Daniel J. Rosenkrantz

The plaintiffs appealed a Divisional Court order compelling the plaintiff to attend two defence medical examinations.

The defendant had previously brought a motion to adjourn the trial to conduct defence medicals, which was dismissed.

The defendant subsequently brought a second motion to compel attendance at rescheduled medicals prior to trial, which was also dismissed by the motion judge but allowed on appeal to the Divisional Court.

The Court of Appeal allowed the plaintiffs' appeal, holding that the second motion was substantially the same as the first, and the defendant was precluded by issue estoppel from relitigating the matter.

The appellant appealed an order finding that the underlying action had not been settled.

The Court of Appeal first determined it had jurisdiction, as the order finally disposed of the fundamental issue of whether a settlement existed and the action continued.

On the merits, the Court upheld the motions judge's finding that there was no agreement to settle, noting that the original exchange of emails was ambiguous and subsequent conduct did not resolve the ambiguity.

The appeal was dismissed with costs.