K. Newton

The plaintiffs brought a motion for a status hearing pursuant to Rule 48.14(5) of the Rules of Civil Procedure, seeking a timetable for remaining steps in a subrogated action arising from water damage caused by a fire suppression system.

The defendant opposed the motion, arguing the action should be dismissed for delay.

The court found that the plaintiffs failed to provide an acceptable explanation for the delay of over three years and failed to tender any evidence to rebut the strong presumption of prejudice to the defendants.

The action was dismissed for delay with costs.

The defendants moved for summary judgment dismissing a personal injury claim arising from a zip-line accident, relying on a participant agreement containing a waiver of liability.

The plaintiff argued the waiver was invalid or unenforceable because she did not understand she was signing a release, the waiver language was ambiguous, and the circumstances of signing were misleading.

The court held that the evidentiary record was incomplete regarding the conditions under which the agreement was presented and signed, including potential misrepresentations and the plaintiff’s understanding of the document.

Given the document’s structure, typographical errors, and disputed circumstances, the court concluded that credibility findings and a full evidentiary record were required.

Summary judgment was therefore inappropriate and the enforceability of the waiver must be determined at trial.

A commercial trucking company sought indemnity under an automobile insurance policy after its tractor unit was reported stolen.

The insurer denied the claim, alleging the insured provided false particulars and failed to disclose significant unrepaired damage and the true market value of the vehicle during the application process.

The court held the insurance broker acted as the insured’s agent and that the insured was bound by the contents of the signed application and OAF1 form.

Relying on s. 233(1)(a)(i) and (ii) of the Insurance Act, the court found the insured provided false particulars and knowingly failed to disclose material facts, which prejudiced the insurer’s underwriting decision.

The claim was therefore invalid and indemnity forfeited.