Brian Smith

Following a successful motion by the defendant to compel the plaintiff to attend a neuropsychological assessment, which necessitated a trial adjournment, the parties made written submissions on costs.

The court awarded the defendant partial indemnity costs of $4,868.71 for the motion.

However, because the defendant delayed in arranging the assessment and notifying the plaintiff, the court awarded the plaintiff $3,762.90 for costs thrown away on wasted trial preparation.

The net costs award of $1,106.71 was ordered payable by the plaintiff to the defendant in any event of the cause.

The Court dismissed the appeal and upheld decisions finding that complaints challenging Indian Act registration provisions were bare attacks on legislation, not discrimination in the provision of services under s. 5 of the Canadian Human Rights Act.

The Tribunal’s dismissal was upheld because legislation itself is not a service under that provision.

The applicant insurer sought a declaration that the respondent insurer had a duty to defend their mutual insured in an underlying environmental contamination action.

The underlying action alleged that fuel oil migrated from the insured's property to a neighbouring property.

The respondent denied coverage based on an environmental liability exclusion clause.

The court found that the respondent had a duty to defend because the pleadings left open the possibility that the initial escape of contaminants was 'sudden and accidental', which would trigger an exception to the exclusion clause.

The court ordered the insurers to share the defence costs equally based on equitable principles.

The defendant dentist brought a motion for partial summary judgment in a dental malpractice action, arguing that claims relating to treatment before a specified date were statute‑barred under the Limitations Act, 2002.

The plaintiffs had originally commenced an action concerning later dental treatment but later amended the pleading to include earlier procedures and alleged failures to treat additional teeth.

The court held that the amendments asserted new causes of action rather than merely providing further particulars of the original claim.

Applying the discoverability principles under ss. 4 and 5 of the Limitations Act, the court found the plaintiffs knew or ought to have known of the potential negligence years earlier based on communications with subsequent dental specialists.

The claims relating to treatment before the specified date were therefore outside the limitation period.

In a costs endorsement following motions brought by co-defendants, the court held that a responding defendant was entitled to recover costs from the unsuccessful moving defendants because her participation was reasonable and directly engaged her vital interests.

The court declined to award costs against an insurer whose stay motion concerned only the contractual claim between it and the plaintiff.

Applying the principles that costs generally follow the event and must remain fair, reasonable, and proportionate, the court reduced the hours claimed and fixed costs on a partial indemnity basis.

Costs of $1,921.00 inclusive of HST were awarded against the moving co-defendants only.

On a summary judgment motion by a commercial alcohol vendor added years after a motor vehicle accident, the court considered both a limitations defence and the substantive negligence claim.

Applying the post-amendment Rule 20 framework, the court held the discoverability issue under the Limitations Act, 2002 could not fairly be resolved summarily because the record left genuine issues requiring trial concerning diligence and when the vendor's alleged involvement ought to have been known.

However, the court concluded there was no genuine issue requiring trial on breach of the standard of care.

On the evidentiary record, the plaintiff could not prove that the vendor knowingly sold to a minor, sold to someone who appeared underage, or had apparent reason to doubt the authenticity of the identification presented.