Adrian Lomaga

In a medical malpractice action alleging lack of consent to a tubal ligation, the defendant physicians brought a motion under Rule 31.10 to examine the plaintiff's husband as a non-party.

The plaintiff opposed the motion, arguing that her husband had already provided written answers and that other parties present during the consent discussions had been examined.

The court dismissed the motion, finding that the plaintiff's inability to recall certain discussions did not amount to a constructive refusal, and the defendants failed to establish they were unable to obtain the information from other sources.

The plaintiff in a serious motor vehicle personal injury action moved for leave to amend the statement of claim to increase the prayer for relief from $950,000 to $2 million after the action had been set down for trial.

The defendants argued the amendment would be highly prejudicial because it would expose the individual defendants personally beyond their $1 million liability coverage and require retention of excess counsel shortly before trial.

The court held that Rule 26.01 mandates leave absent prejudice that cannot be compensated by costs or an adjournment, and found the defendants had not met that onus because liability issues were unchanged and the amendment concerned only quantum.

Leave was granted, subject to a proportionality-based term requiring the plaintiff to indemnify the individual defendants for excess counsel costs on a substantial indemnity basis if damages above policy limits were not ultimately recovered.

Motion costs were awarded to the plaintiff.

On a summary judgment motion arising from a motor vehicle accident involving an uninsured son driving his father's vehicle, the moving defendant sought dismissal of the plaintiff's claim and an insurer's crossclaim on the basis that the vehicle had been taken without consent.

Applying the post-Hryniak summary judgment framework, the court held there was no genuine issue requiring a trial on consent to possession.

The court found that although the father had forbidden operation of the vehicle and the son had signed an excluded driver form, the son retained legal possession because the vehicle and keys remained available to him and had been entrusted for his use.

The owner was therefore potentially vicariously liable under s. 192 of the Highway Traffic Act, with negligence and damages left for trial.

The plaintiff moved for leave to amend his statement of claim to substitute the actual owner and property manager of premises where a trip and fall occurred, after the limitation period had expired.

The court held the case was one of misnomer, not the addition of new parties, because the pleading clearly identified the incident, location, date, and alleged liability of the owner, occupier, and manager at the relevant time.

Applying the Court of Appeal's misnomer jurisprudence, the court found a reasonable person reviewing the claim would have understood the intended defendants were the owner and manager in place on the accident date.

The court further held there was no basis to exercise residual discretion to refuse the correction because there was no actual prejudice, no significant delay, and prompt notice followed shortly after expiry of the limitation period.