Saad Nassar

The defendant Phillip Franchetto brought a motion for summary judgment to dismiss negligence claims against him arising from a head-on motor vehicle collision.

The plaintiffs, passengers in the other vehicle, alleged Franchetto was negligent for his speed and evasive maneuvers.

The court dismissed the motion, finding that Franchetto's actions were reasonable and did not breach the standard of care, nor were they a legal cause of the plaintiffs' injuries.

The court emphasized that expert opinions based on hindsight and counterfactuals cannot supplant the legal standard of a reasonable and prudent driver in an emergency.

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 insurer sought an order to preserve the evidence of three expert witnesses regarding the cause of an infant's injuries, anticipating a future motor vehicle accident claim.

Because the infant's limitation period extended to 2021, the insurer feared the experts might become unavailable.

The application judge granted the order under Rule 36.01 and s. 146 of the Courts of Justice Act.

The Court of Appeal allowed the insured's appeal, holding that Rule 36.01 only applies after a proceeding has been commenced, and s. 146 cannot be used to create jurisdiction where none exists.