Geoffrey L. Keating

The moving party, Aviva General Insurance Company, sought leave to appeal a Divisional Court decision that found Carrie-Anne Davis suffered an "accident" under the Statutory Accident Benefits Schedule (SABS) after slipping on ice near her car.

The Court of Appeal clarified that the `Sault Dock` framework for leave to appeal remains unchanged, despite recent comments in `West Whitby`.

The Court denied leave, finding the dispute largely fact-specific and that Aviva had not presented an arguable case to change the settled SABS "accident" test.

The plaintiffs' claim for personal injuries, stemming from a 2003 motor vehicle accident, was dismissed by the Superior Court of Justice.

The action, commenced in 2007, had a long history of delays, including the plaintiffs' repeated failure to attend court conferences, non-compliance with court orders, and requests for adjournments of peremptory trial dates without sufficient medical evidence.

Despite being granted numerous indulgences and warnings, the plaintiffs failed to proceed with the trial on the final peremptory date.

The court emphasized the need to control its procedure and ensure fairness to all litigants, noting that access to justice is not without limits and cannot be abused by disregarding court rulings.

The defendant insurer brought a motion relating to a defence medical examination conducted under s. 105 of the Courts of Justice Act.

After the examination, the examining physician disclosed that her fellowship in physical medicine and rehabilitation had been withdrawn before she issued a report.

The court held that because the examination had been conducted by a licensed physician, the examiner was required under rule 33.06 of the Rules of Civil Procedure to prepare and deliver a written report, which the defendant was then required to serve on the plaintiff.

The defendant’s request was treated as a request for a further medical examination under s. 105(4), which was permitted only after service of the first report.

The court also directed that the subsequent physiatry examination be conducted in Windsor for the plaintiff’s convenience.