Blair Yvette Nitchke

The plaintiff brought a motion to restore two motor vehicle accident actions to the trial list after they were dismissed by the trial judge for failure to comply with trial management orders.

The Court of Appeal had referred the matters back for reconsideration on a more fulsome record.

The Superior Court dismissed the motion and both actions, finding that the plaintiff remained in intentional breach of previous trial management orders, failed to provide new medical evidence, offered no acceptable explanation for the extraordinary delay (over 15 years for the first action), and failed to demonstrate that the defendants would not suffer non-compensable prejudice.

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.

The moving party sought leave to appeal the dismissal of her motion for summary judgment.

The underlying action involved a motor vehicle accident where the moving party owned the vehicle driven by her uninsured daughter.

The moving party sought summary judgment on the basis that she did not consent to her daughter driving the vehicle.

The motions judge dismissed the summary judgment motion, refusing to admit discovery evidence and declining to apply the summary judgment framework.

The Divisional Court granted leave to appeal, finding good reason to doubt the motions judge's evidentiary rulings and concluding it was a matter of general importance to consider whether the motions judge's approach was consistent with the principles in Hryniak v. Mauldin.

Following a jury award for general damages and past income loss arising from a motor vehicle collision, the defendants brought a threshold motion asserting that the plaintiff's injuries did not meet the statutory exception to immunity for non-pecuniary damages.

The court reviewed s. 267.5(5) of the Insurance Act and O. Reg. 461/96, including the requirement that the impairment be permanent, important, and serious.

Although the court accepted that the plaintiff's back pain was permanent and affected an important function given his physically demanding work, it found no substantial interference with his regular employment or most activities of daily living.

The threshold motion was granted and, together with the collateral benefits ruling, the action was dismissed.

Following a jury verdict in a motor vehicle tort action, the court determined the post-verdict deductibility of collateral benefits from the plaintiff's past income loss award.

Applying ss. 267.5(1) and 267.8(1) of the Insurance Act, the court first reduced the gross past income loss award to 80 per cent of net income loss, then deducted all income replacement benefits received during the same relevant period.

The court rejected a weekly or speculative parsing of the jury's lump-sum award and held that the total statutory accident benefits received for that period had to be deducted from the total amount to which the plaintiff was entitled.

As the benefits received exceeded the net recoverable amount, the plaintiff's entitlement for past income loss was reduced to nil.

In a motor vehicle accident action, the plaintiffs brought a pre‑trial motion seeking to admit various medical documents under ss. 35 and 52 of the Evidence Act, including clinical notes and consultation reports from several physicians.

The court considered the distinction between factual medical observations and opinion evidence following the Divisional Court’s decision in Westerhof v. Gee (Estate) and related authorities.

The court held that factual portions of a deceased treating physician’s clinical notes were admissible under the principled exception to the hearsay rule and potentially as business records, but the physician’s diagnoses could not be admitted for their truth absent compliance with Rule 53.03.

Compliance with Rule 53.03 was waived in limited circumstances to allow the diagnosis to explain treatment, subject to a limiting jury instruction.

Reports from other specialists that did not comply with Rule 53.03 were excluded due to prejudice and lack of cross‑examination.

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.

The appellants appealed a summary judgment enforcing minutes of settlement.

They argued the court should imply a term that the respondent would refrain from actively assisting in OMVIC proceedings.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that there was no evidence to support such an implied term, as the respondent could not agree to avoid being subpoenaed or telling the truth.