Dimple Verma

The plaintiffs brought a motion for leave under Rule 39.02(2) to rely on a late expert engineering report in response to a pending summary judgment motion brought by the defendant property owners.

The defendants opposed the admission of the report, arguing it was produced after cross-examinations were completed and years after the incident.

The court granted leave, finding the report relevant, responsive to issues raised in cross-examination, and that its admission would not cause non-compensable prejudice to the defendants.

The plaintiffs were ordered to pay $5,000 in costs on a set-off basis for costs thrown away.

The defendants brought a statutory “threshold motion” under s. 267.5 of the Insurance Act during a jury trial arising from a motor vehicle accident.

The issue was whether the plaintiff had sustained a permanent serious impairment of an important physical, mental, or psychological function sufficient to overcome the statutory bar to non‑pecuniary damages under Ontario’s auto insurance regime (Regulation 381/03, Bill 198).

The court assessed conflicting medical evidence regarding alleged chronic pain, spinal injury, and psychological impairment.

The court found the plaintiff lacked credibility, failed to comply with treatment recommendations, and that surveillance evidence undermined his reported limitations.

Preferring the defence orthopedic expert’s opinion that no objective pathology explained the complaints, the court held the plaintiff failed to meet the statutory threshold.