Audrey P. Ramsay

The plaintiffs brought a motion to amend their statement of claim in a fatal motor vehicle negligence action and to permit the late delivery of a jury notice.

The proposed amendments included adding a claim for punitive damages, pleading admissions and res judicata based on a corporate defendant’s guilty plea to a provincial offence arising from the accident, and providing further particulars of an income loss claim under the Family Law Act.

The court held that amendments should generally be permitted unless non-compensable prejudice would result and found the proposed amendments were tenable and raised issues better determined at trial.

The court also found that the amendments reopened the pleadings, allowing delivery of a jury notice.

Leave to amend and to deliver a jury notice was granted, with costs to the plaintiffs.

In a motor vehicle tort action, the appellant sought an order compelling his automobile insurer to fund and provide an independent defence after the insurer denied coverage on the basis of alleged policy and statutory breaches, including conduct surrounding impaired driving and failure to report the accident.

The court held that no immutable rule should govern whether the duty to defend is suspended where breach of condition is alleged; the issue must be resolved contextually, having regard to the strength of the parties' positions and the need to furnish a separate defence.

On the facts, the alleged breaches were clear and uncontested, no evidentiary basis was advanced for estoppel or relief from forfeiture, and the insurer had already been added as a statutory third party under s. 258(14) of the Insurance Act and was defending liability and quantum in terms aligned with the insured's interests.

The appeal was dismissed with costs.