Kenneth R. Wace

An insurer sought default judgment against an uninsured defendant following settlement with the plaintiff.

The insurer had taken an assignment of the plaintiff's action and settled for $105,000.

The court considered whether the settlement amount could be used as a proxy for damages in the absence of detailed evidence regarding the plaintiff's injuries and losses.

The court found insufficient evidence to establish the reasonableness of the settlement and declined to grant judgment, allowing the insurer 21 days to file additional evidence.

The defendant brought a motion to dismiss the plaintiff's action for delay under Rule 24.01.

The plaintiff, a 71-year-old self-represented litigant, had experienced significant delays, including periods without counsel and difficulty obtaining her legal file.

The court found the overall delay inordinate but excused it, particularly the period since her second counsel's removal, due to her reasonable efforts to retain new counsel and her difficulties as a self-represented litigant.

The court also found that the plaintiff had rebutted the presumption of prejudice, as the defendant failed to establish actual prejudice.

The motion to dismiss was denied, but terms were imposed on the plaintiff to advance the action promptly.

The plaintiffs, Yael Rush and Thomas Rush, brought a motion to add Total Facility Solutions (TFS), a winter maintenance company, as a defendant to their slip and fall action against Via Rail Canada Inc. The primary issue was whether the proposed claim against TFS was barred by the two-year limitation period under the Limitations Act, 2002.

The court found that the plaintiffs could not have reasonably discovered the material facts necessary to plead against TFS until December 23, 2014, when Via Rail's Statement of Defence identified TFS.

As the notice of motion to add TFS was served on December 19, 2016, the claim was deemed to be within the two-year limitation period.

The court also confirmed that the doctrine of special circumstances no longer applies to extend limitation periods under the new Act.

The motion was allowed, adding TFS as a defendant, without prejudice to TFS raising a limitations defence.

Costs were awarded to the plaintiffs.