James F. Diamond

Following a motor vehicle collision, the defendants admitted liability and the jury awarded general damages and future health care expenses.

While the jury was deliberating, the defendants brought a threshold motion under the Insurance Act seeking a declaration that the plaintiff's injuries did not meet the statutory exception for permanent serious impairment of an important physical, mental or psychological function.

The court accepted that the plaintiff had chronic pain and that his condition was permanent, but held the evidence did not establish a serious impairment causing substantial interference with regular training or most usual activities of daily living.

The plaintiff's ability to complete ESL training and continue household activities undermined the claim that the threshold was met.

The motion was granted and the action dismissed.

On a motion for a sealing order in the context of a municipal enforcement application concerning ride-sharing services, the moving parties sought to keep an insurance policy confidential under s. 137(2) of the Courts of Justice Act.

Applying the Sierra Club test, the court held the evidence did not establish a real and substantial risk to an important commercial interest capable of being expressed as a public interest in confidentiality.

The absence of evidence from the insurer and the nature of the document as an insurance policy undermined the claim of confidentiality and competitive harm.

The court further indicated that, even if the first branch had been met, the salutary effects would not outweigh the deleterious effects given the open court principle and the public interest nature of the underlying proceeding.

The motion was dismissed.

The defendant dentist brought a summary judgment motion to dismiss a negligence action arising from allegedly faulty bridgework as statute barred under the Limitations Act, 2002.

The court held that the plaintiff knew or ought to have known the material facts underlying the claim by late May or early June 2011, when replacement treatment was recommended, reimbursement was demanded, and a regulatory complaint was threatened.

The plaintiff's later reliance on the professional regulator's decision did not postpone discoverability because knowledge of legal negligence is not required to start the limitation period.

Summary judgment was granted and the action was dismissed as out of time.

The moving defendant sought to set aside a default judgment arising from a restaurant renovation dispute involving alleged breach of contract.

The court accepted that the moving party had explained the original default and had advanced a triable defence, but found that he did not bring the motion promptly and failed to satisfactorily explain extensive delay and repeated non-compliance with court orders.

Applying the established three-part framework for setting aside default judgment, the court held that granting relief would not be in the interests of the administration of justice.

The motion was dismissed with partial indemnity costs to the plaintiff.