David Alexander Fenicky

The plaintiff moved for a contempt finding against RBC Life Insurance Company and Anna Watroba for alleged non-compliance with a prior order to produce the complete RBC Claims Manual, also seeking disclosure of officers' names and striking of the defence.

The court found the original order ambiguous regarding the scope of "complete manual" beyond the 67 headings initially referenced in evidence.

As contempt requires proof beyond a reasonable doubt of a clear, unequivocal order and intentional breach, the ambiguity precluded such a finding.

The court dismissed all of the plaintiff's requests, noting the underlying issue was inaccurate evidence provided by the defendants in the prior motion, not a clear breach of the order.

No costs were awarded due to the defendants' role in creating the problem through inaccurate evidence.

The defendants brought a motion under Rule 33.02(1) of the Rules of Civil Procedure to determine the location of a defence medical examination of the plaintiff.

The plaintiff opposed travelling from Toronto to Hamilton due to discomfort with unfamiliar surroundings and the need to care for her adult daughter with disabilities who required constant supervision and medication.

The court held that defendants have a prima facie right to select the examining physician and that the modest additional travel time did not justify overriding that right.

Concerns regarding the plaintiff’s daughter were addressed by requiring the defendants to provide transportation and permitting the daughter to remain in the examination room.

The motion was granted with conditions and costs awarded to the defendants.

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.