Kirryn G. Hashmi

The plaintiff commenced an action for negligence after a fire on the defendant's railway lands damaged its business.

The action was struck from the trial list due to outstanding undertakings and later administratively dismissed for delay after a motion judge refused to restore it.

The Court of Appeal allowed the appeal, finding the motion judge erred in principle by focusing on allocating blame for the delay rather than whether the plaintiff's explanation was reasonable, and by presuming prejudice from the passage of time.

The Court reweighed the evidence, found the plaintiff's explanation acceptable and no non-compensable prejudice to the defendant, and ordered the action restored to the trial list.

The appellant was seriously injured in a motor scooter accident and suffered brain injuries.

At trial, 16 years later, she provided a different account of the accident than in her statement of claim.

The trial judge dismissed the action, finding she had not proven the respondent caused or contributed to the accident, relying in part on defence expert evidence regarding retrograde amnesia.

On appeal, the appellant argued the trial judge erred in admitting the expert evidence, assessing reliability, and applying the standard of proof.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's reliance on the expert evidence, assessment of reliability, or application of the balance of probabilities standard.