John Robert Bradbury

The defendant insurer brought a motion for summary judgment dismissing the plaintiff’s action for statutory accident benefits as statute‑barred.

The plaintiff sought non‑earner benefits following a motor vehicle accident but did not request mediation until several years after the insurer’s written refusal.

The court held that the insurer’s OCF‑9 form clearly denied the benefit and triggered the two‑year limitation period under the Statutory Accident Benefits Schedule and the Insurance Act.

Although the plaintiff argued the denial contained a misleading explanation and that she did not understand her entitlement, the court found that once she retained counsel in early 2006 she was deemed to know of the limitation period and her rights.

The mediation request and subsequent claim were therefore well outside the limitation period.

The action and the request to amend the claim to plead negligent misstatement were dismissed.

Following the dismissal of a summary judgment motion brought by certain defendants, the plaintiff sought costs on a partial indemnity basis.

The responding defendants did not object to the quantum requested.

The court found the plaintiff’s requested costs reasonable and ordered payment accordingly.

The decision also corrected a typographical error in the court’s earlier reasons for judgment regarding which party amended a statement of defence.

Contractors and subcontractors moved for summary judgment seeking dismissal of a negligence and property damage claim arising from a water leak during mechanical system upgrades to a commercial building.

They argued that a builder’s risk insurance obligation contained in a long‑term land lease between the building owner and its landlord created a subrogation bar protecting them as third‑party beneficiaries.

The court held that the construction contract governing the work contained an “entire agreement” clause and expressly allocated responsibility for builder’s risk insurance to the contractor.

Because the defendants were strangers to the land lease and had neither relied upon nor bargained for its provisions, the lease could not override the later construction contract or confer a defence through the privity exception.

The insurance provision in the land lease therefore did not bar the plaintiff’s action.

The plaintiff brought a motion to amend its statement of claim to substitute a corporate defendant, arguing that the originally named defendant was incorrectly identified and that the intended defendant was the American manufacturer of the equipment at issue.

The responding party argued the amendment was not a misnomer because the originally named entity was a distinct legal entity deliberately chosen by the plaintiff.

Applying the modern approach to misnomer under Rule 5.04(2) of the Rules of Civil Procedure and appellate authority, the court considered whether there was a coincidence between the plaintiff’s intention to name the proper party and the intended party’s knowledge that it was the intended defendant.

The court found that the plaintiff always intended to sue the manufacturer and that the manufacturer knew it was the intended defendant based on prior correspondence and the pleadings.

Leave was granted to amend the statement of claim to substitute the proper corporate defendant.