Adam Bartosz Kuciej

The plaintiff sought leave, after the action had been set down for trial, to bring motions to disqualify a defence medical expert for alleged conflict and to remove defence counsel for alleged improper disclosure.

Applying the post-set-down leave test, the court held there was no substantial or unexpected change in circumstances and no manifest injustice warranting further interlocutory motions.

The court found the moving party knew or ought to have known of the alleged conflict before consenting to the examination, and did not raise the issue in a timely manner.

The court further held the high threshold for removal of counsel was not met on the evidentiary record.

Leave to bring both proposed motions was denied.

The court considered a motion by the defendant to compel the plaintiff to attend two defence medicals and to permit late service of expert reports in a motor vehicle accident case.

The court found the defendant's explanation for delay unreasonable and dismissed the motion, except for allowing late service of a neurology report, as the plaintiff did not oppose that part.

The court emphasized the importance of timely expert report exchange and the consequences of litigation strategy that delays compliance with the rules.

This is an appeal from the dismissal of a summary judgment motion.

The appellant, an insurer, sought to dismiss a long-term disability claim as statute-barred under the Limitations Act, 2002.

The motion judge found the claim was not discovered until the insurer unequivocally denied it.

The Court of Appeal reversed this, holding that a clear and unequivocal denial is not required to trigger the limitation period.

The court found the claim was statute-barred as the plaintiff ought to have known of the loss and the appropriateness of litigation much earlier, specifically when benefits were due, or when the insurer closed the file, or when lawyers received notice of the closure.

The appeal was allowed, and the action dismissed.

The plaintiff moved to strike a Rule 39.03 summons to witness issued by the defendant Western Life Assurance Company, seeking to examine the plaintiff's legal assistant, who is also his sister.

The defendant sought to examine the legal assistant regarding the plaintiff's knowledge of his disability claim obligations and the limitation period.

The court found that communications with the legal assistant were protected by solicitor-client privilege and that the defendant failed to demonstrate the "high materiality and necessity" required to compel her testimony, nor was there a clear waiver of privilege.

The motion to strike the summons was granted.

The plaintiffs sought leave to amend their Statement of Claim to add their own automobile insurer, TD Insurance, as a defendant under the OPCF 44R Family Protection Endorsement, following an accident with an uninsured motorist.

The motion considered the application of the Limitations Act, 2002, to claims for indemnification against an insurer, specifically when the limitation period begins and if discoverability and due diligence apply.

The court granted leave to amend, finding triable issues regarding discoverability and due diligence, and that no non-compensable prejudice would result to TD Insurance, which had been involved in the plaintiffs' accident benefits claims since 2014.