Nazli Buhary

The plaintiff brought three unopposed motions in writing regarding two proceedings arising from the same alleged slip and fall accident.

The first two motions sought to consolidate the two actions, as the plaintiff had initially sued an unknown property management company and later commenced a second action upon learning its identity.

The third motion sought leave to amend the statement of claim in the consolidated proceeding to reflect the correct parties.

The court granted the consolidation, finding the proceedings had common questions of fact and law, and granted leave to amend the pleadings to correct the misnomer and remove discontinued parties.

The defendant sought an adjournment of a long-standing motor vehicle accident trial, scheduled for June 2022, to allow for a Workplace Safety and Insurance Appeals Tribunal (WSIAT) determination regarding the plaintiff's employment status at the time of the accident.

The WSIAT application was filed at the eleventh hour, a decade after the action commenced and after multiple trial dates had been fixed.

The court dismissed the adjournment request, finding it unfair to the plaintiff to further delay the case due to the defendant's belated application, and that it was not in the interests of justice.

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 plaintiff appealed an Associate Judge's order requiring her to attend defence medical examinations.

She brought a motion to stay the order pending appeal and for leave to admit fresh evidence of her psychiatric distress following the release of the order.

The court granted the unopposed stay with costs.

However, the court dismissed the motion to admit fresh evidence, applying the Palmer test.

The court found that the fresh evidence was not relevant to a decisive issue and would not have affected the result, as the plaintiff's genuine fears and vulnerabilities regarding the examinations during the COVID-19 pandemic were already before the Associate Judge.

The defendants brought a motion to compel the plaintiff to attend in-person physiatry and neuropsychology defence medical examinations.

The plaintiff objected to the in-person physiatry examination due to COVID-19 concerns and her compromised health, and objected to the neuropsychology examination arguing she had not put her cognitive state in issue.

The court ordered the plaintiff to attend both examinations in person, finding that adequate COVID-19 safety protocols were in place at the assessment facility and that the plaintiff's pleadings and medical reports had put her neurocognitive condition in issue.

The plaintiff brought a motion to amend her statement of claim in a slip and fall action to add Safety First Services Inc., an existing third party, as a defendant to the main action, despite the expiration of the two-year limitation period.

The court granted leave to amend, finding that the plaintiff had raised a triable issue regarding the discoverability of the claim against Safety First, and allowed Safety First to plead limitations as a defence in its statement of defence.