Ashlee L. Barber

The plaintiff pedestrian sought leave to amend a statement of claim arising from a motor vehicle accident to add the defendant driver’s insurer as a defendant and to seek declaratory relief regarding insurance coverage.

The insurer denied coverage and argued that under s. 258(1) of the Insurance Act a plaintiff cannot sue an insurer until judgment is obtained against the insured.

The court held that while the statute prevents a direct claim for payment before judgment, it does not preclude a claim for declaratory relief regarding coverage between interested parties.

Given the broad jurisdiction to grant declarations and the goals of efficient and proportionate litigation, the proposed amendments were legally tenable and would allow earlier resolution of the coverage dispute.

Leave to amend was therefore granted with the exception of a paragraph seeking a declaration that the insurer was obligated to pay any judgment.

Following the dismissal of a motion seeking to add two former solicitors as defendants in a professional negligence action, the non-party solicitors sought costs.

The court confirmed that the solicitors had successfully resisted the motion and were entitled to costs on a partial indemnity basis.

In assessing costs under Rule 57, the court considered the importance of the issues, the significant damages claimed, extensive cross‑examinations, documentary record, and preparation required due to late abandonment of certain claims.

A moderate downward adjustment was applied to the hours claimed.

The court fixed reasonable costs payable by the plaintiffs to each solicitor.

The appellant appealed a trial judgment dismissing her solicitor negligence claim against the respondent.

She argued the trial judge erred in finding the respondent was not obliged to put in writing that he was not retained for tort and accident benefit claims, and in failing to decide whether his duty of care extended to reviewing limitation periods.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that the appellant understood the scope of the retainer and that the respondent had in fact reviewed the limitation periods with her.