Bronwyn Martin

The appellant slipped and fell on ice and snow on the driveway of a rented residential property.

He sued the landlord and later added the tenant as a co-defendant.

The motions judge granted summary judgment dismissing the action against both defendants.

On appeal, the Court of Appeal upheld the dismissal against the tenant, finding the claim was statute-barred because the appellant failed to rebut the presumption that he discovered his claim on the date of the accident.

However, the Court allowed the appeal regarding the landlord, finding genuine issues for trial concerning the interplay between the lease terms, the Occupiers' Liability Act, and the landlord's maintenance obligations under the Residential Tenancies Act.

Following the defendants' successful motion for summary judgment which dismissed the action, the parties made submissions on costs.

The parties had previously agreed that the successful party on the motion would receive $10,000 in partial indemnity costs.

The court found this agreement did not preclude the defendants from seeking additional costs for the dismissal of the action.

The court awarded the defendants an additional $15,000 in fees plus $3,873.92 in disbursements on a partial indemnity basis.

The plaintiff was injured in a slip and fall at a Mike's No Frills store but mistakenly named Dickie's No Frills as the defendant in the statement of claim.

After the limitation period expired, the plaintiff sought and was granted leave by a Master to amend the claim to name the correct store operators based on the doctrine of misnomer.

The appellants appealed the Master's decision.

The Divisional Court dismissed the appeal, finding no error in the Master's application of the 'litigating finger' test, as the intended defendants shared an insurer with the named defendant and their staff were aware of the incident, meaning they would have known they were the intended defendants.

In a slip-and-fall action arising from an icy residential driveway at the plaintiff's workplace, the court granted summary judgment dismissing the claim against the tenant as statute-barred under ss. 4 and 5 of the Limitations Act, 2002 because the plaintiff knew or ought to have known from the outset that the premises were rented and that the occupier-tenant should have been sued.

The court also dismissed the landlord's third party claim for contribution and indemnity against the actual occupiers and the real estate parties as barred by s. 18, holding that s. 18 creates an absolute two-year limitation period not subject to discoverability.

On the merits, the absentee landlord was held not to be an occupier under s. 1 of the Occupiers’ Liability Act and not liable under s. 8 because the lease placed snow and ice removal on the tenant and no actionable landlord default was established.

The main action and third party proceeding were both dismissed.

The plaintiff brought a motion to amend the statement of claim and substitute the correct corporate defendant in a slip and fall action arising from an accident in a No Frills grocery store.

The proposed defendant argued that the motion improperly attempted to add a new party after the expiry of the two‑year limitation period under the Limitations Act, 2002.

The court held that the plaintiff failed to establish discoverability to extend the limitation period, as there was no evidence rebutting the statutory presumption that the plaintiff knew the identity of the proper defendant when the accident occurred.

However, applying the misnomer doctrine under s. 21(2) of the Limitations Act, 2002 and the principles from appellate authority, the court found that the intended defendant would have understood that the litigation was directed at it despite errors in the name and address.

The amendment therefore constituted correction of a misdescription rather than the addition of a new party.

Leave to amend the claim and correct the defendant’s name and address was granted.

The moving party sought leave to appeal a prior order certifying a class proceeding under the Class Proceedings Act.

It argued that the certification judge erred in finding the pleadings disclosed a cause of action and in determining that common issues existed, particularly regarding an alleged duty of a custodial trustee to warn investors about an investment scheme.

The court held that the certification judge properly applied the test under the Class Proceedings Act and that it was not plain and obvious the claim had no chance of success.

The alleged “super-added duty” was properly characterized as part of the broader tort duty of care that could arise depending on factual findings at trial.

The court also rejected arguments that the certification process or authorities relied upon created conflicting jurisprudence warranting appellate review.

An insurer applied for a determination of priority between automobile insurers under s. 277 of the Insurance Act following a motor vehicle accident involving a rented vehicle driven by an employee on business travel.

The employee rented the vehicle personally using a corporate credit card issued by his employer and was later reimbursed.

The applicant insurer argued that the employer was the de facto lessee and therefore its insurer should respond first to the third‑party liability claim.

The court held that the plain meaning of "lessee" under s. 277 refers to the person who entered into the rental agreement with the car rental company.

Because privity of contract existed between the employee and the rental company, the employee was the lessee and his personal insurer ranked first in priority.

Following a complex motion regarding insurance coverage for asbestos claims where the plaintiff was unsuccessful, the successful defendant insurers sought their costs.

The plaintiff argued for a reduction based on divided success on factual issues and refusal to admit facts.

The court rejected the plaintiff's arguments, finding the defendants were the clear winners and their refusal to admit facts was not unreasonable.

The court awarded partial indemnity costs to the defendants, making some reductions to specific bills for duplication of effort among multiple counsel, totaling approximately $546,887.

The plaintiff brought a motion to amend the statement of claim to add the proposed U-Haul defendants and substitute them for the defendant 'John Doe' as the owner of the motor vehicle involved in an accident, after the expiry of the limitation period.

The court found that the plaintiff failed to meet the evidentiary threshold for discoverability under Wakelin, as no evidence was led to explain why the identity of the defendants could not have been obtained with due diligence.

However, the court granted the motion based on the doctrine of misnomer under Lloyd, finding a coincidence between the plaintiff's intention to name the vehicle owner and the U-Haul defendants' knowledge that they were the intended defendants.

The court declined to exercise its discretion to refuse the correction.