1.         The appellant, the City of Hamilton, appeals the decision of Jones J, who refused to set aside a registrar’s order dismissing its action for delay. The City sued the defendant architects and general contractor for  negligent design and construction of a new hockey arena. The arena opened in 1997. Soon after numerous cracks appeared in the ice pad.

2.         The City started its action within the limitation period, and pleadings have been completed. However, the City delayed arranging discoveries until it obtained expert reports substantiating its claim. A status hearing was then scheduled, and unfortunately the City’s lawyer forgot to diarize the date, and did not appear. On March 10, 2008, the registrar dismissed the action.

3.         Once it became aware of the order, the City moved promptly to set it aside. Still, the motion judge refused to grant the City relief. The City acknowledges that the motion judge’s order is discretionary, but submits that he made two errors justifying this Court’s intervention.

4.         First, he erred by finding that the City had not adequately explained its delay.  In, fact all parties had agreed to postpone discoveries pending exchange of expert reports. Second, the motion judge erred by finding that the defendants were prejudiced by the delay. This case turns on documentary evidence and export reports, and thus the unavailability of lay witnesses on which the motion judge relied is irrelevant. The City asks that his order be set aside and its action reinstated.