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Posts Tagged: evidence

10 Year Old Lawsuit Faces Motion To Dismiss for Delay: A Close Call Averted

If your lawsuit is not moving forward in an expeditious manner, the defendants can bring a motion to dismiss for delay, as occurred in this recent case: Mayhew v. Paddon + York Inc., 2014 ONSC 57 (CanLII).

In this case, the allegations against the plaintiffs included failure to comply with several previous Court orders, as well as a delay in answering undertakings arising from Discovery.

Judge Morawetz lays out the test to consider as follows:

[28] The court’s authority to dismiss an action for delay is found in Rule 24.01 of the Rules of Civil Procedure, R.R.O.… Continue Reading

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Brampton Sidewalk Slip and Fall – Knee Surgery: Claim Dismissed

A 51 year old electrician recently had his personal injury lawsuit, against the City of Brampton, dismissed on a summary judgment motion that considered the new directions given by theHryniak decision by the Supreme Court of Canada. The issue was whether the plaintiff’s failure to give notice to Brampton, within 10 days of slip and fall, was fatal to his claim against the City. Due to lack of knowledge, this plaintiff did not give notice to the City of Brampton until approximately 18 months post-accident.… Continue Reading

Ontario Summary Judgment: Applies Hryniak re Scheduling of Motion Issues

As we recently blogged on February 24, 2014, the new Hryniak decision by the Supreme Court of Canada is now the standard for how Ontario summary judgment motions are to be conducted and their role in the litigation process.

We now have an early case which has put into practice some of the greater powers confirmed by Hryniak – in this case, the issue is what role the summary judgment Judge has in the management of motion materials and the necessity of calling witnesses for oral testimony, in order to have a proper record available by which to consider the summary judgment motion:The Bank of Nova Scotia v.… Continue Reading

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Ontario Trial Adjournment: Personal Injury > $50,000 Costs Thrown Away

This case involves a last minute adjournment motion by the defendant (insurer) based on a medical report served by the plaintiff about 2 weeks before Trial, involving a claim for personal injury suffered in this Ontario lawsuit.

The defendant served an updated medical report about 3 weeks before Trial; it is unclear whether this was based upon a concurrent defence medical examination or whether it was an updated report based on a paper review: Quan v. Staar Surgical Company, 2014 ONSC 27 (CanLII).… Continue Reading

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Big Win for Ontario Insurer: Bifurcation of Personal Injury Trial Ordered

Splitting a trial – between liability and damages – is a tactic which favours the defendant insurers. If you have a serious injury, can the defendant force you to go to Trial twice? Can the defendant de-risk the file in the face of a significant damages claim?

A new case that should cause plaintiff personal injury lawyers to shudder: Woodbury v. Woodbury, 2013 ONSC 7736 (CanLII)

If you have a serious injury, can the defendant force you to go to Trial twice?… Continue Reading

Facebook Strikes Again: Partial Disclosure Ordered, Preservation of Site Required – Part 6

In this case Young v. Comay, 2013 ONSC 7552 (CanLII) the plaintiff testified at Discovery that she did have an ongoing Facebook account, prior to the accident, and that family photos and possibly other photos were posted therein.

Broad, J. ordered disclosure as follows:

[22] I would therefore order that the plaintiff serve a Supplementary Affidavit of Documents disclosing all photographs of herself, in her possession, power or control which are relevant to any matter in issue, including photographs depicting her engaged in physical, recreational, housekeeping, home maintenance or work-related activities for two years prior to the accident and during any period following the accident in respect of which she is claiming damages on the bases set forth in the Statement of Claim.… Continue Reading