Joyce Tam

The plaintiff moved to set aside a registrar’s order dismissing an action as abandoned, extend time for service of the statement of claim, and amend the claim to include a claim for accident benefits.

The court applied the contextual approach outlined by the Court of Appeal regarding Rule 37.14 motions and considered factors such as explanation for delay, promptness in bringing the motion, and prejudice to the defendants.

The court found the delay in serving the claim was minimal and attributable to the plaintiff being unrepresented while attempting to retain counsel.

The plaintiff did not receive the dismissal notice due to a court addressing error and moved promptly once aware of the dismissal.

As no actual prejudice to the defendants was demonstrated, the registrar’s dismissal order was set aside and the amendment permitted.

An insurer sought a determination whether an insured’s injury constituted an “accident” within the meaning of s. 3(1) of the Statutory Accident Benefits Schedule under the Insurance Act.

The insured tripped over a curb in his residential parking garage after parking his vehicle and exiting it to wash it.

Applying the two-part test from appellate jurisprudence, the court considered whether the incident arose from the use or operation of an automobile and whether that use directly caused the impairment.

The court held that the vehicle was not being used or operated at the time of the incident and that the injury resulted from an intervening act unrelated to the vehicle.

Accordingly, the incident did not constitute an “accident” under the Schedule and the insured was not entitled to statutory accident benefits.