Blair Yvette Nitchke

The appellant appealed the dismissal of her actions by the trial judge.

The Court of Appeal found that the trial judge did not have a complete picture of the facts and circumstances when dismissing the case.

The appellant, a self-represented litigant with language issues, was non-compliant with a trial management order at the time set for trial, and her main liability witness (her brother) had been recently injured and hospitalized in Ecuador.

The Court of Appeal allowed the appeals, set aside the trial judge's orders, and directed the appellant to bring a motion within 60 days before a Superior Court judge to demonstrate why the matters should proceed, on a more fulsome record including medical evidence.

The plaintiff was injured in a multi-car collision.

The defendants admitted liability, and the case proceeded to a jury for damages.

This ruling addresses a threshold motion brought by the plaintiff to determine if her claim for general damages is barred by s. 267.5(5) of the Insurance Act, which requires a "permanent serious impairment of an important physical, mental or psychological function." The court applied the three-part test from Meyer v. Bright and found that the plaintiff's impairments to her ability to work and attend school were permanent, important, and serious, thus meeting the statutory threshold.

Following a jury verdict awarding damages for general damages and future care expenses arising from a motor vehicle accident, the trial judge had previously dismissed the claims after finding the plaintiff failed to meet the statutory threshold for non-pecuniary damages.

The plaintiff brought a motion seeking judgment for caregiver expenses, arguing they were included within the jury’s award for “future care expenses” and were not subject to the threshold.

The court held that it lacked jurisdiction to interpret or speculate about the jury’s intentions in rendering the award.

Because the jury’s verdict was clear and the questions posed were agreed to by counsel, the court could not recharacterize any portion of the award as caregiver expenses.

The motion was dismissed.

Following a jury verdict in a motor vehicle accident trial awarding modest general damages and future care costs, the defendants brought a post-verdict threshold motion under s. 267.5(5) of the Insurance Act seeking a declaration that the plaintiff’s injuries did not meet the statutory threshold for recovery of non-pecuniary damages and related health care expenses.

The court reviewed the medical evidence concerning the plaintiff’s pre-existing shoulder injury from an earlier accident and alleged exacerbation from the subject accident.

The judge found that the plaintiff already had a permanent disability prior to the second accident and that the evidence did not establish a new permanent serious impairment of an important physical, mental, or psychological function.

The court also found insufficient evidence linking the plaintiff’s later low back complaints to the accident.

Considering the medical evidence and the modest jury awards, the court concluded that the statutory threshold was not met.

Following a jury trial on damages arising from a motor vehicle accident, the defendant brought a threshold motion under s. 267.5(5) of the Insurance Act arguing that the plaintiff had not established a permanent serious impairment of an important physical, mental, or psychological function.

The jury awarded $10,000 in general damages but no other damages, which would result in no recovery after the statutory deductible.

The court independently assessed the threshold issue and concluded that the plaintiff suffered chronic pain, fibromyalgia, and major depression causally related to the accident, resulting in permanent impairments affecting employment capacity and daily functioning.

The court rejected defence expert evidence alleging malingering and preferred the evidence of treating physicians and other experts.

The statutory threshold was therefore met and the defendant’s motion was dismissed.