John Malcolm Burnes

The defendant/plaintiff Nicol moved for an order to try four actions together, or alternatively, to try two specific actions together and waive the deemed undertaking rule.

The court dismissed the primary request for joinder of all four actions, finding the issues between the property damage claims and the service provider claims distinct and that the matter was largely res judicata.

However, the court granted the alternative relief, ordering the two property damage actions (McColgan and Piccolotto) to be tried together, and the service provider actions to be severed and tried separately.

The court also waived the deemed undertaking rule.

Costs were awarded against Nicol on a substantial indemnity basis for McColgan and Piccolotto, and partial indemnity for the Service Providers, due to Nicol's unsuccessful primary motion and refusal of reasonable settlement offers.

The appellant insurer appealed a decision finding that a homeowners policy exclusion for motorized land vehicles did not apply.

The insured accidentally started a fire while removing parts from an inoperable motor vehicle to use in a replica car he was building.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that the exclusion did not apply because the assertions of negligence were not related to the ownership or use of the vehicles as motor vehicles.