Brian Murphy

The appellants appealed a case conference endorsement and order of a master concerning discovery scheduling and responsibility for costs after examinations for discovery were cancelled due to hazardous winter weather conditions.

The appellants argued that a discovery plan under Rule 29.1 of the Rules of Civil Procedure superseded the timetable, that sanctions under Rule 34.15 applied to counsel’s non‑attendance, and that the master failed to properly consider weather evidence.

The court held that no valid written discovery plan existed and that the master’s timetable governed the order of examinations.

Rule 34.15 applies only to the conduct of the person being examined, not to counsel conducting the examination.

Finding no error of law, misapprehension of evidence, or improper exercise of discretion, the court dismissed the appeal and affirmed the master’s conclusions.

The insurer brought a motion to compel the applicant to produce certain documents and for third-party production orders under Rule 67 of the Dispute Resolution Practice Code.

The insurer also requested relief, including dismissal or a stay of the arbitration, due to the applicant's refusal to attend insurer examinations.

The arbitrator declined to address the non-attendance issue, finding it was not properly before her on a productions motion and should be determined by the hearing arbitrator.

The arbitrator ordered the applicant to produce employment and income records, ordered the insurer to produce its adjusting file, and granted third-party production orders for clinical, employment, and collateral benefits files.

The arbitrator also ordered counsel to personally bear the costs of their unnecessary correspondence.

The insurer brought a motion to compel the applicant to produce certain documents and for third-party production orders, as well as relief for the applicant's failure to attend Insurer Examinations (IEs).

The arbitrator ordered the production of various relevant documents, including medical and employment records, and initiated the process for third-party production orders.

However, the arbitrator declined to address the applicant's non-attendance at IEs, deferring that issue to the hearing arbitrator to ensure procedural fairness.

The arbitrator also ordered both counsel to personally bear their own costs for unnecessary correspondence.

The insurer brought a motion seeking an order that the applicant attend several Insurer Examinations (IEs) to determine his ongoing entitlement to income replacement benefits (IRBs) more than 104 weeks after the accident.

The applicant argued the request was delayed and intended to bolster the insurer's case for arbitration.

The arbitrator found that the IEs were reasonably required, noting that the insurer acted promptly after receiving late medical reports from the applicant supporting his post-104 claim.

The arbitrator also found that the applicant was not precluded from mediating his disputes because the insurer's notices for the IEs were deficient in failing to list the assessors' qualifications.

The applicant was injured in a motor vehicle accident and sought payment for a future care cost analysis.

The insurer denied the claim, arguing it was not reasonably required and pertained to future needs.

The arbitrator found that the insurer failed to refer the disputed assessment to a Designated Assessment Centre (DAC) as required by the Statutory Accident Benefits Schedule.

Consequently, the insurer was deemed to have accepted the assessment as reasonably required and was ordered to pay the cost of the report.

The appellant was involved in a motor vehicle accident before the Limitations Act, 2002 came into force, but was sued by the respondents after it came into force.

The appellant sought to add counterclaims for contribution and indemnity against one of the respondents and two new parties.

The motion judge dismissed the request, finding the two-year limitation period under the new Act had expired.

On appeal, the appellant argued the transition provisions of the new Act applied because he discovered his claims on the date of the accident.

The Court of Appeal dismissed the appeal, holding that a claim for contribution and indemnity is based on the failure of concurrent tortfeasors to pay their fair share, which did not occur until after the new Act came into force.

Therefore, the transition provisions did not apply and the new Act's limitation periods governed.

The appellant appealed a jury verdict arising from a motor vehicle accident, arguing the verdict was unreasonable and that the respondent's counsel made a prejudicial jury address.

The Court of Appeal held that it was open to the jury to conclude the respondent steered into the oncoming lane to avoid an unidentified vehicle.

The court also found that a factual error in the respondent's jury address did not prejudice the appellant.

The appeal was dismissed with costs.

The appellants appealed a trial judgment dismissing their claim against the Town of Parry Sound.

The appellants argued the Town had a duty to build a fence to prevent access to railway tracks.

The Court of Appeal dismissed the appeal, agreeing with the trial judge that the Town had no duty to build a fence preventing access from lands owned by the School Board.

Furthermore, the trial judge's finding that the proposed fence would not have prevented access was entitled to deference.

The appeal was dismissed with costs of $12,000 awarded to the respondent.