Shen Subramaniam

The defendant brought a motion seeking reimbursement for a $3,371.92 cancellation fee incurred due to the plaintiff's last-minute failure to attend a defence medical assessment.

The plaintiff cancelled 38 minutes prior to the appointment, citing illness, supported by a non-contemporaneous medical note.

The court found the examination was properly constituted under Rule 33 and the possibility of a cancellation fee was communicated.

However, the plaintiff's reason for cancellation lacked sufficient evidentiary support, and the original cancellation fee was deemed excessive for a half-day assessment.

The court granted the motion in part, reducing the payable cancellation fee to $1,507.42 and ordering the plaintiff to pay $1,500 in costs to the defendant.

In an occupier's liability action outstanding for over 11 years, the plaintiff moved to strike the defendants' jury notice, arguing that delay alone constituted prejudice.

The defendants opposed, asserting the motion was premature given the reopening of the economy and recent jury trials.

The court acknowledged the significant delay but noted the plaintiff's lack of affidavit evidence on prejudice.

Balancing the interests, the court provisionally struck the jury notice until February 21, 2022, to await clarity on the resumption of in-person hearings, emphasizing that the personal circumstances of counsel do not override a party's substantive right to a jury trial.

The plaintiffs moved for leave to amend their Amended Statement of Claim to increase damages and add a claim for punitive damages, and also sought leave to file a jury notice after pleadings had closed and the matter had been set down for trial.

The court granted leave to amend but refused the request to file a jury notice.

Applying principles from prior authorities, the court held that amendments reopening pleadings do not automatically revive the right to serve a jury notice where the amendments serve only a limited purpose and the proceeding is already trial-ready.

The request was brought on the eve of trial and the plaintiffs provided no cogent explanation for the delay.

The plaintiffs failed to rebut the presumption of prejudice to the defendants, who had prepared the case as a non‑jury matter.