Ashley Richards

The third parties brought a motion to dismiss the defendants' third party claim based on an indemnity contract, which was unsuccessful.

The defendants sought costs of $41,041.95, which included an $18,666.50 disbursement for an expert report.

The court found that the expert report played no role in the narrow motion argued and deferred its costs to the trial judge.

Applying the factors under Rule 57.01, the court fixed the defendants' costs for the motion at $15,000 inclusive of disbursements and HST, payable by the third parties.

Following a personal injury action arising from a fitness class accident, the defendants issued a third party claim against the program developer alleging negligent training of the instructor.

The third parties moved for summary judgment relying on a contractual indemnity clause requiring the fitness club to indemnify them for claims arising from activities at the facility.

The court held that indemnity for a party’s own negligence must be expressed in the clearest terms, and the clause relied upon did not meet that standard and was ambiguous.

The court also declined to consider an alternative argument limiting liability because it was not properly pleaded or supported by evidence in the motion record.

The defendant university brought a motion to strike the plaintiff’s Fresh As Amended Statement of Claim alleging breach of fiduciary duty and breach of contract arising from a dispute over graduate program funding and supervision.

The court held that the pleading improperly contained extensive evidence rather than concise material facts and failed to adequately plead the essential elements of either fiduciary duty or contract.

The allegations did not establish the existence of a trust or any undertaking by the university to prefer the student’s interests, nor did they sufficiently identify the contractual terms allegedly breached.

The court also noted that disputes rooted in academic decision-making may fall outside the court’s jurisdiction and be more appropriately addressed through judicial review.

The motion to strike was granted, but the plaintiff was granted leave to amend the claim again.