Eric Lay

The plaintiff brought a motion seeking to consolidate two related actions, add a new plaintiff, and amend its pleadings to include claims for defamation and breach of a duty of good faith.

The court held that the two actions should not be formally consolidated but ordered that they be listed for trial consecutively.

The proposed defamation claim and addition of a new plaintiff were refused because the pleadings lacked the particularity required for defamation and would not survive a motion to strike.

The proposed claim for breach of a duty of good faith was also rejected because such a duty cannot stand as an independent cause of action separate from breach of contract.

Certain amendments pleading material facts were allowed, while others were dismissed for improperly pleading evidence rather than material facts.

Following an unsuccessful motion seeking removal of estate trustees, the court addressed the costs consequences of the motion.

Applying Rule 57.03(1) of the Rules of Civil Procedure, the court held that costs should ordinarily be fixed and payable immediately rather than reserved to trial.

The court rejected arguments that estate litigation principles justified deferring or shifting costs to the estate, finding the moving parties were effectively advancing creditor‑type claims against the estate rather than beneficiary claims.

The court awarded one set of partial indemnity costs to the responding parties, allocating the amount between the estate and the trustees personally while avoiding duplication.

Costs were fixed at $13,500 payable jointly and severally by the moving parties.

The appellant appealed an order striking without leave to amend certain paragraphs and causes of action in a draft fresh as amended statement of claim.

The appellant argued a jurisdictional issue because the motion was brought under Rule 26 for leave to amend, but the motion judge used language suggestive of a motion to strike.

The Court of Appeal dismissed the appeal, finding the distinction immaterial, as the result—that the proposed pleading and causes of action were unavailable—was the same.

The Court of Appeal determined the costs of an appeal and cross-appeal.

Although success was divided, the respondent achieved much greater success by successfully defending against the main appeal on liability and succeeding on the cross-appeal.

The court fixed the respondent's costs at $40,000, inclusive of GST and disbursements, noting the complexity of the matter and the lengthy record.

The appellants, physicians found liable for medical malpractice for failing to diagnose the respondent's acromegaly, appealed the trial judge's awards for future income loss, future medication costs, and a $150,000 costs premium.

The Court of Appeal dismissed the appeal regarding damages, finding the trial judge reasonably relied on lay evidence and medical reports to establish future income loss, and correctly held the tortfeasors responsible for medication costs despite government program coverage.

The respondent's cross-appeal to apply the Rule 53.09 discount rate to future medication costs was allowed.

The Court also reduced the costs premium to $75,000, finding the trial judge erred by penalizing the appellants for their insurer's settlement policy, though a premium was still justified by the risk assumed and result achieved by the respondent's counsel.