P. Michael Rotondo

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 plaintiff brought a motion to strike the defendant's Statement of Defense due to the defendant's failure to pay an $11,000 costs award previously ordered by a Master.

The defendant sought to amend the Master's order to make the costs payable in any event of the cause, citing impecuniosity.

The court declined to amend the Master's unappealed order, noting insufficient evidence of the defendant's inability to obtain financing.

The court ordered the defendant to pay the costs by November 1, 2021, failing which her Statement of Defense would be struck.

The plaintiff brought a motion to strike the defendants' jury notice in a personal injury action.

Due to the COVID-19 pandemic, civil jury trials in the Central East Region were suspended until well into 2022.

The court granted the motion, finding that the prejudice to the plaintiff caused by further delay outweighed the defendants' right to a jury trial, especially given the age of the case and previous adjournments.

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 defendants brought a motion to remove the plaintiff's counsel of record, arguing that counsel's ongoing business relationship with the plaintiff would inevitably make him a witness regarding the plaintiff's loss of income claim.

The court applied the factors from Essa (Township) v. Guergis and found the motion premature, as the plaintiff's income loss claim was currently based solely on tax returns.

The motion was dismissed with leave to renew if the plaintiff pursues an income loss claim inconsistent with his tax returns.

The defendant insurers moved for an order compelling the plaintiffs to appoint an appraiser under s. 128(5) of the Insurance Act, following a property loss claim.

The plaintiffs resisted, arguing abuse of process, delay, and that the case involved interpretive issues rather than just valuation.

The court granted the defendants' motion, affirming that appraisal is the preferred process for quantifying damages in property insurance cases, even when litigation is ongoing and coverage is disputed, and that it is not an abuse of process in this instance.

Following a successful motion for summary judgment dismissing the action as statute-barred, the defendants sought costs on a partial indemnity scale for both the motion and the action.

The plaintiff did not object to the costs for the motion but argued that Rule 20.06 of the Rules of Civil Procedure precluded awarding costs for the action as a whole.

The court rejected that interpretation, holding that the rule does not foreclose costs where a summary judgment motion results in dismissal of the action.

Objections to discovery-related fees and preparation for trial charges were also dismissed.

The court found the defendants’ bill of costs reasonable and awarded the full amount requested.

The defendants brought a motion for summary judgment seeking dismissal of a slip-and-fall claim as statute-barred under the Limitations Act, 2002.

The plaintiff argued that the injury initially appeared de minimus and was not discovered until later when an x-ray revealed a fracture.

The court held that the plaintiff experienced pain and swelling immediately after the incident and sought medical treatment within days, which was sufficient to trigger discoverability.

Applying the principles governing summary judgment and the "full appreciation test", the court found the issue suitable for determination on the motion record.

The alleged injury was not trivial and the limitation period began when the accident occurred.