Jillian Van Allen

The plaintiff brought a show cause motion at a status hearing under Rule 48.14 to avoid dismissal of an action for delay.

The claim sought entitlement to critical illness benefits under an insurance policy after a thyroid cancer diagnosis, which the insurer denied based on alleged misrepresentations regarding depression treatment in the application.

The court applied the contextual two‑part test requiring an acceptable explanation for delay and absence of non‑compensable prejudice.

Although the explanation for portions of the delay was weak and attributed largely to solicitor inadvertence, the court held it was acceptable when considered in context, including the defendant’s delayed document disclosure and the document‑driven nature of the dispute.

The court also found no evidence of non‑compensable prejudice to the insurer and rejected speculative claims of future prejudice.

The action was permitted to proceed and the plaintiff was directed to establish a timetable for the litigation.

The defendant insurer brought a motion under Rule 15.02 of the Rules of Civil Procedure seeking dismissal of the action and costs against the plaintiff’s lawyer personally on the basis that the proceeding was commenced without the plaintiff’s authority.

Evidence revealed the plaintiff had suffered a severe brain injury and her counsel later asserted that she was under a legal disability, raising doubt about her capacity to instruct counsel at the time the claim was issued.

The court held that the plaintiff failed to provide evidence addressing her capacity to authorize commencement of the action.

Drawing a negative inference from the absence of such evidence, the court concluded that counsel lacked authority to commence the proceeding.

The action was dismissed and the plaintiff’s lawyer was ordered to pay the defendants’ costs on a partial indemnity basis.

The defendant moved to enforce a settlement agreement reached via email shortly before trial.

The plaintiff opposed the motion, arguing the offer did not comply with Rule 49, there was no meeting of the minds, and she had a right to rescind under the Statutory Accident Benefits regulations.

The court found the offer was clear and unconditionally accepted, and that misapprehension by plaintiff's counsel did not void the settlement.

Following appellate authority, the court held that engaging in litigation precludes relying on SABS rescission rights to avoid a Rule 49 settlement.

The motion to enforce the settlement was granted.