What is the test in which a motion can be brought without prejudice?
Ontario, Canada
The following excerpt is from Faklan v. Niewiadomski, 2014 ONCA 697 (CanLII):
In brief oral reasons, the motion judge correctly identified the applicable test in Reid v. Dow Corning Corp (2001), 11 CPC (5th) 809 at para. 41, rev’d (2002), 48 CPC (5th) 93. He rejected the hearsay evidence of the appellant’s solicitor as to the reasons for the delay and as to why the motion was not brought promptly. He also found that there was no evidence to establish the absence of prejudice, other than the “bald assertion” of the deponent.
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