The plaintiff brought a motion seeking an order to conduct non-destructive testing of a Toronto Transit Commission (TTC) subway train's door function and safety features following a claimed accident.
The court granted leave for the motion despite a trial record being served, as there was no prejudice to the defendant.
The court also addressed a breach of the deemed undertaking rule (Rule 30.01.01) by the plaintiff's counsel, which was acknowledged and resolved without further remedy.
However, the primary request for inspection and testing under Rule 32.01 was dismissed.
The court found the proposed testing was not "necessary" because the plaintiff's expert already demonstrated a good understanding of the subway door system, had not fully reviewed all available documentation, and the request itself was vague, evolving, and lacked specificity regarding methodology and expected probative value.
The court also noted the problematic nature of testing an "exemplar" car given the passage of time and lack of evidence that it would operate identically to the incident car.
