Joelle Malette

The defendant estate brought a motion to limit the plaintiff to calling three expert witnesses at the upcoming personal injury trial, arguing there was considerable duplication among the proposed five experts.

The court reviewed the proposed experts and found that the functional ability assessment by one expert duplicated the range of motion testing in the in-home assessment by another.

The court permitted the plaintiff to call four experts (an orthopaedic surgeon, a future care costs evaluator, an in-home assessor, and a vocational evaluator) but excluded the functional ability expert.

The court also raised concerns about the admissibility of proposed psychiatric evidence regarding a defendant's mental capacity under the Mohan framework and requested written submissions before ruling on that issue.

The defendant estate brought a motion for summary judgment in a slip and fall action initiated by the deceased's personal care worker.

The plaintiff slipped on an icy driveway while caring for the deceased.

The defendant argued that the deceased lacked the mental capacity to be an 'occupier' under the Occupiers' Liability Act, that the plaintiff herself was the occupier, that any duty was fulfilled by hiring contractors, and that the plaintiff willingly assumed the risk.

The court dismissed the motion, finding that the evidentiary record, including conflicting evidence regarding the deceased's mental capacity and the plaintiff's responsibilities, did not permit a full appreciation of the facts necessary to grant summary judgment.

The appellant insurer appealed a motion judge's decision dismissing its motion for summary judgment.

The respondent had received disability benefits after an accident but returned to work full-time for over six months before going off work again following an MRI.

The insurer denied the resumption of benefits based on the 'Recurrent Disability' clause in the policy.

The Divisional Court allowed the appeal, finding the policy language clear and unambiguous, and held that the motion judge erred in law by concluding a trial was necessary to interpret the policy in light of the MRI.

Summary judgment was granted dismissing the action.

The defendant municipality sought leave to appeal a motions judge's refusal to grant summary judgment dismissing the plaintiff's claim.

The plaintiff sued for damages after slipping and falling in a pothole while crossing a roadway.

The Divisional Court denied leave to appeal, finding no good reason to doubt the correctness of the motions judge's conclusion that genuine issues of material fact required a trial, particularly regarding the state of repair of the roadway and the municipality's duty of care to pedestrians crossing outside of designated crosswalks.