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Solicitor’s negligence does not allow reinstatement of discontinued action

Rafuse v Simms et all 2017 NBQB 171

Cassandra Rafuse was involved in two motor vehicle accidents, one in 2000 and one in 2001.  She commenced actions related to both motor vehicle accidents.

In August 2005, a status hearing was held regarding both actions, and the status hearing judge ordered that both matters had to be set down for trial before February 2006, failing which the actions would be discontinued without further notice to the parties.

The Plaintiff’s solicitor did not advise her of this status hearing and did not provide her with a copy of the order. The Actions were not set down for trial, and were discontinued as a result.

In 2015, the Plaintiff’s solicitor was disbarred. At that time, the Plaintiff obtained a new solicitor, who upon reviewing the files, found that the two actions had been discontinued and advised the Plaintiff.  By that time, the limitation period related to both accidents had elapsed several years before.

The Plaintiff, through her new solicitor, filed a motion to extend the time to set the matter down for trial or alternatively for an order to reinstate her actions.

In her affidavit in support of the motion, the Plaintiff advised the Court that her previous solicitor had continued to represent her after February 2006, telling her that her actions were moving forward and had never told her the action was discontinued.

The solicitors for the Defendants argued against the order sought by the Plaintiff, arguing that there was no evidence that the Plaintiff had diligently pursued the action and that there would be prejudice to the Defendants if the action was reinstated.

Since the discontinuance of these actions, files for the defendant in the first car accident were destroyed by the insurance company. The court identified that this makes it difficult to find witnesses to present documentation which were necessary for assessment of damages.

The Court dismissed the Plaintiff’s motion, finding that the Plaintiff’s solicitor had notice of the discontinuance of the actions, and that the Defendants would be prejudiced if the order were to be granted. The Court also noted that the Plaintiff still has recourse to pursue a claim against her former solicitor, and that she had in fact commenced steps to do so.

You can read Rafuse v Simms et all 2017 NBQB 171, in its entirety here.

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