T. Maurer

The plaintiff sought damages arising from a motor vehicle collision in which liability was admitted.

A jury assessed general damages at $35,000 but awarded nothing for competitive disadvantage or handyman services.

The trial judge was required to determine whether the claim met the statutory threshold under s.267.5 of the Insurance Act for recovery of non‑pecuniary damages.

The court held that the plaintiff failed to prove that his ongoing symptoms were caused by the collision, given significant prior back injuries and more persuasive defence expert evidence.

In any event, the alleged impairments did not amount to a permanent serious impairment of an important physical, mental, or psychological function.

The action was dismissed for failure to meet the statutory threshold.

Following unsuccessful defence motions seeking dismissal of a long‑standing medical malpractice action for delay, the parties made submissions regarding costs.

Although the plaintiffs succeeded in resisting dismissal, the court found they had demonstrated a persistent lack of diligence in prosecuting the claim, which had been outstanding for over 12 years.

The defendants had established inordinate and inexcusable delay but failed to prove prejudice sufficient to justify dismissal.

In exercising discretion under section 131 of the Courts of Justice Act and Rule 57 of the Rules of Civil Procedure, the court concluded the defendants had reasonably brought the motions in light of the plaintiffs’ conduct.

Accordingly, the court declined to award costs to either party.

The defendants brought motions to dismiss a medical negligence action for delay after the matter had remained unresolved for more than twelve years and had been struck from the trial list without restoration.

The court found that the delay was both inordinate and largely inexcusable, identifying several extended periods where the plaintiffs failed to advance the litigation with diligence.

However, the defendants did not establish actual prejudice and the plaintiffs successfully rebutted the presumption of prejudice by demonstrating that contemporaneous medical records and discovery transcripts remained available to refresh witnesses’ recollections.

Because the evidence did not establish a substantial risk that a fair trial was no longer possible, the court declined to impose the severe remedy of dismissal for delay.

The motions were dismissed but the court warned that further delay could justify a renewed motion.