N. Kiddie

The plaintiffs brought a motion to set aside a Registrar's order dismissing their action for delay, which arose from a 2011 property flood.

The court applied the four-factor test from Reid v. Dow Corning Corp., assessing the explanation for delay, inadvertence in missing the deadline, promptness of the motion, and prejudice to the defendants.

The court found significant unexplained delays by both plaintiffs and their counsel, that the missed deadline was not mere inadvertence, and that the motion to set aside was not promptly brought.

Crucially, the defendants suffered actual prejudice due to the death of a key plaintiff (James Freure) and the dementia of another (Fae Freure), which prevented full discoveries and expert examinations, and resulted in the loss of relevant medical records.

The court dismissed the motion to set aside the dismissal, emphasizing the need for finality in litigation.

A separate motion to appoint Catherine Chapman as litigation guardian for Fae Freure was granted.

The defendant in a slip and fall action brought a motion to compel the plaintiff to attend a second independent medical examination with an orthopaedic surgeon.

The defendant had previously arranged an examination with a physiatrist, who provided a report.

After the plaintiff served an expert report from an orthopaedic surgeon, the defendant sought a matching report.

The court applied the Bonello factors and dismissed the motion, finding that the defendant had an opportunity to fairly investigate the injuries with its first expert and was not entitled to a second examination simply to obtain a more favourable opinion or a matching specialty.