Laurie A. Tucker

The defendant sought an adjournment of a five-week civil jury trial on the grounds of late document disclosure regarding the plaintiff's tip income.

The plaintiff opposed, citing prejudice due to the seven-year delay since the accident, witness availability, and increasing monetary thresholds.

The court denied the adjournment, finding that suitable measures could mitigate prejudice to the defendant and that the prejudice to the plaintiff and the broader impact on the administration of justice outweighed the defendant's need for delay.

The successful defendants in a motor vehicle accident action sought an order for priority of payment of their costs before the plaintiffs paid their own lawyers' fees and disbursements, and that these costs be paid from the damages awarded to the adult plaintiffs and costs recovered from the unsuccessful defendant.

The court denied the request, finding no legal basis for such an order where there was no mutuality of debts between the parties for set-off, distinguishing it from solicitor's lien cases where set-off applies between parties to a judgment.

Following a 34-day jury trial for a fatal motor vehicle accident, the court determined several post-verdict issues.

The jury awarded damages to a minor plaintiff who sustained a traumatic brain injury and to his half-sister, while finding the co-defendants not liable.

The court declined to amend the jury's $55,000 award for post-secondary studies, finding it was not a mere clerical error.

The court exercised its discretion to award prejudgment interest from the date the insurer had actual knowledge of the claim, despite the lack of formal written notice under the Insurance Act.

A management fee of $30,000 was awarded based on the real and substantial possibility that the minor plaintiff would be found incapable of managing his property upon turning 18.

On costs, the court declined to give weight to the unsuccessful defendant's non-compliant global settlement offer because it failed to allocate amounts among the separately represented plaintiffs.

The unsuccessful defendant was ordered to pay the plaintiffs' partial indemnity costs and the successful defendants' costs up to the date it admitted liability via a Sanderson order.

The plaintiffs brought a motion for court approval of a settlement reached on behalf of two infant plaintiffs, who were claimants under the Family Law Act following their father's car accident.

The court identified several deficiencies in the evidence, including the lack of a breakdown between damages and pre-judgment interest, unclear plans for the settlement funds, conflicting information regarding the family's living situation, and an apparent undervaluation of the infant plaintiffs' claims for loss of care, guidance, and companionship.

The court also noted the absence of recommended neuropsychological and in-home assessment reports.

Consequently, the court was unable to approve the settlement and ordered counsel to appear in court for further directions.

The corporate defendants brought a motion for the production of pre-accident clinical counselling notes and for a further independent psychiatric examination of the plaintiff, two weeks before the scheduled trial of a motor vehicle accident claim.

The court granted the production of the clinical notes, finding them highly relevant to the co-plaintiff's Family Law Act claim for loss of care, guidance, and companionship.

However, the court dismissed the request for a further psychiatric examination, ruling it unreasonable and procedurally unfair to require the plaintiff to undergo another examination on the eve of trial without evidence of a significant change in her condition.

Following a motion where the defendant sought summary judgment dismissing a slip and fall claim and leave to amend its statement of defence, the court addressed the issue of costs.

The plaintiffs successfully resisted the summary judgment motion, which constituted the primary issue, while the defendant succeeded in obtaining leave to amend its defence to plead that it was not an occupier under the Occupiers’ Liability Act.

Applying the factors under Rule 57 of the Rules of Civil Procedure, the court found that success was divided but favoured the plaintiffs.

Substantial indemnity costs were declined as the defendant’s motion was not unreasonable.

Partial indemnity costs were awarded, adjusted for divided success.

The defendant brought a motion for summary judgment dismissing a slip‑and‑fall claim, arguing it was not an occupier under the Occupiers’ Liability Act because the walkway where the plaintiff fell was not included in its lease.

The plaintiffs argued there were genuine issues requiring trial regarding whether the defendant exercised sufficient control over the walkway to qualify as an occupier and whether it could be liable under common law negligence.

The court held that evidence showing employees inspected and salted the walkway and that the entrance was used almost exclusively by the defendant’s customers raised a genuine issue requiring a trial on occupier status and negligence.

The court also granted leave to the defendant to amend its statement of defence to plead that it was not an occupier.

The motion for summary judgment was dismissed.