P. Essig

The plaintiff and the defendants are neighbours sharing a common wall.

The defendants undertook a home renovation involving the demolition of their main floor, exposing a partition wall to the elements.

The plaintiff brought a motion for a mandatory injunction to compel the defendants to address concerns regarding heat loss, moisture, mould, and pests.

The court dismissed the motion, finding that the plaintiff failed to establish a strong prima facie case of nuisance, as the evidence showed the common wall was adequately protected and the plaintiff's fears of damage were largely theoretical.

In a personal injury action set down for trial, the defendant sought to compel the plaintiff to attend a neurological defence medical examination, which would have been the sixth defence medical assessment.

The court held that because the action had already been placed on the trial list with the defendant’s consent, leave under Rule 48.04(1) of the Rules of Civil Procedure was required before initiating further discovery steps.

Leave had not been sought and, in any event, would not have been granted because the defendant failed to establish an evidentiary basis for an additional examination.

The court found no new or unexpected change in the plaintiff’s condition and emphasized proportionality, noting that the plaintiff had already undergone multiple defence examinations and had not served any new neurological report.

The motion was dismissed and costs were awarded to the plaintiff.