Blair Nitchke

The plaintiff brought a motion to restore two motor vehicle accident actions to the trial list after they were dismissed by the trial judge for failure to comply with trial management orders.

The Court of Appeal had referred the matters back for reconsideration on a more fulsome record.

The Superior Court dismissed the motion and both actions, finding that the plaintiff remained in intentional breach of previous trial management orders, failed to provide new medical evidence, offered no acceptable explanation for the extraordinary delay (over 15 years for the first action), and failed to demonstrate that the defendants would not suffer non-compensable prejudice.

Following a jury verdict in a motor vehicle tort action, the court determined the post-verdict deductibility of collateral benefits from the plaintiff's past income loss award.

Applying ss. 267.5(1) and 267.8(1) of the Insurance Act, the court first reduced the gross past income loss award to 80 per cent of net income loss, then deducted all income replacement benefits received during the same relevant period.

The court rejected a weekly or speculative parsing of the jury's lump-sum award and held that the total statutory accident benefits received for that period had to be deducted from the total amount to which the plaintiff was entitled.

As the benefits received exceeded the net recoverable amount, the plaintiff's entitlement for past income loss was reduced to nil.

Following a jury award for general damages and past income loss arising from a motor vehicle collision, the defendants brought a threshold motion asserting that the plaintiff's injuries did not meet the statutory exception to immunity for non-pecuniary damages.

The court reviewed s. 267.5(5) of the Insurance Act and O. Reg. 461/96, including the requirement that the impairment be permanent, important, and serious.

Although the court accepted that the plaintiff's back pain was permanent and affected an important function given his physically demanding work, it found no substantial interference with his regular employment or most activities of daily living.

The threshold motion was granted and, together with the collateral benefits ruling, the action was dismissed.