Ashley Peacock

The appellants appealed a summary judgment dismissing their action against the respondents.

The motion had been rescheduled from February 1, 2018 to January 31, 2018, but the appellants did not receive notice of the change because they were in an area without internet access.

The Court of Appeal found that the appellants did not receive adequate notice of the hearing date and allowed the appeal, setting aside the summary judgment.

The respondents' motion was to be rescheduled on proper notice to the appellants.

The moving defendants brought a motion to strike an expert report served late by the co-defendant, and to prevent the expert from testifying at the upcoming trial.

The responding party argued the motion should be deferred to the trial judge under Rule 53.03(3).

The court held that while deferring to the trial judge is the general rule, a motion judge can rule in advance in rare cases to prevent prejudice and loss of trial time.

The court struck the report, finding it failed the Mohan criteria for admissibility because it relied on an irrelevant statutory framework (the Occupational Health and Safety Act) and assessed an ordinary standard of care that did not require specialized knowledge.