Shauna Powell

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 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.