An Ontario court has decided that a long-running case against a brokerage firm can go ahead. But first, the plaintiffs in Richardson, et al. v. BMO Nesbitt Burns Inc., et al. must pay a costs order against them from an earlier decision.
In a decision dated August 23, the Ontario Superior Court of Justice has agreed to set aside an order dismissing an action against BMO Nesbitt Burns Inc. that was initiated back in 2006, alleging negligence back in 2004. The allegations have not been proven. In fact, the case was eventually dismissed, the decision notes, after repeated delays by the plaintiffs in bringing the case.
Indeed, the court says that after filing the suit in 2006, the plaintiffs did nothing to move the case along until 2009. There were also repeated delays in scheduling discovery, court-imposed deadlines were missed, and motions were withdrawn, and then revived.
And, while the court acknowledges Nesbitt’s frustration with the lack of progress in the case, it says it is, “giving the plaintiffs one last chance to advance their claims.”
The decision notes that counterbalancing all of the delays is the fact that the plaintiffs have had problems with their legal representation. “One lawyer went off the record for them and two had difficulties with the Law Society that compromised their ability to offer the plaintiffs continued and consistent representation,” it notes. Also, one plaintiff had health difficulties, and they also had to contend with deaths in the family. “The explanation, though far from perfect, is reasonable,” the court says.
Additionally, the plaintiffs were representing themselves when the case was dismissed, and the court says that it’s possible that they did not understand that the case would be thrown out if certain steps were not taken. “For self-represented litigants, there could be some confusion by virtue of the ambiguity,” the court says.
The court also ruled that allowing the suit to continue won’t prejudice the Nesbitt defendants. “While the limitation period has elapsed and while there is no doubt but that, over time, memories fail, there is no evidence before [the court} of actual prejudice,” it says.
Ultimately, the court concluded that allowing the case to go ahead, subject to the plaintiffs paying an earlier costs order against them is “just in the circumstances”. It says that costs of $5,000 were ordered against them, which was due in July 2012, and has not been paid. “The costs order needs to be paid before the plaintiffs will be permitted to advance their claims,” the court says. Once that happens, the dismissal order will be set aside, and the case can proceed.