2 total
Unpleaded claim for set-off set aside; trial judge erred in allowing affirmative defence raised during closing submissions.
The appellant appealed a trial judgment determining his net entitlement to insurance proceeds following a house fire.
The trial judge had allowed the insurer to set off an overpayment for the house's replacement cost against the appellant's damages for contents, despite the insurer failing to plead set-off as an affirmative defence.
The Divisional Court held that the trial judge erred in law by allowing the unpleaded set-off, as it caused trial unfairness and prejudiced the appellant's litigation and settlement strategy.
The appeal was allowed in part to set aside the set-off, but dismissed regarding the trial judge's factual findings on artwork valuation and additional living expenses.
Motion to add defendant dismissed as plaintiff failed to rebut presumption of discoverability on accident date.
The plaintiff in a motor vehicle accident claim brought a motion to add a proposed defendant to the action after the apparent expiry of the two-year limitation period.
The plaintiff argued that the claim against the proposed defendant was not discovered until after the Statement of Defence was received.
The court found that the plaintiff failed to lead evidence to overcome the statutory presumption that the claim was discovered on the date of the accident, especially given that the plaintiff had sent a notice of action to the proposed defendant's insurer prior to issuing the Statement of Claim.
The motion to add the proposed defendant was dismissed.
