27, 2014. In November of 2014 the registrar gave notice of intention to dismiss the action and the action was subsequently dismissed on December 29, 2014.

Four years later in May of 2018 the plaintiff, now represented by new counsel, brought a motion to set aside the registrar’s dismissal. The motion was heard in December of 2021, almost seven years from the date of the dismissal. The trial judge denied the plaintiff’s motion on a number of grounds, centering around the plaintiff’s failure to provide evidence demonstrating her intent to advance the litigation, stating that her affidavit “simply makes a bald assentation that she intended to pursue this action” .

Also of concern to the trial judge was the prejudice placed upon the defendant who, had the motion been successful, would have been required to locate and examine witnesses on an event that took place nearly eight years ago. The combination of these factors and the lack of evidence or explanation provided by the plaintiff to justify the delay, led the trial judge to dismiss the motion.


The panel comprised of Justices Simmons, Harison, Young, and George allowed the appeal and set aside the administrative dismissal for delay. The Court reviewed the four part test engaged by the motion judge (and previously endorsed by the Court of Appeal):

  1. Has the plaintiff provided a satisfactory explanation for the litigation delay?
  2. Has the plaintiff led satisfactory evidence to explain that she always intended to prosecute the action within the applicable time limits but failed to do so through inadvertence?
  3. Has the plaintiffs demonstrated that she moved forthwith to set aside the dismissal order as soon as the order came to her attention? and
  4. Has the plaintiff convinced the court that the defendants have not demonstrated any significant prejudice in presenting their case at trial as a result of the plaintiff’s delay or as a result of steps taken following the dismissal of the action?

The Court agreed that this is the correct test to apply on a motion to set aside a dismissal order for delay but found that the motion judge erred in his application of the test, emphasizing that the application of the test must take into account the balance of interests of the parties and the public interest in the timely resolution of disputes.

With these factors in mind the Court took a different approach the application of the test than had been employed by the motion judge, finding that his reasoning had been overly broad, particularly in his finding that the delay in this case was prejudicial to the respondents. The Court found no evidence of actual prejudice, as the respondents would have been unaware that the action had been dismissed until October 2017, when they served their defense, and would presumably have been investigating the claim in the ordinary course in the interim.

Contrary to the findings of the motion judge, the Court also found, that there was evidence suggesting the appellant’s intention to proceed with the action.

Though there was no adequate explanation for the overall delay, the Court determined that the matter was not abandoned. This, in tandem with the Court’s finding on prejudice, was sufficient to overturn the motion judge’s decision and allow the matter to proceed.

Take Home

In this case, the Court applied a contextual and fact-based approach to the application of the four part test to set aside an order dismissing for delay.   All four parts of the test were considered, although weighted differently. 

This decision highlights the reality that a Court will not simply presume that a defendant has been prejudiced due to the passage of time without evidence of actual prejudice having been suffered. Defendants should also be mindful that the test to set aside an administrative dismissal is not a rigid one and may be applied liberally in favour of a plaintiff where prejudice is not evident and where the intent to prosecute the claim can be demonstrated.

Adam Imtiaz ([email protected]) is a summer student at ZTGH and author of this blog. If you have a question about this decision or a similar file, please contact Adam or Jennifer Griffiths ([email protected])