Daniel Himelfarb

Following the settlement of a motor vehicle accident tort claim, the plaintiffs brought a motion for costs and an increase in the pre-judgment interest rate.

The court assessed the costs of the civil action, reducing the amount claimed to account for expenses incurred due to a trial adjournment requested by the plaintiffs.

The court also considered whether the tort defendant should contribute to the costs the plaintiffs incurred in parallel statutory accident benefits (SABs) proceedings, ultimately ordering a $20,000 contribution because the SABs settlements significantly reduced the defendant's tort exposure.

The plaintiffs' request to increase the pre-judgment interest rate to offset statutory deductible increases was dismissed.

The plaintiffs brought a motion to amend their Statement of Claim to replace 'John Doe Retailer' and 'John Doe Installer' with the names of the specific defendants who sold and installed a furnace that allegedly caused a fire.

The proposed defendants opposed the motion, arguing the limitation period had expired and they had no notice of the claim.

The court granted the motion, finding that the 'litigation finger' clearly pointed at the proposed defendants and that actual notice or due diligence is not required to correct a misnomer under the Rules of Civil Procedure and the Limitations Act, 2002.

Following a decision on motions relating to an insurance appraisal process, both parties sought costs.

The court found that while success was somewhat divided, the defendant was the more successful party overall.

The court awarded partial indemnity costs of $6,547.04 to the defendant in the cause.

The defendant insurer brought a motion to appoint an appraiser on behalf of the plaintiff insureds under s. 128 of the Insurance Act following a residential fire.

The plaintiffs brought a responding motion seeking declarations that the appraisal proceed without regard to policy limits and include damages caused by the insurer's contractors.

The parties agreed on the scope of the appraisal but disagreed on whether the insurer had waived policy limits.

The court appointed the plaintiffs' chosen appraiser, noting its limited jurisdiction under s. 128(5), and ordered the appraisal to proceed without regard to policy limits but without prejudice to any rights or defences under the policy.

Following the resolution of insurance coverage issues and the dismissal of the action against the uninsured motorist carrier, the plaintiffs sought costs thrown away on a substantial indemnity basis.

The plaintiffs argued the tortfeasor's insurer denied coverage for tactical reasons, necessitating a separate action.

The court rejected this argument, finding the insurer's denial of coverage due to lack of cooperation from its insured was reasonable.

The court awarded the plaintiffs partial indemnity costs of $3,500 plus $500 in disbursements for the extra discovery steps required, payable in the cause.

The plaintiff brought a motion to set aside an order dismissing his action for delay.

The action, arising from a 2004 motor vehicle accident, was administratively dismissed in December 2012 after the plaintiff failed to set it down for trial.

Applying the Reid factors, the court found the plaintiff failed to provide a reasonable explanation for the delay, did not bring the motion promptly, and failed to demonstrate an intention to proceed.

The court also found the defendants would suffer prejudice due to the passage of time and lack of medical evidence.

The motion was dismissed.