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Contractual medical examinations do not pre-empt a defendant's prima facie right to a first litigation medical examination.
The appellant insured was receiving disability benefits following an automobile accident.
The respondent insurer suspended benefits after the appellant refused to attend an addiction treatment program recommended by an addiction expert who examined him under the insurance contract.
The appellant brought an application for a declaration that benefits could not be terminated, and the insurer successfully moved for an order for another medical examination by the same expert under s. 105 of the Courts of Justice Act and Rule 33.
The Divisional Court dismissed the insured's appeal, holding that a medical examination conducted pursuant to an insurance contract prior to litigation does not pre-empt a defendant's prima facie right to a first medical examination under the rules of civil procedure.
Third party claim for contribution and indemnity dismissed as Negligence Act only applies to concurrent wrongdoers.
The plaintiff brought an action against the defendant for damages arising from sexual contact in 1972.
The defendant sought to add the plaintiff's parents and former boyfriend as third parties, arguing they were responsible for the plaintiff's damages due to subsequent abuse.
The motions judge dismissed the motion to add the third parties.
The Court of Appeal dismissed the defendant's appeal, holding that section 1 of the Negligence Act only permits claims for contribution and indemnity between concurrent wrongdoers, not independent tortfeasors whose acts occurred at different times.
Repudiation not accepted, so the limitation argument failed.
The appellant insurer argued on appeal that a 1989 letter did not create a binding agreement and, alternatively, that the respondent's claim was out of time after the insurer indicated in 1991 it would no longer be bound.
The court held the trial judge properly relied not only on the letter itself but also on the agent's cross-examination evidence acknowledging an agreement.
The court further held that the 1991 letter constituted repudiation, but because the respondent did not accept that repudiation, the contract remained in force and the respondent was not required to commence proceedings by the date asserted by the appellant.
The appeal was dismissed with costs.
