An Ontario court has given an investor an extension to appeal the dismissal of her lawsuit against a couple of brokerage firms and an insurance company, after her lawyers failed to advance her case, and her action was dismissed.
Last month, Ontario’s Superior Court of Justice granted the motion of an aggrieved investor, Margaret Kerr of allowing her more time to appeal the dismissal of a case against CIBC World Markets Inc., Merrill Lynch Canada Inc., affiliated companies, and Transamerica Life Insurance Co. of Canada.
Kerr commenced the action in 2004, alleging breach of contract and negligence regarding investment advice she received in 2000-2001. None of the allegations have been proven, and the case has not been heard.
Discoveries were completed, and the case was set for trial in 2006. However, the decision indicates that Kerr’s lawyers at the time did not return the trial scheduling forms, and as a result, it was struck from the trial list. Kerr fired that lawyer and hired a new one, who failed to move to restore the action to the trial list and failed to advise the plaintiff when an order was made dismissing the action.
Now, the divisional court has granted a motion from Kerr’s third counsel, seeking to extend the time to file an appeal of the dismissal. It ruled that the delay in commencing the appeal, and the subsequent delay in bringing the motion to extend the time to appeal, will not prejudice the firms, who are the defendants in this case, to the extent that the appeal should not be heard.
“It will be at the appeal that the question of who bears the weight of the delay in processing the action will be determined,” it notes.