Peter K. Foulds

The defendant Ministry of Transportation brought a motion seeking orders requiring the plaintiff to complete a further future cost of care assessment at her home and to attend a defence psychological examination under Rule 33 of the Rules of Civil Procedure and s. 105 of the Courts of Justice Act.

The action arose from a motor vehicle accident and was scheduled for trial in less than three months.

The court held that the moving party failed to demonstrate that additional occupational therapy assessment time or a further psychological examination was necessary to ensure trial fairness.

The existing medical evidence and prior defence examinations were sufficient to permit the defence to respond to the plaintiff’s claims.

The motion was dismissed, although leave was granted for the defence psychiatrist to provide a limited supplemental report responding to a recent expert report.

A dispute arose following a fire at a heritage house unit within a condominium development regarding who had the right to control and conduct repairs to the damaged structure.

The unit owner sought an interlocutory and final injunction preventing the condominium corporation and insurer from proceeding with repairs and sought a declaration granting him exclusive authority over restoration.

The condominium corporation argued the declaration and condominium governance documents imposed the obligation to repair damage on the corporation and that the owner had failed to act within a reasonable time.

The court interpreted the condominium declaration and held the corporation had the right and obligation to carry out exterior and roof repairs to restore the property, while leaving interior renovation decisions to the unit owner.

The request for injunctive relief was denied and the corporation was authorized to proceed with exterior restoration.

The plaintiffs moved to set aside a registrar’s order dismissing their action for delay under rule 48.14 of the Rules of Civil Procedure after failing to set the action down for trial by a deadline established at a status hearing.

Applying the contextual approach articulated in Court of Appeal jurisprudence, the court considered factors including the explanation for delay, inadvertence in missing the deadline, promptness in bringing the motion, and prejudice to the defendants.

Although the affidavit evidence explaining the delay was limited, the record demonstrated the action had progressed through discoveries and expert reports and that counsel’s failure to meet the deadline was inadvertent rather than deliberate.

The defendants filed no evidence of prejudice and other related actions arising from the same accident remained active.

Balancing the relevant considerations and the principle favouring determination on the merits, the court set aside the registrar’s dismissal order but declined to award costs due to the plaintiffs’ responsibility for the missed deadline.