Shauna K. Powell

The moving defendants brought a motion in writing to amend an earlier order that authorized substitute service of their statement of defence, crossclaim, and counterclaim on a co-defendant.

They sought to extend the time for service, believing it was necessary because the plaintiffs had already noted the co-defendant in default.

The court dismissed the motion as misconceived and unnecessary, clarifying that the relevant rules restrict delivery only if the moving defendants themselves had been noted in default, which had not occurred.

Valid service had already been effected under the terms of the original order.

The defendant brought a motion for summary judgment to dismiss the plaintiff's medical malpractice action on the basis that the limitation period had expired.

The defendant argued the plaintiff discovered the claim when he learned a nerve had been cut during surgery.

The court found that knowledge of a cut nerve, without reason to believe it was more than an unfortunate surgical outcome, was insufficient to start the limitation period.

The defendant's motion was dismissed, and partial summary judgment was granted to the plaintiff dismissing the limitation period defence.

The defendant requested the court to dismiss the plaintiff's action as frivolous, vexatious, or an abuse of process under Rule 2.1.01 of the Rules of Civil Procedure.

The plaintiff's claim, stemming from an involuntary detention in 2010, was found to lack material facts and a plausible cause of action.

The court also determined the claim was barred by the Limitations Act, rejecting the plaintiff's discoverability argument based on a Consent and Capacity Board decision.

Consequently, the court dismissed the action and related motions.

The defendant insurer brought a motion for summary judgment arguing that the plaintiffs failed to meet the corroboration requirement under the OPCF 44R Family Protection Coverage Endorsement for accidents involving unidentified vehicles.

The plaintiffs alleged the driver was forced off the road by a red pickup truck that was never identified, relying on tire marks and expert reconstruction evidence as physical corroboration.

The court held that “physical evidence” under the endorsement does not need to originate from the unidentified vehicle itself, provided it indicates the involvement of another vehicle.

Tire marks consistent with evasive action could constitute corroborative physical evidence.

Given conflicting expert opinions regarding accident reconstruction, the court found a genuine issue requiring a trial and declined to resolve credibility issues on summary judgment.

The appellants were injured in motor vehicle accidents and commenced both accident benefits arbitration proceedings and civil actions for damages.

In the arbitration proceedings, they were compelled to submit to medical examinations.

The respondents in the civil actions sought production of the resulting medical reports.

The appellants refused, relying on the implied undertaking rule.

The Court of Appeal held that neither the deemed undertaking rule under the Rules of Civil Procedure nor the common law implied undertaking rule applied to protect the medical reports from disclosure in the tort actions, as the rule protects against use by the recipient of the information, not against all uses by the source of the information.

The appeals were dismissed.