Frank McNally

The plaintiffs brought a motion to strike the defendant's jury notice in a motor vehicle accident claim, arguing that the Covid-19 pandemic would indefinitely delay a jury trial.

The court granted leave to bring the motion, finding the pandemic constituted a substantial and unexpected change of circumstances.

However, the court dismissed the motion to strike the jury notice because the parties were not yet ready for trial.

Specifically, the defendant's psychiatric expert had not received all necessary raw data to complete his report, and a pre-trial conference remained outstanding.

The court vacated the upcoming trial dates and directed the matter to a trial management court.

The plaintiff was involved in a single-vehicle accident on Highway 417, allegedly caused by an unpaved bump.

He failed to provide the required 10-day statutory notice to the Ministry of Transportation under s. 33(4) of the Public Transportation and Highway Improvement Act, only serving a claim 30 months later.

The defendant moved for summary judgment.

The court found no genuine issue for trial, concluding the plaintiff lacked a reasonable excuse for the delay, particularly after retaining counsel, and failed to rebut the presumption of prejudice caused by the road being repaved before notice was given.

The action was dismissed.

The defendant in a motor vehicle accident action brought a motion to compel the plaintiff to produce the transcript of her examination for discovery from a separate action against her long-term disability insurer.

The plaintiff opposed, relying on the deemed undertaking rule.

The court granted the motion, finding that the transcript was relevant to the plaintiff's injuries and that the exception under Rule 30.1.01(6) applied, allowing the transcript to be used for the limited purpose of impeaching the plaintiff's testimony.

The defendants sought a nunc pro tunc order to issue a third party claim against a doctor and an unknown individual after the two-year limitation period had expired.

The plaintiffs consented, but the proposed third party doctor opposed the motion.

Applying the framework from CIBC v. Green, the court found that while the defendants met the red-line rule by filing their motion before the deadline, they failed to act diligently in pursuing the claim.

The court dismissed the motion, concluding that the defendants were the authors of their own misfortune and that the proposed third party would be prejudiced by the backdated order.

The defendants brought a motion to compel the plaintiff to attend a further independent psychiatric examination.

The plaintiff had previously attended an examination, but due to an administrative error, was examined by the wrong doctor (the intended doctor's brother).

The plaintiff opposed the motion, arguing that a further examination was unnecessary and would cause him prejudice due to a real risk of harm, as he had a history of suicidal ideation and hospitalizations following previous assessments.

The court found that the further examination was necessary and fair, as the defendants had a right to an expert opinion from a specialist of their choice.

The court ordered the examination to proceed in Ottawa, with the condition that the plaintiff's treating psychiatrist be available immediately afterward to mitigate any risk of harm.