Fraser Gow

The applicant was injured in a motor vehicle accident and sought statutory accident benefits.

The respondent denied certain medical benefits and assessment costs on the basis that the applicant's injuries fell within the Minor Injury Guideline (MIG).

The applicant argued that pre-existing conditions, including neck and back pain, ankylosing spondylitis, and chronic pain, prevented maximal medical recovery under the MIG.

The Tribunal found that the applicant's pre-existing conditions were not exacerbated by the accident and did not prevent maximal medical recovery.

The Tribunal concluded that the applicant's injuries were predominantly minor and subject to the $3,500 MIG limit, which had already been exhausted.

The claims for additional benefits and an award for unreasonable delay were dismissed.

The plaintiff brought a motion to set aside an earlier order dismissing the action for delay under the Rules of Civil Procedure.

The court considered whether it had jurisdiction to set aside the order and whether the plaintiff satisfied the criteria for setting aside a dismissal under the Reid v. Dow Corning Corp. and Scaini v. Prochnicki framework.

The court found the plaintiff failed to adequately explain extensive litigation delay, failed to show inadvertence in missing procedural steps, and failed to bring the motion promptly after learning of the dismissal.

The court also found actual prejudice to the defendant due to the passage of time and potential loss of relevant records.

Applying a contextual approach to the Reid/Scaini test, the court concluded the interests of justice did not justify setting aside the dismissal.