The plaintiff brought a motion to set aside a registrar's order dismissing his wrongful dismissal action for delay.
The action was dismissed after the plaintiff failed to respond to a status notice.
The plaintiff's counsel argued the delay was due to the plaintiff's diagnosis with a brain tumour and subsequent death, which made obtaining instructions difficult.
The court applied the Reid factors and found that while the medical condition explained some delay, it did not excuse the failure to request a status hearing or the 11-month delay in bringing the motion to set aside.
Furthermore, the plaintiff failed to rebut the presumption of prejudice to the defendant, and actual prejudice was found due to the plaintiff's death and the loss of evidence regarding mitigation.
The motion was dismissed.
