Mader v. Hunter, (2004) 183 O.A.C. 294 (CA)

• Judge: Borins, Feldman and Gillese, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: February 25, 2004
• Jurisdiction: Ontario
• Citations: (2004), 183 O.A.C. 294 (CA)

Mader v. Hunter (2004), 183 O.A.C. 294 (CA)

MLB headnote and full text

Temp. Cite: [2004] O.A.C. TBEd. MR.007

Helen-Marie Mader (appellant) v. Warren W. Hunter and Motors Insurance Corporation (respondents)

(C39871)

Indexed As: Mader v. Hunter et al.

Ontario Court of Appeal

Borins, Feldman and Gillese, JJ.A.

February 25, 2004.

Summary:

The plaintiff's claim against the defendants was dismissed for failing to fulfil undertakings given on discovery and the "long history" of the case. The plaintiff appealed.

The Ontario Court of Appeal allowed the appeal. The court was reluctant to dismiss a potentially meritorious claim on grounds that did not address the merits. The motions judge erred in exercising her discretion absent evidence of prejudice to the defendants. Absent prejudice, a meritorious claim was usually permitted to proceed on appropriate terms.

Practice - Topic 5362

Dismissal of action - Grounds - General and want of prosecution - Prejudice to defendant - The plaintiff's claim against the defendants was dismissed for failing to fulfil undertakings given on discovery and the "long history" of the case - The Ontario Court of Appeal held that the court was reluctant to dismiss a potentially meritorious claim on grounds that did not address the merits - The motions judge erred in exercising her discretion absent evidence of prejudice to the defendants - Absent prejudice, a meritorious claim was usually permitted to proceed on appropriate terms.

Cases Noticed:

Byers v. Pentex Print Masters Industries Inc. et al. (2003), 167 O.A.C. 159; 62 O.R.(3d) 647 (C.A.), refd to. [para. 4].

Counsel:

David G. Lavkulik and Jennifer Hetherington, for the appellant;

Susannah M. Travers, for the respondent, Warren W. Hunter;

J. Claude Blouin and George Kanellakos, for the respondent, Motors Insurance Corp.

This appeal was heard on February 25, 2004, before Borins, Feldman and Gillese, JJ.A., of the Ontario Court of Appeal.

The following judgment was endorsed on the appeal record on February 25, 2004, and released on March 1, 2004.