Eli Pullan

The appellant (Third Parties) appealed an order from the Superior Court of Justice, arguing that the motions judge lacked authority to order the discontinuance of a third-party action, erred in awarding costs to the respondent, and failed to address their cross-motion.

The Court of Appeal affirmed its jurisdiction and dismissed the appeal, finding that the motions judge had the authority to order discontinuance, with leave being subsumed in the order, and that the costs decision was within the judge's discretion.

The cross-motion issue was rendered moot.

The defendant, Brian Jeffery, brought a motion for leave to discontinue his third-party claim against the Ministry of Transportation (MTO) and for a determination of costs, after the main action and other third-party claims had been dismissed.

The MTO refused to agree to a without-costs dismissal or discontinuance and brought a cross-motion for dismissal with costs for delay or summary judgment.

The court found that Jeffrey's third-party claim was not frivolous, vexatious, or pursued in bad faith.

Despite the MTO's insistence on costs, the court determined it was unreasonable for the MTO to do so, especially given Jeffrey's early offer to discontinue the claim.

The court granted Jeffrey's motion, discontinuing the third-party action against the MTO, and awarded partial indemnity costs in favour of Jeffrey.

The applicant landlord sought to bring a subrogated claim against the respondent tenant for damages arising from a residential fire.

The respondent was also an officer of the applicant corporation.

The core issue was whether the respondent was an insured under the applicant's commercial general liability (CGL) policy, which contained a waiver of subrogation against any individual for whom insurance was provided.

The applicant argued the respondent was only insured in her capacity as an officer, while the respondent contended she was covered as an individual.

Applying principles of insurance contract interpretation, including the *contra proferentem* rule, and relying on precedent, the court found that the respondent was an insured for the purposes of the subrogation waiver, thereby prohibiting the subrogated action.

This trial concerned whether Amanda Bowman had the implied consent of her mother, Christina Bowman, to drive her vehicle, which was involved in an accident with the plaintiff, Barbara Watts.

Liability and damages were agreed upon, with the sole issue being implied consent under the Highway Traffic Act.

The court found that Christina Bowman successfully demonstrated that Amanda Bowman did not have her implied consent, thereby absolving Christina Bowman of owner's liability.

Consequently, Western Assurance Company, the plaintiff's insurer, was ordered to pay the agreed damages and costs to the plaintiff, with statutory subrogation rights against Amanda Bowman.

The defendant physicians and hospitals brought a motion to dismiss the plaintiffs' medical negligence action for delay under Rule 24.01(1).

The action, commenced in 2001 following the death of the plaintiffs' family member, had proceeded at a glacial pace primarily due to the plaintiffs' difficulties in obtaining expert medical reports.

The court dismissed the motion, finding that while the delay was lengthy and the plaintiffs were wholly responsible, it was not intentional or contumelious.

Furthermore, the presumption of prejudice was rebutted as the necessary medical records were preserved and the case would largely rely on those records and expert opinions rather than witness memory.

The defendants brought motions seeking dismissal of the claim against an individual defendant and security for costs.

The plaintiff sought leave to amend the statement of claim to add allegations that the individual defendant improperly directed the corporate defendant not to pay a promissory note.

The court held the proposed amendments were insufficient to establish personal liability for a corporate officer because they did not plead conduct separate from the officer’s role as the directing mind of the corporation.

Leave to amend those portions of the pleading was refused, and the claim against the individual defendant was dismissed for failing to disclose a genuine issue requiring a trial.

The court also ordered the corporate plaintiff to post $25,000 as security for costs due to concerns about its ability to satisfy a potential costs award.