James Richard Shafman

This was a costs decision following dismissal of a defence summary judgment motion in a motor vehicle negligence action that alleged the claim was statute-barred.

The successful party sought $9,212.95 in costs, while the opposing parties argued that no costs should be awarded or, alternatively, that costs should be reduced.

The court held there was no reason to depart from the normal rule that partial indemnity costs follow the event.

After reviewing the bill of costs and responding submissions, the court fixed costs at $7,750 all inclusive.

On a summary judgment motion, the defendants argued the plaintiff's motor vehicle tort claim was commenced outside the two-year limitation period.

The court held that, where a claim is subject to the Insurance Act threshold, discoverability requires sufficient medical evidence to indicate a substantial chance of meeting the threshold for recovery.

The plaintiff did not know and ought not to have known within the initial 21 days after the accident that she had sustained a permanent serious impairment.

The limitation defence was dismissed, and the plaintiff obtained partial summary judgment declaring the action timely.

The defendants brought a motion seeking an order compelling the plaintiff to attend a psychiatric defence medical examination after the plaintiff had already attended defence medical assessments with an orthopaedic specialist and a neuropsychologist.

The defendants argued that the neuropsychological assessment did not substitute for a psychiatric evaluation, particularly in light of references in the report suggesting potential psychiatric issues.

The court held that the parties had effectively agreed that the plaintiff would attend either a neuropsychological or psychiatric defence examination but not both, and the defendants had already exercised that option.

In the absence of medical evidence showing the plaintiff was receiving psychiatric treatment or requiring psychiatric assessment, the allegations in the statement of claim alone were insufficient to justify an additional defence medical.

The motion was dismissed and costs were awarded to the plaintiff.