A. Charles Gluek

This decision addresses a motion and cross-motion for production of documents in a personal injury case.

The plaintiff sought production of defence medical expert files from Soma Medical Assessments and further documentation related to the defendants' surveillance evidence.

The defendants sought production of documents from the plaintiff's recently settled disability claim against Great West Life.

The court refused the request for Soma files, deeming it a fishing expedition and subject to litigation privilege.

However, it ordered the production of private investigator information, waiving litigation privilege due to significant privacy intrusion and public policy considerations.

The court also ordered the production of documents from the prior disability action, waiving the deemed undertaking rule given the similarity of issues and the insurer's non-opposition.

Costs were made costs in the cause.

The plaintiff sought leave to amend her Statement of Claim to include a new cause of action under a second life insurance policy, beyond the presumptive two-year limitation period.

The court found that the plaintiff met the discoverability criteria under the Limitations Act, 2002, as the relevant underwriting documents were not disclosed until the defendants served their Affidavit of Documents.

However, the court refused the amendment, concluding that the proposed new cause of action was legally untenable because the insured had a clear duty to disclose a material change in health (a seizure) before the delivery of the policy, and the alleged ambiguity in the insurance documents was without merit.

The appellant appealed the dismissal of a personal injury action for delay.

The action arose from an accident in 2002, was issued in 2004 and served late.

At the time of the appeal decision, 14 years had passed since the action commenced and nearly 17 years since the accident.

The motion judge found the plaintiff responsible for the overall delay.

The Court of Appeal upheld the dismissal, finding the delay inordinate and inexcusable, with prejudice presumed from the length of delay and clear evidence of actual prejudice present.

The Personal Insurance Company brought a summary judgment motion seeking a declaration that Linda-Sue Pearce was the owner of a truck involved in a motor vehicle collision, and an order dismissing the action against Personal.

The court found that Pearce, as the registered owner, failed to rebut the presumption of ownership, despite arguments that her son, Trevor James Middleton, was the true owner.

The court granted the declaration that Pearce was an owner of the truck and dismissed the action against Personal, as Pearce's own insurance policy with Wawanesa Insurance would apply.

The defendant appealed a master's order granting a nunc pro tunc declaration deeming a statement of claim issued on the date it was received by the court, despite the registrar refusing issuance due to non-compliance with the rule requiring personal attendance.

The claim and filing fee had been delivered to the court office by courier on the final day of the limitation period, but the registrar returned the documents rather than contacting counsel.

The court held that the master's order corrected a procedural irregularity under the Rules of Civil Procedure rather than extending the limitation period under the Limitations Act, 2002.

The plaintiff had made a good faith effort to commence the action within the limitation period and the defendants suffered no prejudice apart from losing a technical limitation defence.

The appeal was dismissed.

The applicants sought a declaration that their homeowners’ insurer owed a duty to defend third party claims for contribution and indemnity brought against them after their child was injured in a motor vehicle accident.

The insurer denied coverage relying on a family member exclusion clause excluding claims for bodily injury to persons residing in the insured’s household.

The court held that the exclusion clause did not clearly extend to indirect claims by third parties because it lacked wording such as “arising out of” or language expressly encompassing indirect claims.

Interpreting coverage provisions broadly and exclusions narrowly, the court concluded the clause excluded only direct claims between household members.

As the third party claims were brought by non-household defendants, the insurer had a duty to defend.

The court reviewed a motion record concerning the proposed resolution of a minor’s Family Law Act claim arising from injuries to his mother in a motor vehicle accident.

The record revealed that the adult plaintiffs had settled their claims for $600,000, while the minor’s claim was effectively treated as having no value and no payment had been made by the tortfeasor.

Funds had instead been placed into investment vehicles by the litigation guardian from his own settlement without court approval, and part of the funds were paid to counsel.

The court held that the minor’s claim could not be treated as settled in the absence of full disclosure, expert evidence, and proper court approval.

The matter was referred to the Office of the Children’s Lawyer to investigate and advise regarding the proposed arrangement.

The plaintiff sought damages against one defendant for breach of contract arising from a failed investment transaction and against a lawyer who held the funds in trust for breach of contract, negligence, and breach of fiduciary duty.

The funds had been advanced pursuant to a memorandum of agreement for a proposed financial transaction, with the lawyer initially holding the funds in escrow.

The court found that the parties orally amended the agreement to allow an early release of part of the funds before trading commenced.

Because the lawyer released the funds in accordance with the amended agreement and acted solely for the borrower, no contractual, fiduciary, or negligence liability arose.

Judgment was granted against the borrower for repayment of US$150,000, while the claims against the lawyer were dismissed.