Donna Lynn Turnbull

The defendants brought a motion for leave to appeal an order requiring them to pay the costs of an independent medical examination that they failed to attend.

The Divisional Court granted leave to appeal on the specific issues of whether the Superior Court has jurisdiction to order such costs in the absence of a court order for the examination, and if so, whether such an order should be made in this case.

Costs of the leave motion were fixed at $5,000 and reserved to the panel hearing the appeal.

The defendant estate brought a motion to limit the plaintiff to calling three expert witnesses at the upcoming personal injury trial, arguing there was considerable duplication among the proposed five experts.

The court reviewed the proposed experts and found that the functional ability assessment by one expert duplicated the range of motion testing in the in-home assessment by another.

The court permitted the plaintiff to call four experts (an orthopaedic surgeon, a future care costs evaluator, an in-home assessor, and a vocational evaluator) but excluded the functional ability expert.

The court also raised concerns about the admissibility of proposed psychiatric evidence regarding a defendant's mental capacity under the Mohan framework and requested written submissions before ruling on that issue.

The plaintiffs' claim for personal injuries, stemming from a 2003 motor vehicle accident, was dismissed by the Superior Court of Justice.

The action, commenced in 2007, had a long history of delays, including the plaintiffs' repeated failure to attend court conferences, non-compliance with court orders, and requests for adjournments of peremptory trial dates without sufficient medical evidence.

Despite being granted numerous indulgences and warnings, the plaintiffs failed to proceed with the trial on the final peremptory date.

The court emphasized the need to control its procedure and ensure fairness to all litigants, noting that access to justice is not without limits and cannot be abused by disregarding court rulings.

The defendant estate brought a motion for summary judgment in a slip and fall action initiated by the deceased's personal care worker.

The plaintiff slipped on an icy driveway while caring for the deceased.

The defendant argued that the deceased lacked the mental capacity to be an 'occupier' under the Occupiers' Liability Act, that the plaintiff herself was the occupier, that any duty was fulfilled by hiring contractors, and that the plaintiff willingly assumed the risk.

The court dismissed the motion, finding that the evidentiary record, including conflicting evidence regarding the deceased's mental capacity and the plaintiff's responsibilities, did not permit a full appreciation of the facts necessary to grant summary judgment.

The appellant appealed a motion judge's order awarding $3,950 in costs to the respondent and making findings on a defamation issue.

The Court of Appeal allowed the appeal, reducing the costs award to $1,000 to reflect the respondent's limited success on the motion.

The Court also set aside the motion judge's findings on defamation, agreeing with the appellant that the motion judge lacked jurisdiction to make such findings on that type of motion.