John David Meenan Murphy

At a status hearing in a simplified procedure action arising from an alleged failed business venture, the defendants sought dismissal for delay after the plaintiff took no steps for more than two years following the close of pleadings.

The court held that the transitional provision in Rule 48.14(12) required application of the former version of Rule 48.14 because the status hearing had been scheduled before January 1, 2015.

Applying the Court of Appeal's status hearing jurisprudence, the court found the plaintiff's explanation for delay inadequate and noted the absence of any steps to advance the action.

The action was dismissed.

The applicant was injured in a motor vehicle accident and sought statutory accident benefits for an orthopaedic mattress and retraining expenses.

The insurer denied the claims because the applicant incurred the expenses before submitting a treatment plan, contrary to section 38(1.1) of the Statutory Accident Benefits Schedule.

The applicant argued for relief from forfeiture under section 129 of the Insurance Act and section 31 of the Schedule.

The arbitrator held that the insurer was not liable to pay for the expenses because the treatment plans were not submitted prior to the expenses being incurred.

The arbitrator also found that section 129 of the Insurance Act and section 31 of the Schedule did not apply to relieve the applicant from the requirement to submit a treatment plan before incurring an expense.

The application was dismissed.

Following the refusal of leave to appeal an order, the successful party sought costs.

The responding party argued that awarding costs at this stage would be unjust because issues arising from earlier procedural missteps by the plaintiff could be addressed later in the proceeding.

The court held that each litigation step attracts its own costs determination and that any additional costs arising from procedural errors could be considered when final costs are assessed.

As the plaintiff successfully resisted the motion for leave to appeal, the court fixed costs in its favour on a partial indemnity basis.

The moving party sought leave to appeal an order granting consolidation and transfer of several Small Claims Court actions to the Superior Court of Justice and dismissing a motion to strike for abuse of process.

The moving party argued that a prior consent dismissal in a related Superior Court action rendered the issues res judicata and relied on appellate authority concerning the finality of consent dismissal orders.

The court held that the prior decision did not conflict with the authorities cited and that the motions judge properly exercised discretion in considering the factors from the Supreme Court of Canada decision addressing res judicata.

The court found no reason to doubt the correctness of the earlier ruling and concluded that the circumstances were sufficiently particular to avoid concerns about undermining finality of consent dismissals.

Leave to appeal was therefore refused.