The appellants appealed an order dismissing their motion to exclude the medical report and evidence of a defence expert, Dr. Bednar, prior to trial.
The motions judge had declined to rule on the admissibility, holding that such a determination should be reserved for the trial judge.
The Divisional Court dismissed the appeal, with the majority finding that it would be extremely rare for a motions judge to be in an equal or better position than the trial judge to rule on the exclusion of expert evidence.
Matlow J. dissented, arguing the motions judge had jurisdiction under Rule 37.02(1) and should have considered the merits.
