Andrei Lezau

The court considered whether Fluid Hose & Coupling Inc. was an insured under a builders’ risk insurance policy and thus immune from a subrogated action for property damage.

The court found that the policy’s broad language included Fluid Hose as a subcontractor, barring the action against it.

The court declined to award full indemnity costs, instead fixing costs on a partial indemnity basis.

The defendant Garda World Canada Security Corporation brought a motion to strike the amended statement of claim against it, arguing that the plaintiff failed to plead a reasonable cause of action and that it was plain and obvious the claim could not succeed.

Garda contended that as a new shareholder, it was not liable for the alleged breach of contract or negligence of the Primary Response Defendants.

The plaintiff argued that Garda was liable due to a share acquisition and/or amalgamation, citing section 179(b) of the Ontario Business Corporations Act, which transfers all liabilities to an amalgamated corporation.

The court dismissed Garda's motion, finding it was not plain and obvious that the claim against Garda could not succeed, and granted the plaintiff liberty to amend the statement of claim if necessary.

Costs were awarded to the plaintiff.

The plaintiff sought an order for the examination for discovery of a deaf defendant, residing in London, England, to take place by video conference with a sign language interpreter.

The defendants proposed written questions or an oral examination in London.

The court granted the plaintiff's request, emphasizing the importance of oral discovery for credibility assessment, cost-effectiveness of video conferencing, and the need for video recording of interpreted testimony to ensure accuracy.

The plaintiff's separate request for costs related to a prior certificate of non-attendance was denied due to improper scheduling and non-compliance with discovery rules.

The defendants brought a motion seeking an order for the plaintiff to attend additional defence medical examinations and to strike the impending trial date.

The plaintiffs raised a preliminary objection that the defendants required leave under Rule 48.04(1) because the action had been set down for trial.

The court dismissed the preliminary objection, finding the defendants had not consented to the action being placed on the trial list.

On the substantive issue, the court dismissed the motion for further medical examinations, holding that the defendants failed to provide sufficient medical or factual evidence to justify the request under Rule 33.02(2) and the Bonello principles.