Brian A. Pickard

The plaintiffs brought a motion to amend their statement of claim in a medical malpractice action to replace 'Dr. John/Jane Doe' with two specific physicians, after the expiry of the limitation period.

The proposed defendants opposed the motion, arguing it was an attempt to add new parties out of time.

The court found that the litigation finger was clearly pointed at the proposed defendants, establishing a misnomer.

The court declined to exercise its residual discretion to refuse the amendment, noting the proposed defendants had early notice of the claim and suffered no non-compensable prejudice.

The motion was granted.

The plaintiff brought a motion for summary judgment seeking punitive damages against his former lawyer and paralegal, alleging they fraudulently misrepresented the settlement amounts of his tort and accident benefits claims to pocket the difference.

The court found that while the evidence against the paralegal was compelling and highly suspicious, the conflicting evidence regarding the lawyer's involvement and the requirement to prove actual loss for civil fraud necessitated a full trial.

The motion for summary judgment was dismissed.

The plaintiff brought a motion to set aside a registrar’s order dismissing a medical malpractice action as abandoned under Rule 48.15(1) of the Rules of Civil Procedure and to extend the time for service of the originating process.

The court applied the Reid factors governing relief from registrar dismissal orders, considering the explanation for delay, inadvertence, promptness in bringing the motion, and prejudice to the defendant.

The delay arose primarily from severe personal tragedies affecting the plaintiff’s former counsel, which rendered him unable to practice and resulted in the plaintiff being unaware that her action had not been prosecuted.

The court found that the plaintiff acted promptly once aware of the issue and that the defendant had not demonstrated actual prejudice from the delay.

The registrar’s dismissal order was therefore set aside and late service of the notice of action and statement of claim was validated.