Bruce Chambers

The plaintiff was injured in a vehicle accident and sued for negligence.

The trial judge found the defendants entirely responsible for the accident but held that the plaintiff had not suffered a "permanent and serious injury" under the Insurance Act, thus precluding non-pecuniary damages.

The trial judge awarded $1,680 for lost income and $40,000 in costs to the plaintiff.

The defendants cross-appealed, challenging the trial judge's decision to allow a late amendment to include a lost income claim and the costs award.

The Court of Appeal upheld the trial judge's discretion in allowing the late amendment, finding no prejudice to the defence.

However, the Court of Appeal granted leave to appeal the costs order, concluding that the trial judge erred by overemphasizing the defendants' failure to make a settlement offer, given that the lost income claim (the only successful claim) was not clearly articulated until the end of trial.

The Court of Appeal varied the trial order to provide for no costs at trial and awarded the defendants costs of the appeal.

This is a supplementary endorsement to a previous decision, clarifying and varying aspects of a costs award.

The court confirmed that HST is to be added to the partial indemnity costs and disbursements awarded to the plaintiff.

The amount of allowed disbursements was varied by agreement of the parties.

The court also addressed a request for reconsideration regarding the defendant's liability for the plaintiff's legal fees incurred in pursuing accident benefits, reiterating that all submissions and authorities, including the principles from Cadieux v. Cloutier, were considered in the original determination, and no further reconsideration was required on that point.

Following the settlement of a motor vehicle accident tort claim for $85,000, the plaintiff brought a motion to determine costs.

The plaintiff sought partial indemnity costs for the tort action, as well as recovery of substantial legal fees incurred in pursuing statutory accident benefits (SABs) and Canada Pension Plan (CPP) disability benefits.

The court awarded the plaintiff $84,075 in fees and $58,983.63 in disbursements for the tort action, rejecting the statutory third party insurer's argument that its exposure was limited to the $200,000 statutory minimum.

However, the court declined to award costs for the pursuit of SABs, finding the plaintiff failed to address the factors set out in Cadieux v. Cloutier, and denied costs for pursuing CPP benefits as they were not incidental to the proceeding.

The defendant in a motor vehicle accident action brought a motion to amend her statement of defence and to compel the plaintiff to disclose the settlement particulars of a companion commercial host action.

The plaintiff opposed the disclosure of the settlement details and the related amendment to the statement of defence.

The court dismissed the request for settlement particulars, finding them protected by settlement privilege and irrelevant to the assessment of damages in the current action.

The court also struck the proposed amendment requiring the plaintiff to account for the use of the settlement funds, as it was an improper attempt to obtain privileged information.

At the opening of a scheduled trial, the defendants requested an adjournment because the plaintiff produced a laptop computer containing over 14,000 files the day before trial.

The plaintiff's claim included $1.8 million for past and future income loss, making the newly disclosed work documents highly material.

The court granted the adjournment, finding that trial fairness required the defendants to have an opportunity to inspect the new productions and conduct further examination for discovery.

The defendants were awarded costs thrown away, with the amount to be determined by the trial judge.

The court issued a Trial Management Endorsement providing procedural directions for an upcoming 11-day virtual trial to be conducted via Zoom and CaseLines due to the COVID-19 pandemic.

The endorsement outlined requirements for the electronic trial record, witness management, document uploading, exhibit marking, and the preparation of a Joint Document Book in accordance with appellate guidance.

The plaintiff in a motor vehicle accident case brought a motion to exclude potential jurors who pay auto insurance premiums, arguing they have an inherent conflict of interest.

The plaintiff sought to introduce survey evidence suggesting residents would limit damages to lower their premiums.

The court excluded the survey evidence as inadmissible hearsay that failed the threshold test for expert evidence.

The court dismissed the motion, finding no statutory basis in the Juries Act to exclude such jurors or permit a broad challenge for cause, and no evidence of widespread bias to justify striking the jury notice.

The defendants moved to set aside a noting in default in a tort action arising from a motor vehicle accident after the insurer settled the injured plaintiffs’ claims, obtained an assignment of their cause of action, and sought judgment against the insured defendants for the settlement amount.

The court held that the insurer could not rely on s. 258(13) of the Insurance Act because no judgment had been obtained by the original plaintiffs against the insured defendants.

The non‑waiver agreement also did not permit recovery in the existing action, as the proceeding did not determine coverage obligations between insurer and insured.

Applying the discretionary test under Rule 19.03(1), the court found the defendants had demonstrated a continuing intention to defend and reasonably relied on their insurer to do so.

The noting in default was set aside, also independently invalid because the statement of claim had been served outside the six‑month limit in Rule 14.08 without an extension.