The appellant appealed an order dismissing her personal injury action on a pre-trial motion under s. 266(3) of the Insurance Act.
The Court of Appeal held that the motions judge improperly disregarded uncontradicted affidavit and medical evidence concerning a significant deterioration in the appellant's condition in the 18 months preceding the motion.
Applying the appellate intervention principle for disregarded evidence, the onus framework under Chilman, and the three-step analysis from Meyer v. Bright, the court concluded that the record was capable of establishing a permanent serious impairment of an important bodily function caused by continuing physical injury.
Because the entire record was documentary and the respondents had not challenged the late medical evidence by cross-examination or responding evidence, the court set aside the order and dismissed the respondents' motion.
The appellant was awarded costs of the motion and the appeal.
