David Bertschi

The court reconsidered its previous decision to decline scheduling a summary judgment motion due to the significant and indefinite delays in civil trials caused by the COVID-19 pandemic.

Initially, the court deemed a trial more efficient, but the changed circumstances rendered trial scheduling unrealistic for the foreseeable future.

Consequently, leave was granted to the defendants to bring a summary judgment motion under Rule 20 to test insurance defences, as this mechanism was now considered more efficient for streamlining issues given the prolonged trial backlog.

Directions were provided for electronic filing and virtual hearing protocols.

This decision addresses prejudgment and postjudgment interest and trial costs following a bifurcated damages trial.

The court determined that the plaintiffs' damages award of $1,083,713.26 for diminution in value and lost rental income should be reduced by $436,892.13 in insurance monies received, resulting in a net damage award of $658,054.28.

Tega's Rule 49 offer to settle for $650,000 plus prejudgment interest (totaling $693,754.79) was found to be more favourable than the plaintiffs' net recovery.

Consequently, the plaintiffs were awarded partial indemnity costs up to the date of Tega's offer (December 29, 2015), and Tega was awarded partial indemnity costs from that date forward.

The court also disallowed expert fees for one of the plaintiffs' experts whose evidence was deemed unhelpful.

Counsel for the defendant Paterson Group Inc. requested that its costs of the Damages Trial be reserved to be determined at the time of the Liability Trial.

The co-defendant Tega Homes Developments Inc., against whom the costs claim would be made due to a cross-claim, consented to the request.

The court granted the request and ordered that the determination of Paterson's costs of the Damages Trial be reserved to the Liability Trial.

This endorsement addresses a request by Goodeve Manhire Inc. and Goodeve Manhire Partners Inc. to reserve the determination of their costs from the Damages Trial until the Liability Trial.

The plaintiffs' action against Goodeve had been dismissed without costs, but Goodeve's cost claim was against Tega Homes Developments Inc. due to a cross-claim.

The court indicated it would grant the reservation if Tega consented or did not oppose.

If Tega opposed, Goodeve was granted an extension to file its costs submissions for the Damages Trial.