2 total
Late-served expert report admitted due to unique pre-trial adjournment circumstances.
The plaintiff brought a motion for leave to admit a late-served expert report on broker negligence in an action arising from a motorcycle accident.
The expert report was served five months after the deadline under the Rules of Civil Procedure and one month after a without-prejudice deadline set by the pre-trial judge.
The court applied the two-part test under Rule 53.08(1), finding that while the explanations of difficulty finding an expert and staff turnover were problematic, the unique circumstance that the report was served nearly two years before the reconvened pre-trial tipped the balance in the plaintiff's favour.
Leave was granted.
The court also directed the order of trial, ordering the tort action against the municipality to proceed first, followed by the broker negligence action.
Appeal allowed; third party liable for failing to permanently plug decommissioned oil fill pipe.
The appellants mistakenly delivered heating oil to the plaintiffs' home, which had been converted to natural gas 22 years earlier by the respondents.
The oil was pumped into a decommissioned fill pipe, causing a massive spill and environmental contamination.
The appellants settled the plaintiffs' claim and sought contribution from the respondents for negligently decommissioning the system.
The trial judge dismissed the third-party claim, finding the specific chain of events was not reasonably foreseeable.
The Court of Appeal allowed the appeal, holding that the trial judge erred by focusing on the precise manner of the incident rather than the general foreseeability of a mistaken delivery.
The respondents breached the standard of care by failing to permanently plug the fill pipe.
