The plaintiffs brought a motion to set aside a registrar’s order dismissing a medical malpractice action as abandoned under Rule 48.15 of the Rules of Civil Procedure and to extend time for service of the statement of claim.
The action alleged negligent misdiagnosis and treatment resulting in severe brain damage following whole brain radiation administered on the basis of an incorrect MRI interpretation.
Applying the contextual analysis and the Reid factors, the court found the delay was attributable to inadvertence arising during a transition between counsel rather than solicitor negligence.
The defendants failed to demonstrate actual prejudice and presumptive prejudice was minimal given the short interval between the limitation expiry and notice of the claim.
The dismissal order was therefore set aside and the time for service extended.
