Adam Moras

The defendant, State Farm, brought a motion for a neuropsychological examination of the plaintiff, Tie Cindy Li, by Dr. Mark Dowhaniuk.

The motion was brought under ss. 40(1) and 42(1) of the Statutory Accident Benefits Schedule (SABS) and, alternatively, Rule 33 of the Rules of Civil Procedure and s. 105 of the Courts of Justice Act.

The plaintiff claimed catastrophic impairment due to a motor vehicle accident, alleging cognitive impairment, among other issues.

The court found the examination necessary to determine the plaintiff's entitlement to benefits and whether the impairment was catastrophic, preferring the defendant's experts' opinions over the plaintiff's.

The motion was granted, and costs were awarded to the defendant.

The Minister of Finance, representing the defendant Abdirissaq Nor, appealed a Master's order that dismissed their motion to strike a jury notice.

The plaintiff, Michael Leadbetter, had served the jury notice after the close of pleadings without obtaining leave, contrary to Rule 47.01 of the Rules of Civil Procedure.

The Master, in his decision, effectively granted leave by declining to strike the jury notice, relying on Rules 2.01 and 1.04.

The Superior Court, on appeal, found that the Master erred in law by converting the motion to strike into a de facto motion for leave.

The court clarified that Rules 2.01 and 2.03 provide curative or dispensing powers for non-compliance, but do not grant the authority to provide judicial permission (leave) for a step that requires it.

As no motion for leave was brought by the plaintiff, the Master lacked the power to make the order.

The appeal was allowed, and the Master's order was set aside.

The defendants sought an order for a further defence medical assessment of the plaintiff, Saokeng Mork, by an orthopaedic surgeon and chronic pain specialist, Dr. Hugh Cameron.

The court applied the factors from Bonello v. Taylor, finding insufficient evidence to warrant the examination.

Specifically, the plaintiff was not relying on an orthopaedic expert, and Dr. Cameron's expertise in chronic pain was not sufficiently demonstrated by his resume for the purpose of ordering the examination.

The motion was dismissed.

The defendant brought a motion to compel the plaintiff, Zhen Ling Yan, to attend defence psychological, neurological, and physiatry assessments in a motor vehicle accident action.

The plaintiffs argued the defendant required leave under Rule 48.04(1) as the action was set down for trial.

The Master found leave was not required, distinguishing between setting an action down for trial and consenting to it being placed on a trial list under Rule 48.06(1).

The Master further found the assessments necessary for trial fairness, given the plaintiff's claims of serious injuries and expert reports.

The motion was granted, and the defendant was awarded partial indemnity costs.