Dr. Delaney

Following a civil jury trial for damages arising from a motor vehicle accident, the defendants brought a motion for a ruling that the plaintiffs' claims did not meet the statutory threshold under the Insurance Act.

The jury had awarded modest damages, implicitly rejecting much of the plaintiffs' evidence on causation and credibility.

However, the trial judge conducted an independent assessment and found the principal plaintiff to be credible.

The court concluded that the plaintiff suffered from chronic low back pain caused by the accident, which constituted a permanent serious impairment of an important physical function.

The defendants' motion was dismissed, and the court ruled that the plaintiffs met the statutory threshold.

The plaintiffs appealed a Divisional Court order compelling the plaintiff to attend two defence medical examinations.

The defendant had previously brought a motion to adjourn the trial to conduct defence medicals, which was dismissed.

The defendant subsequently brought a second motion to compel attendance at rescheduled medicals prior to trial, which was also dismissed by the motion judge but allowed on appeal to the Divisional Court.

The Court of Appeal allowed the plaintiffs' appeal, holding that the second motion was substantially the same as the first, and the defendant was precluded by issue estoppel from relitigating the matter.