Brian J. Smith

The court denied the defendants' motion to adjourn a scheduled trial pending the outcome of a Workplace Safety and Insurance Appeals Tribunal (WSIAT) application.

The court found that the defendants delayed bringing the application and that the interests of justice, including the plaintiff's need for timely resolution and access to treatment, outweighed the defendants' arguments.

The court ordered the trial to proceed as scheduled and awarded costs to the plaintiff.

The defendant, Diane Marie Daniher, brought a motion seeking leave to compel the plaintiff, Ryan Nelson, to attend an independent neuropsychological examination.

The motion was brought after the action had been placed on a trial list, requiring leave under Rule 48.04(1).

The court found that a recently served neuropsychological report by the plaintiff's expert, Dr. Cancelliere, presented an unexpected and substantial change in evidence regarding the severity and etiology of the plaintiff's traumatic brain injury, differing from a previous expert's opinion.

The court granted leave and ordered the examination, concluding that the prejudice to the defendant in proceeding to trial without an opportunity to respond to the new expert evidence outweighed the prejudice to the plaintiff from an inevitable trial adjournment.

The appellant insurance company appealed a summary judgment order that found the respondents (an adult son, his wife, and their daughter) were covered under the homeowner's policy of the named insured (their mother/mother-in-law) as relatives "living in the same household." The named insured owned a house that served as her primary residence until she entered a nursing home, after which the respondents used it as a cottage.

The Court of Appeal allowed the appeal, holding that "household" in insurance law refers to a type of community requiring intimacy, unity, and permanence, not merely physical residence.

The respondents maintained separate lives in the city and did not share a common life with the named insured meeting these requirements.

Appeal of summary judgment dismissal in a negligence action arising from a fatal motor vehicle accident.

The plaintiff's estate and family sued social hosts for damages, alleging the hosts owed a duty of care when the intoxicated guest drove home and subsequently drove his children and their babysitter, resulting in a fatal collision.

The motion judge dismissed the claims, finding no duty of care existed and alternatively that any duty ended when the guest arrived home safely.

The Court of Appeal allowed the appeal, finding genuine issues of fact regarding foreseeability and proximity that required trial, and rejecting the proposition that a social host's duty of care automatically expires upon an intoxicated guest's safe arrival home.

The plaintiff commenced an action arising from a 2006 motor vehicle accident but failed to serve the Statement of Claim within the required time.

The defendant argued the action was deemed dismissed under the revoked Rule 48.15(6) because no step was taken between 2010 and 2012.

The court held that an unsuccessful attempt to serve the claim in 2011 constituted a 'step' in the proceeding, preventing the deemed dismissal.

Alternatively, the court exercised its discretion to order that the rule did not apply.

Finding no prejudice to the defendant, the court granted the plaintiff's motion to extend the time for service and validated the late service.