Caley Ross

The plaintiffs brought a motion to amend the Trial Record to remove the defendants' Amended Statement of Defence, and a motion to set aside a previous consent order dismissing the action against their own insurer, The Co-Operators.

The defendants brought a cross-motion for leave to amend their statement of defence to plead 'inevitable accident' due to a brain tumour.

The court granted the defendants' motion to amend, finding no non-compensable prejudice to the plaintiffs.

The court dismissed the plaintiffs' motion to amend the Trial Record and their motion to set aside the consent order, finding no material change in circumstances or mutual mistake that would justify setting aside the final order.

The moving defendants sought summary judgment dismissing claims and cross‑claims arising from a motor vehicle collision where a driver turning left collided with an oncoming vehicle and pedestrians were injured.

The court considered whether there was a genuine issue requiring a trial under Rule 20.04 of the Rules of Civil Procedure.

The responding defendant argued the oncoming driver may have contributed to the accident by slowing or failing to keep a proper lookout.

The moving defendants relied largely on unsworn statements and an affidavit from counsel rather than firsthand evidence.

The court held the evidentiary record was insufficient and that a trier of fact could potentially find contributory negligence by the oncoming driver.