James M. Brown

The plaintiff municipality sought leave to amend its statement of claim to add its consulting engineer, WSP, as a defendant in an action concerning defective bridge rehabilitation work.

WSP opposed the motion, arguing the claim was statute-barred by the two-year limitation period.

The court applied the discoverability principle, finding that the plaintiff reasonably relied on WSP's professional advice that the defects were caused by poor workmanship rather than WSP's specified concrete mixture.

The limitation period did not begin to run until the plaintiff obtained independent expert reports revealing WSP's potential negligence.

The motion to add WSP as a defendant and extend the time to set the matter down for trial was granted.

The appellants (Mastron entities) appealed a motion judge's order that refused to dismiss third and fourth party claims and granted leave nunc pro tunc to Genivar to issue its fourth party claim.

The motion judge held that an order by Hackland J. dated December 10, 2013 was intended to continue the proceedings under the ordinary track rather than under the Construction Lien Act.

The appellants argued the motion judge erred in granting leave nunc pro tunc because the two-year limitation period for commencement of the fourth party claim had expired.

The Court of Appeal dismissed the appeal, finding that the motion judge correctly interpreted Hackland J.'s order as continuing the action on the ordinary track, since the third party claim included claims for breach of contract and negligence in addition to contribution and indemnity, which could only proceed under the ordinary track.

The defendant WSP Canada Inc. brought a motion for leave to appeal to the Divisional Court from a decision compelling the production of an internal Risk Management Report (RMR).

WSP claimed common law privilege over the RMR, arguing that the motion judge erred in applying the dominant purpose test for litigation privilege and that his decision conflicted with other authorities.

The court dismissed the motion for leave to appeal, finding no conflicting decisions on common law privilege principles and no good reason to doubt the correctness of the original decision.

The court affirmed that the RMR was not prepared for the dominant purpose of litigation and therefore was not protected by litigation privilege, correctly applying the Slavutych test.

The plaintiff municipality brought a motion to compel the defendant engineering firm to produce a Risk Management Report and answer questions refused at cross-examination.

The defendant argued the report was protected by litigation and common law privilege.

The court found the report was relevant to the issue of discoverability, as the plaintiff alleged the defendant acted in a conflict of interest by reassuring it about the quality of work.

The court held the report was not protected by litigation privilege because it was not prepared for the dominant purpose of litigation, nor was it protected by common law privilege as it did not meet the Wigmore criteria.

The motion was granted.

The moving party insurer sought summary judgment dismissing a claim by another insurer seeking indemnity for statutory accident benefits paid to an insured injured in two separate motor vehicle accidents.

The responding insurer alleged that the moving party remained responsible for benefits arising from the earlier accident and should contribute to benefits paid following the second accident.

The motion raised issues concerning the interpretation of the Insurance Act, the Statutory Accident Benefits Schedule, the Disputes Between Insurers regulation, and limitation periods.

The court held that the evidentiary record was insufficient to determine causation between the accidents, the applicability of statutory limitation periods, and whether an equitable cause of action for indemnity existed.

Given the novel legal issues and gaps in the evidentiary record, summary judgment was inappropriate and the matter should proceed to trial.