Michael Rotondo

The moving party brought a motion to quash the insurers' appeal of an order denying them leave to amend their pleadings to add the defence of civil fraud.

The moving party argued the order was interlocutory and should be appealed to the Divisional Court.

The Court of Appeal held that an order refusing leave to amend a pleading to advance a new substantive defence is a final order.

Because the order foreclosed the insurers' ability to assert the distinct defence of civil fraud, the appeal properly lies to the Court of Appeal.

The motion to quash was denied.

This is an appeal from an Associate Judge's interlocutory order dismissing a motion to extend discovery time limits in a simplified procedure action and to examine non-parties.

The Associate Judge had concluded she lacked discretion to extend time under Rule 76.04(2) of the Rules of Civil Procedure.

The appellate court found that the Associate Judge erred in this conclusion, holding that general rules (such as Rule 3.02) allow for extension of time limits in simplified procedure actions unless explicitly exempted.

The court set aside the order dismissing the appellants' motion and dismissed the respondent's cross-appeal regarding costs and examination of non-parties.

The matter was remitted to the Associate Judge for further orders consistent with the finding of discretion.

Following the dismissal of the plaintiff's appeal, the defendants sought costs of $11,073.92, which included cancellation fees for missed defence medical assessments.

The court held that the cancellation fees were outside the purview of appeal costs and could be pursued at trial or by separate motion.

The court awarded the successful defendants costs of the appeal fixed at $4,000 inclusive of disbursements and taxes.

The plaintiff appealed an order of an Associate Judge requiring her to attend in-person defence medical examinations with a physiatrist and a neuropsychologist.

The plaintiff had refused to attend due to fears of contracting COVID-19.

The Superior Court of Justice dismissed the appeal, finding that the Associate Judge made no palpable and overriding error in concluding that the in-person examinations were necessary and that the assessment facility's COVID-19 safety protocols were adequate.

The defendants brought a motion to extend the allotted discovery time under the simplified procedure rules to examine two non-parties.

The plaintiff had strictly enforced the three-hour limit under Rule 76.04(2) during his examination, despite having examined the defendants for over five hours.

The court found the plaintiff's conduct to be sharp practice but concluded it had no discretion to extend the time limit under Rule 76.04(2).

The motion was dismissed, but the defendants were awarded costs due to the plaintiff's lack of professional courtesy.