What is the test for setting aside a registrar’s order dismissing a claim under Rule 77.08?

Ontario, Canada


The following excerpt is from Micallef v. Dodig, 2009 CanLII 72091 (ON SCDC):

In this case, as I have already noted, the Master correctly stated, in accordance with Scaini v. Prochnicki, that a court asked to set aside a registrar’s order dismissing a claim under Rule 77.08 must consider and weigh all relevant factors to determine the order that is just in the circumstances of the particular case, that the analysis must be contextual to permit the court to make an order that is just, and that among the factors to be considered are: an explanation of the litigation delay; inadvertence in missing the deadline; whether the motion was brought promptly; and whether there was prejudice to the defendant. I am of the view that although the Master addressed these factors with care, his failure to address the ultimate question of what order would do justice in all of the circumstances discloses a palpable and overriding error in the exercise of his discretion.

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