Jeffrey A. Small

The plaintiff in a personal injury action served new expert reports very late, just prior to the third scheduled trial date.

The defendants objected to their admissibility due to non-compliance with the court-ordered timetable and the inability to secure responding reports.

The court found the plaintiff's explanation for the delay unreasonable, noting the issue of potential conflict with the original experts (retained through a company owned by the former solicitor's husband) was known since 2016 and highlighted by a recent mistrial decision.

The judge deemed the late reports presumptively inadmissible but deferred the final determination of admissibility to the trial judge.

The Defendant brought a motion seeking a further examination for discovery and production of documents from Plaintiff Mark Birikorang.

Although the substantive issues were settled by consent, the parties disagreed on costs.

The court found the motion necessary due to the Plaintiff's initial refusal to attend a third examination.

The Defendant was awarded costs, but the claimed amount was reduced from $7,572.70 to $4,000 for fees, plus $560.50 for disbursements, totaling $4,560.50, payable by the Plaintiff Mark Birikorang.

The defendants moved for a stay of the plaintiffs' action until the plaintiff, Tan Duc Ngo, completed a neuropsychological assessment.

This assessment had been previously attempted but terminated due to the plaintiff's health issues, leading to a prior motion before Di Luca J. to compel re-attendance, which was denied without prejudice to renew if new evidence of improved health emerged.

The current motion for a stay was dismissed by Edwards J., who found it an attempt to circumvent Di Luca J.'s order without presenting the required new evidence.

However, the court, acting as case management judge, ordered the plaintiff's counsel to obtain a medical report addressing the plaintiff's current ability to undergo the assessment and to testify at trial, and to explain any discrepancies.

Costs were to be resolved by the parties or through written submissions.

The defendant brought a motion seeking an order for the plaintiff to attend an independent medical examination (IME) with a physiatrist specializing in amputations.

The plaintiff, who had sustained a leg amputation, opposed the motion, arguing that their condition had not changed significantly since a previous defence medical assessment by an occupational medicine specialist, and that the request was a "do over." The court granted the motion, emphasizing the principle of fairness to allow the defendant to obtain expert evidence in a specialized area (amputation treatment) to respond to the plaintiff's physiatrist's opinion and to "level the playing field" in assessing damages.

The plaintiff brought a motion to restore two motor vehicle accident actions to the trial list after they were dismissed by the trial judge for failure to comply with trial management orders.

The Court of Appeal had referred the matters back for reconsideration on a more fulsome record.

The Superior Court dismissed the motion and both actions, finding that the plaintiff remained in intentional breach of previous trial management orders, failed to provide new medical evidence, offered no acceptable explanation for the extraordinary delay (over 15 years for the first action), and failed to demonstrate that the defendants would not suffer non-compensable prejudice.

The moving party, Shu He Huang, sought leave to appeal an order from Justice Todd L. Archibald that appointed the Public Guardian and Trustee as her litigation guardian, following a finding that she was a person under a disability due to mental incapacity.

The court denied leave to appeal, finding that the moving party failed to satisfy either branch of the strict two-part test for leave under Rule 62.02(4).

Specifically, there were no conflicting decisions on a matter of principle, and the proposed appeal did not involve matters of general public importance beyond the immediate parties' interests.

Furthermore, the court found no reason to doubt the correctness of the motions judge's original order, addressing and dismissing each of the moving party's six grounds of appeal, which included challenges to the medical proof of incapacity, the order for capacity assessment, the allocation of assessment costs, the admissibility of the assessment report, the fairness of the assessment conditions, and the basis for appointing the Public Guardian and Trustee.

The appellant appealed the dismissal of her actions by the trial judge.

The Court of Appeal found that the trial judge did not have a complete picture of the facts and circumstances when dismissing the case.

The appellant, a self-represented litigant with language issues, was non-compliant with a trial management order at the time set for trial, and her main liability witness (her brother) had been recently injured and hospitalized in Ecuador.

The Court of Appeal allowed the appeals, set aside the trial judge's orders, and directed the appellant to bring a motion within 60 days before a Superior Court judge to demonstrate why the matters should proceed, on a more fulsome record including medical evidence.