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Background:

Heather suffered serious medical problems from mould and other toxins present in Government owned housing in which she resided in the 1980’s. She hired a law firm to represent her in the proceeding. Unfortunately, they failed to take action within the limitation period for doing so, with the result that Heather had to seek out another firm to bring action against the law firm. While the claim was ongoing, Heather undertook to provide medical records relating to her complicated pre-accident medical history. These dated back many years. Some of the doctors had moved or closed their practices. Compiling the information was a difficult and time-consuming exercise. The defendants were not satisfied with the progress in answering the undertakings, and said that important records had been lost as a result of the delay in obtaining the information. They were able to convince a Superior Court judge of their position. Heather’s claim was dismissed. I became involved at that point to launch an appeal of the decision.

Approach:

The voluminous Court records going back decades had to be reviewed. Two points became clear: Heather’s current lawyers had made all reasonable efforts to track down information relating to her medical history; and there was no basis for the defendant’s argument that medical information had been destroyed as a result of delays in seeking it out. It was clear to me that the judge’s decision dismissing the action was mistaken. Sorting through the documentation to present this point clearly to the Court of Appeal was the challenge. A factum summarizing the position, as well as a reply factum, were prepared for the appeal.

Result:

After listening to the arguments and considering the evidence, the Court of Appeal agreed that Heather’s claim had been improperly dismissed. The claim was accordingly reinstated, and the judge’s order dismissing the claim was set aside.

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