Frank C. Caruso

The applicant insurer sought a declaration that it had no duty to defend or indemnify the respondent insured following a motor vehicle accident in California, arguing the insured misrepresented his address and vehicle use.

The court dismissed the application as premature and too broad, noting that under sections 233 and 258 of the Insurance Act, an injured third party maintains the right to collect a judgment against the insurer up to statutory minimums despite the insured's misrepresentation.

The dismissal was without prejudice to the insurer revisiting the issue if claims materialize.

The plaintiffs brought a motion under Rule 39.02(2) of the Rules of Civil Procedure seeking leave to file further affidavits after having conducted cross-examinations, in connection with the defendants' motions for security for costs.

The court applied a flexible, contextual four-part test, finding the evidence relevant, responsive to matters raised on cross-examination, causing no non-compensable prejudice (as further cross-examination was permitted), and with a reasonable explanation for its late submission due to tight timelines.

Leave was granted, emphasizing the importance of allowing claims to be determined on their merits, especially where impecuniosity is alleged.

The appellants appealed the motion judge's order striking their statement of claim and amended statement of claim against the Law Society of Upper Canada as disclosing no reasonable cause of action.

The appellants alleged that the Law Society's practice of requiring lawyers facing negligence claims to provide client files to the professional indemnity insurer violated confidentiality, privacy, and solicitor-client privilege.

The motion judge struck the pleadings without leave to amend, finding that section 9 of the Law Society Act provides statutory immunity for actions taken in good faith in the performance of statutory duties.

The appellants did not plead bad faith, which is necessary to overcome the statutory immunity.

The appeal was dismissed.

The plaintiff brought a motion for a status hearing to establish a timetable for an action commenced in 2008, which the defendants opposed, seeking dismissal for delay.

Applying the two-part test from Faris v. Eftimovski, the court required the plaintiff to provide an acceptable explanation for the litigation delay and demonstrate that the defendants would not suffer non-compensable prejudice.

The Master found the plaintiff had met this burden, noting consistent efforts to advance the case despite its age and a lack of actual prejudice to the defendants.

The motion was granted, and a detailed timetable was ordered for the remaining steps, including discovery, mediation, and setting the action down for trial.