Dave Dhillon

The moving parties, Hyundai Motor Company and Hyundai Auto Canada Corp., sought leave to appeal the order of Barnes J. dated June 10, 2022.

The Divisional Court dismissed the motions for leave to appeal.

Costs of $4,000 were awarded against each moving party, payable to the respondent within 30 days.

The plaintiffs brought a motion seeking leave to amend their statement of claim against Tarion Warranty Corporation and to add the Home Construction Regulatory Authority (HCRA) as a defendant.

The proposed amendments included new allegations regarding a 2007 provincial offences conviction, a 2016 refusal to register, and a 2019 notice of proposal.

The court granted the motion in part, allowing amendments that clarified existing claims or arose from the same factual matrix, but refusing amendments that introduced new, statute-barred causes of action or sought relief outside the court's jurisdiction.

The court also permitted the plaintiffs to add the HCRA as a defendant for a damages claim, but refused to allow a claim for a mandatory order against the regulator, holding that such relief must be sought by way of judicial review in the Divisional Court.

The self-represented appellant appealed a final order enforcing a $35,000 settlement.

He argued the motion judge denied him procedural fairness by refusing to hear his arguments or receive his materials.

The Divisional Court dismissed the appeal, finding the motion judge had heard and considered the appellant's arguments.

The court also found no error in the motion judge's factual determination that a settlement was reached and was not unconscionable.

The defendants moved to amend their Statement of Defence to plead a statutory bar under the Workplace Safety and Insurance Act, 1997 (WISA), asserting the plaintiff was a Schedule 1 worker.

The plaintiff opposed, arguing the amendments were untenable and statute-barred.

The court dismissed the defendants' motion, finding that the plaintiff would suffer uncompensable prejudice due to the defendants' unexplained delay (laches) and their prior conduct, which established an independent contractor relationship, giving rise to promissory estoppel.

The court emphasized the application of equitable principles in interpreting the Rules of Civil Procedure.

The statutory third party, Wawanesa, brought a motion to compel the plaintiff to attend a defence physiatry examination.

The plaintiff opposed, arguing that leave was required under Rule 48.04 and that the motion should be denied due to various defaults by the insured and Wawanesa.

The court found that leave was not required and that Wawanesa should not be prejudiced by its insured's defaults.

However, the motion for an immediate examination was dismissed due to Wawanesa's significant delay in requesting it, which would prejudice the plaintiff given the imminent trial date and the inability to obtain a timely expert response.

The court ordered Wawanesa to produce the insurance policy and fixed costs against Wawanesa, while also stating that the plaintiff would be required to attend the examination if the trial were adjourned.