James Flaherty

The appellant appealed the dismissal of her personal injury claim following a slip and fall near a bus stop.

At trial, the judge accepted the evidence of a bus driver over the appellant's testimony regarding the cause of the fall.

On appeal, the appellant argued the trial judge erred in his credibility findings and in limiting cross-examination of the bus driver on a 'will say' statement.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the factual findings and no substantial wrong or miscarriage of justice regarding the cross-examination.

The defendants appealed an order striking their statement of defence for failing to comply with production orders.

The Court of Appeal allowed the appeal, finding the motions judge erred in principle by striking the pleading without reviewing all the affidavit evidence.

The Court concluded the 'ultimate litigation remedy' was not warranted given the defendants' efforts to comply, mutual delay, and limited evidence of prejudice to the plaintiff.

The defendants were ordered to produce all outstanding documents within seven days.