Chad Townsend

The plaintiff brought a motion under Rule 48.11(b) of the Rules of Civil Procedure to restore an action to the trial list after it had been struck for failure to submit a trial certification form.

The court applied the test governing restoration following administrative dismissal for delay, including whether the delay was intentional, whether it was inordinate and inexcusable, and whether the defendants suffered prejudice.

Although the delay of approximately 31 months was found to be inordinate and not reasonably explained, the plaintiff successfully rebutted the presumption of prejudice and the defendants failed to establish actual prejudice affecting the fairness of a trial.

The court held that the absence of certain radiological studies did not demonstrate a substantial risk that a fair trial was no longer possible.

The action was therefore restored to the trial list, but no costs were awarded.

The plaintiff brought a motion under Rule 48.11(b) of the Rules of Civil Procedure for leave to restore a personal injury action to the trial list after it had been struck for failing to obtain pre‑trial and trial dates.

The court applied the four‑part test governing delay, including whether the delay was intentional or contumelious, whether it was inordinate and inexcusable, whether the presumption of prejudice was rebutted, and whether actual prejudice was demonstrated.

The court found a delay of two years and eight months in seeking pre‑trial and trial dates and concluded the delay was deliberate or, at minimum, inordinate and unexplained.

The plaintiff failed to provide evidence rebutting the presumption of prejudice arising from the delay.

The motion to restore the action to the trial list was therefore refused, although a related amendment correcting a misnomer was permitted.

The plaintiff moved to amend her statement of claim to add a claim for unidentified motorist coverage against the defendant insurer.

However, the plaintiff had previously brought a motion for the same relief in 2005 and delivered a notice of abandonment.

The court held that an abandoned motion cannot be revived absent inadvertence, mistake, misapprehension, or compelling special circumstances.

Finding no such circumstances, the court dismissed the motion to withdraw the notice of abandonment, thereby dismissing the motion to amend the statement of claim.

The applicant's representative brought a motion to be removed from the record and to seal the motion record, arguing that the record contained information protected by solicitor-client privilege.

The representative had not served the motion record on the insurer.

The arbitrator ordered the representative to serve the motion record on the insurer, finding nothing within it that could not reasonably be disclosed.

The motion to be removed from the record and to seal the record was adjourned to be heard orally by the preliminary issue hearing arbitrator.

The insurer brought a motion for an order compelling the applicant to attend Insurer's Examinations with a psychiatrist, oncologist, and physiatrist under section 42 of the Statutory Accident Benefits Schedule.

The arbitrator dismissed the motion, finding no jurisdiction to order an insured to attend an examination.

Furthermore, the arbitrator held that the insurer's notice failed to provide sufficient particulars about the nature of the proposed examinations, depriving the applicant of the ability to give informed consent.

The insurer brought a preliminary motion in an arbitration regarding catastrophic impairment benefits.

The insurer sought to restrict the scope of the arbitration to the physical impairments considered by the Designated Assessment Centre (DAC), or alternatively, to refer the matter back to the DAC or order further section 42 insurer examinations to address newly raised psychological issues.

The arbitrator dismissed the motion, holding that the arbitration is a hearing de novo that must consider all elements of catastrophic impairment.

The arbitrator declined to refer the matter back to the DAC, finding it functus and improperly constituted, and refused to order further section 42 examinations due to the insurer's delay and lack of evidentiary foundation.