Daniel Anthony Fiorita

Following a motion where the defendant ProBuilt was permitted to withdraw an admission and amend its pleadings regarding the manufacturer of a wobblelight, the parties made submissions on costs.

The responding parties sought substantial indemnity costs and significant 'reset' costs due to the late amendment.

The court found that while the responding parties were successful in opposing the amendment under Rule 26.01, ProBuilt was granted an indulgence under Rule 51.05.

Balancing the mixed success, the delay, and the reasonable reset costs required, the court ordered ProBuilt to pay $20,000 in partial indemnity costs to each of the three responding parties.

The defendant, ProBuilt Lighting, brought a motion to withdraw an admission in its Statement of Defence that it manufactured a 'wobblelight' alleged to have caused a fire at a hospital.

The defendant discovered during discoveries that it did not exist at the time the light was manufactured.

The court granted the motion, finding that the admission was based on incomplete and erroneous information, there was a triable issue regarding the manufacturer, and the plaintiffs would not suffer prejudice that could not be compensated by costs.

The plaintiff landlord brought a motion for early documentary discovery before the close of pleadings, seeking the identities of the tenant's employees who resided at the leased property when a fire occurred, as well as the production of the tenant's insurance policies.

The court granted the request for the employees' names and contact information, applying the principle of proportionality under Rule 1.04 to allow the plaintiff to properly name the John Doe defendants and avoid future delays.

However, the court dismissed the request for early production of the insurance policies, finding it premature prior to the delivery of an affidavit of documents.

The appellant Economical Insurance appealed a motion judge's determination of the priority in which three insurance policies would respond to a motor vehicle accident claim.

The driver was covered under the vehicle owner's State Farm automobile policy, the owner's State Farm personal liability umbrella policy, and the driver's own Economical automobile policy.

The motion judge ordered that the State Farm auto policy respond first, followed by the Economical auto policy, and then the State Farm umbrella policy.

Economical argued that the umbrella policy was an owner's first loss policy under section 277(1) of the Insurance Act and should respond before the Economical policy, or alternatively, that both policies should respond rateably under section 277(2).

The Court of Appeal dismissed the appeal, holding that the umbrella policy was not an owner's first loss policy as defined by the Act and that section 277(2) did not apply to the Economical policy.

This motion concerned the priority of insurance policies following a motor vehicle accident.

The primary issue was whether a State Farm Personal Liability Umbrella Policy (PLUP) was a primary owner's policy or an excess policy, and its response sequence relative to a State Farm Automobile Policy and an Economical Insurance Automobile Policy.

The court determined that the State Farm PLUP was a true excess policy, not a motor vehicle liability policy under the Insurance Act, and would respond only after the primary coverages of both the State Farm Automobile Policy and the Economical Insurance Automobile Policy were exhausted.

The Economical Insurance Automobile Policy was found to be a primary, first-loss policy, responding alongside the State Farm Automobile Policy.

The plaintiff moved for leave to amend his Statement of Claim to add claims for punitive and aggravated damages, and for further discovery, after the action had been set down for trial.

The proposed amendments arose from the defendant's late production of an accident investigation report.

The defendant opposed the motion, arguing the plaintiff failed to seek leave under Rule 48.04 and that the amendments raised a statute-barred new cause of action.

The court granted the motion, finding the amendments merely provided new legal characterizations of existing claims rather than a new cause of action, and the defendant demonstrated no non-compensable prejudice.

RBC General Insurance Company brought an action against its insured, Pamela Field, to recover accident benefits and property loss payments.

RBC alleged that Field made false statements and committed fraud by claiming her driver's license was suspended in error at the time of a motor vehicle accident, and by providing fabricated documents and bank statements to support her claims.

The court found that Field knowingly made false representations and engaged in fraudulent conduct, breaching her insurance policy and the reciprocal duty of good faith owed to her insurer.

RBC was awarded repayment of accident benefits and property loss, totaling $239,788.56, plus $24,000 in punitive damages.

However, RBC's claim for damages related to medical and occupational assessment expenses was disallowed due to insufficient proof of necessity and foreseeability.

The plaintiffs appealed an order dismissing their action for delay following a status hearing.

The action arose from alleged property damage during a swimming pool cleaning.

The Divisional Court found that the Master erred in her application of the test for dismissal for delay by failing to consider the overall context of the litigation, incorrectly identifying the period of delay, and mechanically applying a presumption of prejudice.

The appeal was allowed, the dismissal order was set aside, and the action was ordered to proceed to mediation and trial.

In a motor vehicle personal injury action, the plaintiff’s underinsured insurer brought a motion compelling production of documents from the tortfeasor’s insurer, which had denied coverage based on lack of consent and alleged material misrepresentation.

The moving insurer sought underwriting materials, broker records, correspondence, and policy documentation relevant to whether the tortfeasor’s policy limits were properly reduced by operation of law.

The court held that the plaintiff and the underinsured insurer were entitled to disclosure necessary to test the tortfeasor insurer’s off‑coverage position.

Relying on appellate authority requiring proof that policy limits are reduced by operation of law, the court ordered production of specified documents from the insurer notwithstanding its status as a statutory third party.

The appellant appealed a Master's decision dismissing his motion to set aside a Registrar's Order that had dismissed his personal injury action for delay.

The appellant's former counsel had failed to advance the action, missed deadlines, and ignored the dismissal order for years due to a lack of any system for tracking deadlines.

The Divisional Court found that while the Master made some factual errors regarding prejudice, her overall exercise of discretion was entitled to deference.

The court held that the egregious conduct of the appellant's counsel and the resulting prejudice to the respondent justified refusing to set aside the dismissal order.

The appeal was dismissed.

The moving party (Third Party) brought a motion to set aside an order of a single judge of the Divisional Court, which had quashed its appeal from a Master's interlocutory orders regarding the procedure for a trade secrets protection motion.

The Divisional Court dismissed the motion, finding the Master's orders were interlocutory and properly appealable only to a judge of the Superior Court.

The court also dismissed the moving party's requests to vary the order to permit examination of opposing counsel and to delete portions of the judge's endorsement, characterizing the moving party's conduct as an abuse of process.

The responding party's cross-motion was granted in part, requiring the moving party to obtain leave before bringing further procedural motions.

Full indemnity costs were awarded against the moving party.

The appellants appealed a summary judgment dismissing their counterclaim.

The Court of Appeal allowed the appeal, finding that genuine issues for trial existed regarding whether the Consumer Protection Act applied to a handwritten estimate for a construction contract, and whether the contract was exempt from the Act as part of a real estate transaction.

The matter was remitted for trial.