Peter Esfandiari

The moving party insurer sought an extension of time to file materials for leave to appeal and a stay of a Divisional Court order requiring it to pay $365,257 for home modifications under the Statutory Accident Benefits Schedule.

The responding party, a 92-year-old woman with catastrophic injuries, required the funds to modify her daughter's home for her care.

The Court of Appeal granted the unopposed extension of time but dismissed the stay motion.

Applying the RJR-MacDonald test, the court found the insurer failed to establish irreparable harm and that the balance of convenience strongly favoured the responding party given her advanced age, poor health, and immediate need for the benefits.

The plaintiff brought a motion under Rule 37.14 of the Rules of Civil Procedure to set aside an administrative dismissal order for abandonment and sought leave to amend the statement of claim to add the plaintiff’s insurer as a defendant under uninsured motorist coverage.

The court applied the factors governing relief from administrative dismissal, including the explanation for delay, inadvertence, delay in bringing the motion, and prejudice to the defendants.

Although the motion to set aside was not brought promptly, the court found the delay was not inordinate, the missed deadline resulted from inadvertence, and no actual prejudice was demonstrated.

The court emphasized the preference for resolving disputes on their merits.

The dismissal order was set aside and the plaintiff was granted leave to amend the claim to add the insurer.