3 total
The court declined to set aside a registrar's dismissal for delay due to unexplained delays and actual prejudice to the defendants.
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.
Motion for second defence medical examination dismissed as defendant must rely on its initial expert choice.
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.
Motion to amend defence to plead spoliation adjourned for lack of proper evidentiary basis.
The defendant brought a motion to amend their statement of defence to plead spoliation, alleging the plaintiff lost or destroyed a clinical file from an attendant care provider.
The motion was based on a letter from the provider stating the file was left at the plaintiff's home, which the plaintiff vigorously denied under oath.
The court adjourned the motion, finding that the amendment was based on double hearsay and would cause irreparable prejudice to the plaintiff without a proper evidentiary basis, granting the defendant leave to return with proper affidavit evidence.
