Andrew Kerr

During a jury trial, the plaintiff brought a motion under Rule 52.10 of the Rules of Civil Procedure to allow the jury to determine if past and future care costs were warranted, despite having called no evidence on these issues.

The plaintiff proposed that if the jury found such costs warranted, the quantum could be determined later by a judge.

The court dismissed the motion, finding that the plaintiff failed to exercise reasonable diligence in obtaining the necessary expert evidence before trial.

The court also held that bifurcating the issue would improperly remove the determination of the extent and quantum of future care costs from the jury.

The plaintiff brought a motion for leave to file an income loss report served less than 90 days before trial, contrary to Rule 53.03 of the Rules of Civil Procedure.

The defendant opposed the motion, arguing that the plaintiff had ample time to prepare the report over the 8-year history of the action.

The court held that 'undue delay' under Rule 53.08 refers to delay in the conduct of the trial, not the time taken to bring the matter to trial.

Since the defendant did not request an adjournment and there was no prejudice, the court granted the plaintiff leave to file the report.

The defendants sought costs thrown away following an adjournment of a scheduled trial.

The court noted that the adjournment resulted from the plaintiff’s lack of preparation and disclosure, and criticized the plaintiff’s counsel for making statements about important facts that were later retracted as false.

The plaintiff’s counsel also failed to provide written submissions on costs despite being given a deadline.

The court awarded the defendants costs thrown away on a full indemnity basis for the futile attendance.