D. Dooley

The plaintiff purchased a farm property from the defendant vendors.

After closing, she discovered severe latent defects, including a history of basement flooding, a failed septic system, and that the house additions and garage were built without building permits.

The plaintiff sued the vendors for breach of contract and negligent misrepresentation, and her title insurer for breach of contract after it denied coverage.

The court found the vendors liable for actively concealing defects and acting with reckless disregard.

The court also found the title insurer liable, holding that the lack of permits and unsafe building orders were covered risks under the policy.

The plaintiff was awarded damages for the full replacement cost of the structures, special damages, general damages for mental distress, and punitive damages against the vendors.

The title insurer was held jointly and severally liable for the replacement costs and special damages, but was granted full indemnity from the vendors.

The plaintiff moved under Rule 49.09 of the Rules of Civil Procedure for judgment enforcing a settlement after accepting the defendant’s “all‑inclusive” offer to settle a personal injury action arising from a motor vehicle accident.

The acceptance letter stated that the plaintiff would not be responsible for a defence medical examination cancellation fee.

The defendant argued the added wording constituted a counter‑offer and prevented contract formation.

The court held the statement did not alter the legal terms of the offer because the cancellation fee risk was already encompassed within the defendant’s all‑inclusive settlement offer.

A binding settlement contract was therefore formed and the court exercised its discretion to enforce the agreement.

Following a motion to enforce a settlement, the court had previously set aside the settlement despite finding a binding agreement, due to prejudice considerations favouring the applicants.

The present endorsement addressed costs arising from that motion.

The court found that the applicants’ lawyers’ deficient record‑keeping, failure to follow minimum practice standards, and unprofessional conduct caused unnecessary litigation costs and made the factual inquiry significantly more difficult.

Applying Rule 57.07(1) of the Rules of Civil Procedure and the principles in Young v. Young, the court concluded that the lawyers’ conduct caused unnecessary costs and warranted a personal costs order.

Costs were therefore ordered personally against counsel on a partial indemnity basis.

The moving party sought to enforce a settlement under Rule 49.09(a) of the Rules of Civil Procedure after receiving an unconditional notice accepting an offer to settle a vexatious litigant application.

The responding parties argued the acceptance was sent by mistake due to solicitor error and did not reflect their instructions, which required settlement of a related defamation action and cost set‑offs.

The court reviewed the contractual principles governing settlements and the discretionary factors for enforcing settlements where solicitor error is alleged.

While the evidence raised concerns about counsel’s record‑keeping and the possibility that the acceptance was intentionally sent, the court ultimately found the delivery of the unconditional acceptance was plausibly an innocent mistake.

Balancing prejudice between the parties, the court concluded that enforcing the settlement would create greater unfairness to the responding parties and declined to enforce it.

The defendants brought a motion for summary judgment dismissing a subrogated fire loss claim as statute-barred under the Limitations Act, 2002.

The fire occurred after a contractor left staining materials in a plastic bag on a deck, allegedly causing spontaneous combustion.

The defendants argued the claim was discovered immediately after the fire in August 2008, making the September 2010 action out of time.

The court held the claim was not discoverable until the investigation revealed that stain-soaked rags likely caused the fire, which occurred on September 25, 2008.

Because the statement of claim was issued within two years of that date, the action was timely and summary judgment was refused.

During a civil trial arising from a motor vehicle collision, the court considered whether an expert accident reconstruction witness could remain in the courtroom during the testimony of the opposing party’s expert despite an existing witness exclusion order under Rule 52.06(1).

The moving party sought permission for the expert to observe the opposing expert’s testimony to assist counsel in cross-examination.

The opposing party argued the testimony involved credibility issues arising from changes between expert reports.

The court held that experts are commonly exempted from exclusion orders because they provide opinion evidence rather than factual testimony, and their presence can assist counsel in understanding and testing expert evidence.

Finding no prejudice and relying on its discretion to vary trial management orders where circumstances change, the court amended the earlier exclusion order to permit experts to hear the testimony of opposing experts.

Following the dismissal of a summary judgment motion, the court determined the appropriate costs consequences for both the unsuccessful motion and an earlier motion abandoned by another defendant.

The court held that the unsuccessful moving party failed to establish that its summary judgment motion was reasonably brought in light of credibility disputes requiring a trial.

As a result, the opposing defendant was awarded costs of the summary judgment motion on a substantial indemnity basis under Rule 20.06.

The insurer was granted limited partial indemnity costs for the earlier abandoned motion under Rule 37.09(3), excluding certain examination costs used primarily for its own unsuccessful motion.

After set-off, a net costs award was ordered in favour of the opposing defendant.

In a motor vehicle accident action involving an uninsured driver, the OPCF 44‑R insurer brought a motion for summary judgment seeking a declaration that the insured driver was at least one percent at fault, which would remove the insurer from liability under the Negligence Act.

The court held that credibility issues and conflicting testimony regarding the circumstances of the collision required a trial, applying the “full appreciation test” articulated in Combined Air Mechanical Inc. v. Flesch.

The written record and cross‑examinations created genuine issues requiring trial, particularly regarding the drivers’ credibility and the sequence of events at the intersection.

The summary judgment motion was dismissed.

The insurer was awarded costs of an abandoned motion brought by another defendant and obtained a contingent declaration concerning the priority of insurance coverage for damages exceeding $200,000.