Dr. Peter R. Knight

The insurer sought an order to videotape the examination of three expert witnesses to preserve their evidence regarding the cause of an infant's injuries, as the limitation period for the infant to sue would not expire until 2021.

The motion judge granted the order relying on the court's inherent jurisdiction and the Rules of Civil Procedure.

The Court of Appeal allowed the insured's appeal, holding that Rule 36.01 does not authorize the preservation of evidence before an action is commenced, and section 146 of the Courts of Justice Act cannot be used to create such jurisdiction where the Rules intentionally restrict it to existing proceedings.

The applicant sought statutory accident benefits following a motor vehicle accident.

After failing to attend the arbitration hearing despite proper notice, the arbitrator proceeded in his absence.

Relying on the insurer's uncontradicted expert evidence that the claimed injuries could not have resulted from the minor impact, the arbitrator dismissed the claims.

Finding the applicant's failure to pursue his claims to be vexatious and an abuse of process, the arbitrator ordered the applicant to pay $1,000 in expenses to the insurer.