Bruce Hutchison

The appellant appealed an order dismissing his 77-page statement of claim as an abuse of process under Rule 2.1.01, alleging malicious prosecution against his ex-partner and others after criminal harassment charges were withdrawn via a peace bond.

The Court of Appeal upheld the lower court's discretionary decision, finding no misdirection or clear error, and affirmed that the claim and the appellant's communications constituted an abuse of process.

The appeal was dismissed with costs.

The applicant school board sought an order requiring the respondent insurer to defend and indemnify it in an underlying action concerning historical sexual abuse.

Neither party could locate the original insurance policy from the 1979-1980 school year.

The court held that the applicant met its burden of proof using secondary evidence, including an excess policy schedule and standard policy wordings from the era, to establish the existence and terms of the missing policy.

The application was granted.

The plaintiff in a personal injury claim moved for partial summary judgment to strike the defendants' Limitations Act defence.

The plaintiff argued she did not discover her "threshold injuries" until almost three years after the motor vehicle accident, commencing her claim within a year of that discovery.

The court dismissed the motion, finding genuine issues for trial regarding the discoverability of the claim, particularly concerning the "permanent serious impairment" threshold under the Insurance Act.

The judge declined to exercise enhanced fact-finding powers under Rule 20.04(2.1) due to the risk of duplicative proceedings, inconsistent findings of fact, incomplete medical evidence, and issues with the plaintiff's cross-examination affecting credibility assessment.

The defendant retailer appealed a master's order refusing further inspection and testing of ski bindings that were alleged to have malfunctioned and caused a skiing accident.

The master had concluded that the prejudicial effect of destructive testing outweighed its probative value and that direct expert evidence was required to justify the testing.

The court held that the master erred in law by requiring direct expert evidence and by rejecting admissible hearsay evidence permitted on motions under the Rules of Civil Procedure.

The master also misapprehended the evidentiary record when assessing the qualifications of the proposed technician and the technical assertions contained in the affidavits.

Applying the correct Rule 32.01 test, the court found a reasonable possibility that further testing could reveal useful evidence and that its probative value outweighed the potential prejudice.

The appeal was allowed and testing of the binding was permitted.