Evan A. Argentino

The appellants appealed the dismissal of their contempt motion against the respondents for breach of a 2012 judgment.

The 2012 judgment had found that the respondents interfered with water drainage from the appellants' property by damaging a drainage pipe, changing the slope of their driveway, and installing a rubber dam.

The respondents were ordered to restore the flow of water within three months.

The motion judge dismissed the contempt motion, finding that the respondents had complied by replacing the damaged pipe.

The Court of Appeal allowed the appeal, finding that the motion judge misinterpreted the 2012 judgment, misapprehended the expert evidence, and misapplied the test for civil contempt.

The court ordered the respondents to implement the necessary steps to restore water flow as recommended by the appellants' expert, including installation of two 250mm diameter pipes and removal of the rubber dam.

The appellant RSA appealed a motion judge's decision regarding insurance policy priority following a motor vehicle accident.

The plaintiff was struck by a vehicle owned by D'Souza and driven by Lamoureux.

The central issue was whether the plaintiff's OPCF 44R underinsured motorist endorsement or D'Souza's personal umbrella liability policy (PLUP) would respond after the primary automobile policy limits were exhausted.

The motion judge determined that the OPCF 44R took priority over the PLUP, that RSA could not deduct the PLUP limits from its OPCF 44R payments, and that RSA could not issue a third-party claim against Certas or subrogate against the defendants.

The Court of Appeal upheld all of these determinations.

The defendants sought an order compelling the plaintiff to attend a further examination for discovery, arguing that his psychological condition had substantially deteriorated since the initial discovery.

The plaintiff opposed, asserting that any changes were merely in symptoms, not the underlying condition, and that further examination was unnecessary given the production of updated medical records.

The court found that the plaintiff's post-discovery diagnosis of PTSD, suicidal ideations, and admission to hospital on a Form 1 constituted a substantial deterioration and exceptional circumstances warranting a further examination.