Harold W. Sterling

The defendants and the third party, His Majesty the King in Right of Ontario (Ministry of Transportation), agreed to dismiss the third party claim against the Ministry but disagreed on costs.

The court found that it was not unnecessary for the defendants to add the Ministry to ascertain the identity of the correct contractor, and that the Ministry could have avoided the costs claimed by providing the requested information.

The court ordered the dismissal without costs to any party.

This is a costs ruling following a successful motion by the defendant to add the Ministry of Transportation as a third party in a motor vehicle accident claim.

The defendant sought costs on a substantial indemnity basis, or alternatively partial indemnity, while the Ministry argued no costs should be awarded due to alleged delays and complexities caused by the defendant.

The plaintiff, though not a direct party to the motion, also sought costs for attendances.

The court awarded the defendant partial indemnity costs of $15,000, finding no conduct warranting substantial indemnity, and denied costs to the plaintiff who lacked standing on the motion.

The defendant, Brian Jeffery, brought a motion to add Her Majesty the Queen in Right of the Province of Ontario, represented by the Minister of Transportation (MTO), as a third party in a negligence action arising from a motor vehicle collision.

The MTO resisted, arguing lack of statutory authority and failure to provide timely notice under the Public Transportation and Highway Improvement Act (PTHIA).

The court found that the PTHIA permits the Crown to be added as a third party for contribution and indemnity claims and that the defendant had a reasonable excuse for late notice, causing no prejudice to the MTO.

The motion was granted.

The Motor Vehicle Accident Claims Fund appealed a trial judgment in which it successfully sued an automobile insurer for restitution based on unjust enrichment.

The insurer had purported to terminate an automobile insurance policy for non-payment of premiums by sending notice only to the named insured (the vehicle owner's wife) rather than to the actual owner.

The policy remained in force when a catastrophic accident occurred.

The injured passenger obtained a judgment against the vehicle owner and assigned it to the fund, which paid the judgment and then sued the insurer for restitution.

The Court of Appeal upheld the trial judgment, finding that the notice of termination was ineffective because it was not sent to the actual owner as required by statutory condition 11(1) of Ontario Regulation 777/93, that the fund was not bound by the Insurance Act's limitation period because the Crown enjoyed immunity from the Act's provisions, and that the fund was entitled to bring a claim in unjust enrichment rather than being restricted to the statutory remedy under section 258 of the Insurance Act.

The defendants brought a motion to compel the third party (the Crown) to provide discovery information and re-attend examination, arguing the Crown's participation was compellable.

The Crown argued its participation was voluntary under the Public Transportation and Highway Improvement Act (PTHIA), not the Proceedings Against the Crown Act (PACA), which grants discovery rights.

The court found the third-party action was commenced under PTHIA, thus no right of discovery against the Crown, and dismissed most of the motion.

However, the court enforced a "best efforts" undertaking given by Crown counsel, emphasizing the court's inherent jurisdiction to control its process.

The plaintiff brought a motion to set aside a Registrar’s administrative dismissal for delay and to restore the action to an assignment court list.

The action arose from a pedestrian‑motor vehicle accident and had experienced lengthy procedural delays, including removal from a prior trial list by consent.

Applying the contextual approach governing motions to set aside administrative dismissals, the court considered the explanation for delay, inadvertence in missing the status hearing deadline, promptness of the motion, and prejudice to the defendants.

The court found that while delay existed, some responsibility rested with the defendants due to earlier tactical decisions, the missed deadline was attributable to inadvertence, and the defendants would not suffer significant prejudice.

The court set aside the dismissal and restored the action to the assignment court list, but declined to award costs to the plaintiff.

The plaintiffs brought a motion under Rule 5.04(2) of the Rules of Civil Procedure seeking leave to amend their statement of claim to add the provincial transportation authority as a defendant in a motor vehicle accident action.

They argued the claim was only discovered during the driver’s examination for discovery, when evidence allegedly revealed that inadequate highway signage contributed to the accident.

The proposed defendant argued the limitation period under the Limitations Act, 2002 had expired and that the claim could have been discovered immediately after the accident through reasonable investigation.

The court held that the alleged signage deficiencies were readily discoverable with modest due diligence shortly after the accident.

Because the limitation period had expired, leave to add the proposed defendant was refused.