Motions of Abandoned Applications

A New Direction on Setting Aside Motions of Abandoned Applications – Rule 38.08

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In Eldridge vs. Buchak, a recent case argued by M. Jasmine Sweatman of Sweatman Law, an unprecedented attempt to revive an application deemed abandoned, the court has confirmed its low tolerance for delayed proceedings and the importance of being a competent lawyer.

What Happened?

The applicant brought his Application seeking to contest his grandmother’s will just three days before the two-year limitation period expired. This application was prompted by being given notice of his brother’s settlement of his contested will application.

After numerous adjournments over the course of a year of his application, the applicant’s lawyer failed to appear on a return date, and his application was deemed abandoned pursuant to Rule 38.08 of the Rules of Civil Procedure.

The applicant therefore brought a motion to set aside the “dismissal” of his application, claiming it was administratively dismissed due to inadvertence.


The Decision

On January 31, 2018 the court determined this was in fact a deemed abandonment, not an administrative dismissal and, as endorsed by the Ontario Court of Appeal in Scainin v. Prochniki [], agreed the test to be applied in such cases were the four factors set out in Reid v. Dow Corning Corp. The court examined the application of the Reid test which puts the onus on the applicant to explain the litigation delay, the inadvertence (and if it was inadvertence or a deliberate choice) in missing the deadline, whether the motion was brought promptly, and whether there is prejudice to the defendant.

Discouraging Delay in Judicial Proceedings

In scrutinizing the applicant’s explanation for the delay, the court emphasized the policy reasons to discourage delay and relied on Marché d’Alimentation Denis Thériault Ltée v. Giant Tiger Stores Ltd []. The applicant tried to rationalise the delay by his attempts to consolidate both applications, however the court pointed out that he and his counsel should have known they could not be consolidated his brother’s application had already been converted into an action.

The applicant had also failed to satisfy the court that steps were taken to advance the litigation, as multiple adjournments had been given and he and his counsel knew the court date had not been confirmed and the evidence showed that the applicant had made a deliberate choice to not appear and it was not inadvertence.

With regards to the promptness in bringing the motion, the court found the applicant waited almost 12 months to bring the motion and he attempted to defend this factor by stating his articling student had appeared and adjourned the matter sine die. The court found this to be “simply untrue and would appear to have been a deliberate misrepresentation”.


Finally, on the issue of prejudice the court found on the case law that where the limitation period has expired, this gives rise to a presumed prejudice in terms of the decision Habib v. Mucaj []. The court found the applicant’s lawyer failed to rebut the presumption of prejudice although not necessarily that there had been actual prejudice suffered by the respondent as well. The court also concluded that the prejudice could not be compensated for by costs.

The motion was dismissed. On this issue of costs, the court ordered the applicant to pay $20,000 for both the application and motion.

Lessons Learned

All in all, this case now provides direction on how the court will look at “setting aside” motions under Rule 38.08, where to date there is little case law. Although not expected to be a common type of motion, the direction provided by this decision is welcomed.

If you have questions about this decision, contesting a will, or about estate litigation more broadly, contact Sweatman Law. We represent executors and beneficiaries in all types of estate litigation. We will work diligently to protect your interests, thoroughly explain your legal options and provide you with knowledgeable advice. To schedule an appointment with one of our lawyers,  contact Sweatman Law Firm.