Jono Schneider

The defendant brought a motion to compel the plaintiff to answer an outstanding undertaking and four refused questions from discovery.

The court ordered the plaintiff to produce an accident benefits file from a prior accident, rejecting the plaintiff's argument that it was irrelevant.

The court also ordered the production of redacted bank records and accountant's files for three years pre-accident, finding them relevant to the plaintiff's income loss claim given inconsistencies in reported earnings.

However, the court refused to compel answers regarding a statement given by the plaintiff to their insurance company after the accident, applying the principle that such information could be obtained through direct questioning during discovery, similar to Sangaralingam v. Sinnathurai.

Costs were not awarded due to divided success.

The statutory third party, Wawanesa, brought a motion to compel the plaintiff to attend a defence physiatry examination.

The plaintiff opposed, arguing that leave was required under Rule 48.04 and that the motion should be denied due to various defaults by the insured and Wawanesa.

The court found that leave was not required and that Wawanesa should not be prejudiced by its insured's defaults.

However, the motion for an immediate examination was dismissed due to Wawanesa's significant delay in requesting it, which would prejudice the plaintiff given the imminent trial date and the inability to obtain a timely expert response.

The court ordered Wawanesa to produce the insurance policy and fixed costs against Wawanesa, while also stating that the plaintiff would be required to attend the examination if the trial were adjourned.

Following a jury trial in a motor vehicle negligence action where liability was admitted but the jury found the accident caused no injuries, the defendant sought costs after the plaintiff’s action was dismissed.

The court considered the discretion under s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, as well as the effect of Rule 49 offers to settle.

The court held that Rule 49.10 did not apply because the plaintiff obtained no judgment.

Applying the principle that costs generally follow the event, the court concluded there was no misconduct justifying departure from that principle, though the plaintiff’s financial circumstances were considered in assessing quantum.

The defendant was awarded partial indemnity costs and reduced disbursements in an amount the court considered fair and reasonable.