The plaintiff alleged to have sustained damages as a result of a slip and fall incident on a TTC bus. As of the time of trial, the plaintiff had failed to comply with an interlocutory costs order and failed to produce any evidence to establish her entitlement to damages. At trial, she intended to rely on her own viva voce evidence and evidence adduced by the defendant. The defendant brought two preliminary motions: (1) to have the matter dismissed on the ground that the plaintiff failed to comply with an order to pay costs thrown away from an earlier adjournment; and (2) for summary judgment or partial summary judgment, dismissing all or part of the plaintiff’s action, or alternatively striking the action from the trial list. Justice Brown granted the motion for summary judgment, reasoning that without evidence of a physician, the plaintiff could not adduce the evidence required to establish a serious, permanent impairment of an important function. As such, her claims for non-pecuniary damages and healthcare expenses must fail. She also could not substantiate her claims for special damages due to her failure to produce appropriate documentation. Justice Brown was not satisfied that there would be any evidence in support of the plaintiff’s case on which a jury, acting judicially in accordance with instruction on the law, could reasonably make choices to arrive at necessary findings to find in the plaintiff’s favour at trial.
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