Derek Ballard

The plaintiffs commenced an action against the defendant landlords and a municipality following a fatal house fire.

A jury notice could not initially be delivered because the municipality was a named defendant.

After the municipality was released on consent, the pleadings had closed.

Due to inadvertence of counsel, the plaintiffs did not seek leave to file a jury notice until over two years later.

The motion judge granted leave, finding no unconscionable delay and no prejudice to the defendants.

The defendants appealed to the Divisional Court.

The Divisional Court dismissed the appeal, holding that the motion judge correctly identified and applied the legal test, which requires considering the circumstances of the delay and whether there is prejudice to the opposing party, and that prejudice is not presumed merely because discoveries have been completed.

The appellant applied for a disability pension and submitted a medical opinion stating she was totally and permanently disabled.

The respondent's physician agreed she was totally disabled but disputed that the condition was permanent.

An independent medical referee was appointed under the pension plan but concluded the appellant was not totally disabled, despite this not being in dispute.

The motion judge granted summary judgment for the respondent, finding the referee was entitled to make a full determination.

The Court of Appeal allowed the appeal, holding that the referee's role under the plan is to resolve the specific dispute between the physicians, not to substitute a new opinion on undisputed matters.