Bonnie Clarke

The defendants brought a motion to dismiss the action for delay.

The plaintiff, Alma Cherry, requested an adjournment due to health issues and the volume of materials recently served on her.

The court granted the adjournment, scheduling the motion for December 1, 2025, and directed the defendants not to serve any further materials on Ms. Cherry before the motion.

The court clarified that related proceedings involving Ms. Cherry and Novex Insurance Company would not affect the timing of the present motion.

The defendants, Sudbury Trail Plan Association (STPA) and Shelley Talevi, brought motions seeking leave to bring further motions, an order compelling the plaintiff Gaetan Lamothe to undergo four independent medical assessments, and leave to deliver late expert reports.

The plaintiffs opposed these motions.

The court dismissed all motions, finding that the defendants failed to provide a reasonable explanation for their significant delay in seeking the assessments and filing reports, which occurred almost four years after the plaintiffs' expert reports and after two fixed trial dates had been set.

The court determined that the alleged "substantial or unexpected changes" in the plaintiff's condition were not sufficient to justify the delay and that granting the motions would cause undue prejudice to the plaintiffs by necessitating an adjournment of the lengthy jury trial, leading to lost pre-trial income and statutory deductible indexation.

Following the dismissal of the defendant's motion to set aside a Certificate of Pending Litigation, the successful plaintiffs sought costs of $19,726.56, arguing for substantial indemnity based on an offer to settle.

The court found the offer was arguably not timely under Rule 49 and doubted whether a responding party on a motion is entitled to the same costs consequences as a plaintiff in an action.

Applying principles of proportionality and Rule 57, the court awarded the plaintiffs partial indemnity costs fixed at $10,187.30.